Responder Immunity

The Federal Water Pollution Control Act (FWPCA – also known as the Clean Water Act), as amended by the Oil Pollution Act of 1990 (OPA 90), contains a responder immunity provision. That provision states, in pertinent part:

• (A)A person is not liable for removal costs or damages which result from actions taken or omitted to be taken in the course of rendering care, assistance, or advice consistent with the National Contingency Plan or as otherwise directed by the President relating to a discharge or a substantial threat of a discharge of oil or a hazardous substance.
• (B)Subparagraph (A) does not apply –
  (i)To a responsible party;
  (ii)To a response under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et seqq.);
  (iii)With respect to personal injury or wrongful death; or
  (iv)If the person is grossly negligent or engages in willful misconduct.

While there is no recorded instance of a responder being found liable under this provision, there have been a number of instances where a responder have been sued civilly with the plaintiff alleging personal injury or wrongful death and that the responder was grossly negligent or engaged in willful misconduct. Such allegation requires the responder to spend time and money hiring an attorney and mounting a defense.

Responders have contended for years that the immunity provision should be broader, but without success to date. Some individuals were concerned that reopening OPA 90 might lead to other, less desirable changes, while others wanted to ensure that the right to receive compensation by persons suffering actual damages from gross negligence or willful misconduct was not impaired.

This memorandum will attempt to review currently available legal defenses to responder liability and propose a legislative change that might transfer liability elsewhere.

Federal Contractor Immunity

The U.S. Supreme Court first recognized the concept of federal contractor immunity, at least by that name, in Boyle v. United Technologies Corp. Plaintiff sued the designer and builder of a military helicopter. Plaintiff’s decedent died when the helicopter in which he was co-pilot crashed at sea and he was unable to egress because the door opened out and he was unable to overcome the water pressure that was keeping the door closed. The court held that in areas involving uniquely federal interests, state civil liability laws may be replaced by federal law. State law is displaced where there is a significant conflict between an identifiable federal policy or interest and the operation of state law or the application of state law would frustrate objectives of federal legislation. In this case, state law which imposed liability for design defects in military equipment was displaced where (a) the United States approved reasonably precise specifications; (b) the equipment conformed to those specifications; and (c) the supplier warned the federal government about dangers in the use of equipment known to the supplier but not to the federal government.

The court held in Yearsley v. W.A. Ross Construction Corp., decided 48 years previously, that if authorization to carry out specific work was validly conferred by a federal agency to a private party, that is, if what was done was within the Constitutional power of the Congress, there is no liability on the part of the contractor for executing the federal agency’s will. The remedy, if at all, lies with the federal government through the Court of Claims. In the instant case, defendant contractor had been hired by the U.S. Army Corps of Engineers to make improvements on the Missouri River for the purposes of navigation. The work involved construction of dikes to produce artificial erosion. Some of that artificial erosion removed parts of plaintiff’s land. The federal government, not the contractor, was responsible for damages.

These decisions created two different avenues for potential federal contractor immunity defenses. If the contractor did what the federal government had contracted it to do, any liability shifted to the federal government. Alternatively, if the federal government knowingly approved of the contractor’s work in advance, any liability again shifted to the federal government. The court later added a caveat to the federal contractor immunity defense. In Campbell-Ewald Co. v. Gomez, it ruled that federal contractors do not enjoy derivative absolute immunity where the contractor exceeds its authority and violates federal law

Responders to discharges of oil or hazardous substances are taking their direction from the Federal On-Scene Coordinator (FOSC) in accordance with the National Contingency Plan, not from the responsible party. The federal government has a vital and uniquely federal interest in prompt, thorough, and environmentally responsible responses to these discharges. Application of state civil liability law would frustrate that federal interest. During the federal response, the FOSC provides reasonably precise directions regarding details of the response effort. Equipment utilized during the response has been pre-approved by the federal government. During the response effort, the FOSC receives candid advice from the responders as to the various response options available; the FOSC then selects the method to be utilized. This reasoned response to discharges appears to meet the standards of both the Boyle and the Yearsley doctrines.

FTCA

The Federal Torts Claims Act (FTCA) provides a limited waiver of sovereign immunity and allows private persons to sue the federal government in federal court for most torts committed by persons (federal employees) acting on behalf of the United States. Among the exemptions are claims arising from assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.

The FTCA only authorizes tort lawsuits against the United States itself; it expressly shields individual federal employees from personal liability for torts that they commit within the scope of their employment. In other words, the FTCA makes the remedy against the United States under the FTCA exclusive of any other civil action or proceeding for money damages that might otherwise be available against the employee whose act or omission gave rise to the claim. Congress prohibited courts from holding federal employees personally liable for torts committed within the scope of their employment in order to avert what Congress perceived as an immediate crisis involving the prospect of personal liability and the threat of protracted personal tort litigation for the entire Federal workforce. The individual employee generally remains immune from tort liability for torts committed within the scope of his or her employment even if a provision of the FTCA forecloses the plaintiff from recovering monetary damages from the United States itself.

Gradually, several court decisions found exceptions to the broad immunity afforded federal employees by the FTCA. The first significant exception was with regard to federal employees utilizing private vehicles on government business. In 1961, Congress responded by enacting the Federal Drivers Act, which granted specific immunity to federal employees for any damage to property or for personal injury, including death, resulting from the operation by any employee of the government of any motor vehicle while acting within the scope of his office or employment.

Then the Supreme Court issued its decision in the case of Westfall v United States, holding that the FTCA, as then worded, applied only to discretionary acts of federal employees. Congress responded by enacting the Federal Employees Liability Reform and Tort Compensation Act of 1988, better known as the Westfall Act. That legislation replaced the Federal Drivers Act and amended the FTCA to override the Supreme Court decision and make it abundantly clear that tort immunity was provided across the board to federal employees acting within the scope of their employment. Interestingly, in the uncodified findings and purposes portion of the legislation, Congress stated:

Recent judicial decisions and particularly the decision of the United States Supreme Court in Westfall v. Erwin, have seriously eroded the common law tort immunity previously available to Federal employees.

The erosion of immunity of Federal employees from common law tort liability has created an immediate crisis involving the prospect of personal liability and the threat of protracted personal tort litigation for the entire Federal workforce.

The prospect of such liability will seriously undermine the morale and well-being of Federal employees, impede the availability of agencies to carry out their missions, and diminish the vitality of the Federal Tort Claims Act as the proper remedy for Federal employee torts.
 
Congress further stated:

It is the purpose of this Act to protect Federal employees from personal liability for common law torts committed within the scope of their employment, while providing persons injured by the common law torts of Federal employees with appropriate remedy against the United States.

The common law tort immunity provided to federal employees by the FTCA has not been subsequently challenged.

OPA 90

One of the purposes of OPA 90 was to ensure prompt responses to discharges or the substantial threat of discharge of oil or hazardous substances. To that end, Congress requires owners and operators of covered vessels and marine transportation-related shoreside facilities to contract in advance for the provision of such service.

The legislation also provides responders immunity for injury and damages resulting from actions taken or omitted to be taken in accordance with the National Contingency Plan or otherwise directed by the President (who has delegated such authority to the FOSC.
For the same reasons that Congress found it important to grant personal immunity to federal employees for torts committed within the scope of their employment, immunity should be granted in the same manner to responders for torts committed in the course of rendering care, assistance, or advice consistent with the National Contingency Plan or as otherwise directed by the President relating to a discharge or the substantial threat of a discharge of oil or a hazardous substance.

The absence of broad responder immunity under current law may lead some responders to refrain from taking action directed by an FOSC or from proposing novel approaches to response in a particular situation, especially when the action directed or the novel approach under consideration poses any possibility of increasing the environmental impact. Such hesitation on the part of responders, while understandable, is highly undesirable in a spill response. Congress emphasized in enacting OPA 90 the importance of a timely and effective response. The U.S. Coast Guard reiterated that approach in its regulations implementing OPA 90, particularly with regard to the regulations addressing salvage and marine firefighting (SMFF). Experience indicates that delay in response to a marine spill inevitably results in increased response requirements and increased environmental damages.

Proposal

Individuals and entities responding to discharges or the substantial threat of discharges of oil or hazardous substances into waters of the United States are acting as federal employees. Their reluctance to become involved due to the risk of tort liability will impede the availability of federal agencies to perform the vital mission of maintaining and enhancing the cleanliness of those waters and the environment. It is proposed that the FTCA be amended to include within its provision of immunity from common law and admiralty tort liability actions (as well as actions involving foreign sovereigns) taken or omitted to be taken in accordance with the National Contingency Plan or otherwise directed by the President or the FOSC by individuals and entities responding to discharges or the substantial threat of discharge of oil or hazardous substances.