After the Exxon Valdez oil spill 21 years ago in Alaska, Congress set a $75 million cap on how much “responsible parties” must pay in economic damages from oil spills. That liability — for things such as lost tourism and wages — was in addition to what oil companies or others involved would have to pay for the actual cleanup.
With a large oil spill now in the Gulf of Mexico, the $75 million limit may prove inadequate, and that is certainly troubling. But Congress is trying to raise the limit to $10 billion retroactively to apply to companies involved in the gulf spill, and that’s unconstitutional.
Our argument is not that the current $75 million limit on damages is enough to cover losses to businesses and individuals from the spill. It may not be. But the U.S. Constitution forbids “ex post facto” laws. Those are laws that are created or altered to apply to some event after it has already happened.
Article 1, Section 9 of the Constitution states, “No … ex post facto Law shall be passed.” In other words, Congress cannot change the “rules of the game” after it has already been “played.”
For the record, British Petroleum has said it will honor all legitimate claims of damages in the gulf, above and beyond the $75 million cap.
But if that cap is too low, Congress is to blame for not using the two decades after the Exxon Valdez spill to increase it. Trying to raise that limit to $10 billion now, after another spill has taken place, and impose it on BP or other companies is unconstitutional.
As Mark Knoller, White House correspondent for CBS News, wrote, “So much for Article 1, Section 9 of the Constitution.” He lamented that the Constitution’s ban on ex post facto laws seems to apply only “when Congress feels like it.”
Even in the case of the major spill in the gulf, Congress should not unconstitutionally impose a law retroactively.