Public, Ecological and Normative Goods: The Case of Deepwater Horizon

Abstract

This paper identifies the duty to care for the public interest in the commonly valued ecological goods of the Gulf as one of the basic essential features of the moral significance of the federal policies that govern the Deepwater Horizon Oil Spill. I argue that the Clean Water Act and the Oil Protection Act implicitly provide for a communitarian interpretation of the public and ecological goods of this event that warrants a virtue ethical account of normativity that is ultimately expressed in the duty to care, a duty that is one of the central moral principles that underlies the punitive damages doctrine.

Notes

¹ Other federal laws that contain natural resources damage provisions include the Coastal Zone Management Act, Marine Sanctuaries Act and the Trans-Alaska Pipeline Authorization Act. Various state laws also contain such provisions, such as Louisiana Oil Spill Prevention and Response Act. For the relevant jurisdictions of these statutes, see Strickland (1995).

² See US Environmental Protection Agency, ‘Biological indicators of watershed health/biological integrity,’ retrieved from http://www.epa.gov/bioiweb1/html/biointeg.html. See also Ballentine and Guarraia (1977); Karr and Dudley (1981); and Jackson and Davis (1994); Fischman (2004).

³ On April 20, 2011, an agreement between BP and government agencies entitled: ‘Framework for early restoration addressing injuries resulting from the Deepwater Horizon oil spill’ was signed wherein BP agreed to provide $1 billion for early restoration projects. http://www.gulfspillrestoration.noaa.gov/2011/04/trustees-announce-1-billion-for-gulf-coast-restoration-projects/.

⁴ See the US Geological Survey press release. Retrieved from http://www.usgs.gov/newsroom/article.asp?ID = 2745. See also Guilderson et al. (2009).

⁵ For an elaboration of the axiological features of convergent goods, see Taylor (1995). I am indebted to John Drummond to bringing these senses of the common good to my attention.

⁶ For a related criticism of Callicott's approach, see Shrader-Frechette (1996).

⁷ For a criticism of such approaches, see Duff (2002).

⁸ See Ronen Perry (2008) The economic bias in tort law. University of Illinois Law Review, 1573.

⁹ See Restatement (Second) of Torts, Section 901 (1979); Cf. United States v. Hathaley, 257 F.2d 920, 923 (10^th Cir.) (1958). ‘The fundamental principle of damages is to restore the injured party … to the position he would have been if had it not been for the wrong.’

¹⁰ Potential Congressional Responses to the Supreme Court's Decision in State Farm Mutual Automobile Ins. v. Campbell: Checking and balancing punitive damages, Hearing before the Subcomm. on the Constitution of the Comm. on the Judiciary, 108th Cong. (September 23, 2003) (prepared statement of David G. Owen, expert witness) at 8. Retrieved from http://www.house.gov/judiciary/89462.PDF

¹¹ D.G. Owen, supra note 6, at 8. See also Grimshaw v. Ford Motor Co., 174 Cal. Rptr. 348 (382).

¹² Cf. United States v. Carroll Towing Co., 159, F. 2d, 169 (2d Cir.). (1947); Posner (1972).

¹³ This account of obligation can be seen as a first person expression of the normative principle of Leopold's land ethic. The moral duty of the land ethic principle can be seen as a second order formulation of a first order experience of obligation that arises through the recognition of the common values of ecological goods. The second order formulation of this duty is a third person expression of a first person demand, a demand that has phenomenological features. This conception of first and second order dimensions of normativity refer to constitutive relationships in phenomenological moral theory. See, for example, Drummond (2008); Drummond and Embree (2002); Konopka (2009). This distinction is different from that between first and second order normative principles in moral theory invoked, for example, by Shrader-Frechette (1996).

¹⁴ Texas & P. Ry. v. Behymer, 189 U.S. 468, 470, 47 L. Ed. 905, 23 S. Ct. 622 (1903). See also Holmes (1909).