Pure economic loss claims Under the Oil Pollution act: Combining policy and congressional intent

Columbia Journal of Law and Social Problems

Volumn 45, Issue 1, 2011, Pages 1-44

  Davis, Andrew B ^a  

^a Columbia Law School ^*  (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 83455201518     PISSN: 00101923     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (208)

1. NATL COMM'N ON THE BP DEEPWATER HORIZON OIL SPILL AND OFFSHORE DRILLING, DEEP WATER: THE GULF OIL DISASTER AND THE FUTURE OF OFFSHORE DRILLING, REPORT TO THE PRESIDENT 1-3, 8-15 (2011) [hereinafter Report to the PRESIDENT), available at http://www.oilspillcommission. gov/sites/default/files/documents/DEEPWATER- ReporttothePresident-FINAL.pdf.
2. Brett Anderson, Louisiana Seafood Shortage Lamented Far From the Gulf, TIMES-PICAYUNE (New Orleans), Sept. 26, 2010, at A1;
3. Justin Gillis & Campbell Robertson, On the Surface, Oil Spill in Gulf is Vanishing Fast, N. Y. TIMES, July 28, 2010, at A1.
4. Anderson, supra note 6; Gillis & Robertson, supra note 6.
5. See, e.g., REPORT TO THE PRESIDENT, supra note 1 at 189.
6. See, e.g., id. (discussing the stigma attached to unoiled areas); Ed Anderson, Oil Spill Remains a Problem with Tourists; State Still Battling to Change Perception, IMES-PICAYUNE (New Orleans), July 25, 2010, at E1 (noting that many people were still unsure whether it was safe to eat at local restaurants selling seafood from the gulf);
7. Laura Figueroa, Fla. Snaps to It in Bid to Attract Tourists, WASH. POST, July 26, 2010, at A04 (discussing tourism industry's efforts to regain business lost from oil spill);
8. Kari C. Barlow, Top Stories of the Year: No. 1 - BP Oil Spill Spared Northwest Florida, NW. FLA. DAILY NEWS (Dec. 31, 2010, 12:52 PM) (noting "lingering perception that the beaches aren't up to their pre-oil spill condition), http://www.nwfdailynews.com/news/oil-36191-northwest-spill.html.
9. Mark Guarino, Gulf Oil Spill Aftermath: Will Region Regain Lost Jobs?, CHRISTIAN SCI. MONITOR, Sept. 20, 2010, http://www.csmonitor.com/USA/2010/0920/ Gulfoil-spill-aftermath-Will-region-regain-lost-jobs.
10. Pub. L. No. 101-380, 104 Stat. 484(1990)
11. (codified as amended in scattered sections of 33 U. S. C., 43 U. S. C., and 46 U. S. C.).
12. 33 U. S. C. § 2702 (bX2XE) (2006).
13. REPORT TO THE PRESIDENT, supra note 1, at 186 ("[T]here is no easy legal answer to the question of how closely linked those lost profits or earnings must be to the spill before they should be deemed compensable. The search for such a rationale endpoint for liability has already stymied the Gulf Coast Claims Facility in its processing of claims. The absence of clear and fair procedures for systematically evaluating such claims deserves focused attention as the lessons from the Deepwater Horizon spill are learned.") (internal citation omitted).
14. See also David P. Lewis, Note, The Limits of Liability: Can Alaska Oil Spill Victims Recover Pure Economic Loss?, 10 ALASKA L. REV. 87, 136-40 (1993);
15. Thomas J. Wagner, Recoverable Damages Under the Oil Pollution Act of 1990, 5 U. S. F. MAR. L. J. 283, 297-98 (1993).
16. Mario J. Rizzo, A Theory of Economic Loss in the Law of Torts, 11 J. LEGAL STUD. 281, 281(1982).
17. See also Mauro Bussani et al., Liability for Pure Financial Loss in Europe: An Economic Restatement, 51 AM. J. COMP. L. 113, 113(2003). Other statements of the rule are similar.
18. See, e.g., RESTATEMENT (SECOND) OF TORTS § 766C (1979) ("One is not liable to another for pecuniary harm not deriving from physical harm to the other...."). The draft Restatement states that the economic loss rule means that "[i]n general, there is no liability in tort for pure economic loss caused unintentionally and without dishonesty or disloyalty... [where] [p]ure economic loss means pecuniary harm not resulting from an injury to the claimant's person or property."
19. RESTATEMENT (THIRD) OF TORTS: ECON. TORTS & RELATED WRONGS § 8(1), (2) (Council Draft No. 2, 2007).
20. Compensation is generally awarded when harm to the plaintiffs own person or property leads to the financial loss. See RESTATEMENT (SECOND) OF TORTS §§ 924 (b), 924 (d), 927(2), 928 (b), 929(1) (b) (1979).
21. This situation is known as relational loss. See Ronen Perry, The Economic Bias in Tort Law, 2008 U. ILL. L. REV. 1573, 1574(2008) ("Relational economic loss is purely economic loss that stems from physical injury to the person or property of a third party, or to an ownerless resource."). While this category represents a subset of economic loss claims and encompasses most economic losses resulting from an oil spill, this Note does not treat it separately.
22. See, e.g., Byrd v. English, 43 S. E. 419, 420 (Ga. 1903) (holding that lost profits resulting from a power outage are not recoverable);
23. Stevenson v. E. Ohio Gas Co., 73 N. E.2d 200 (Ohio Ct. App. 1946) (refusing recovery for lost profits resulting from an explosion that caused physical harm to the surrounding area but not to plaintiff's person or property).
24. The rule against recovery for pure economic loss is sometimes traced to Cattle v. Stockton Waterworks Co., (1875) L. R. 10 Q. B. 453 (Eng.).
25. See Ballard Shipping Co. v. Beach Shellfish, 32 F.3d 623, 628 (1st Cir. 1994); Rizzo, supra note 16, at 294.
26. The term "economic loss rule," however, is relatively new. RESTATEMENT (THIRD) OF TORTS: ECON. TORTS & RELATED WRONGS § 8 cmt. a (Council Draft No. 2, 2007) ("[t]he first references in United States case law to an 'economic loss rule' appeared in the early 1980s.").
27. Anthony v. Slaid, 52 Mass. (11 Met.) 290, 291(1846).
28. 275 U. S. 303(1927). This case has been discussed heavily in the literature.
29. See, e.g., Victor P. Goldberg, Recovery for Pure Economic Loss in Tort: Another Look at Robins Dry Dock v. Flint, 20 J. LEGAL STUD. 249(1991);
30. David R. Owen, Recovery for Economic Loss Under U. S. Maritime Law: Sixty Years Under Robins Dry Dock, 18 J. MAR. L. & COM. 157(1987);
31. Trey D. Tankersley, Comment, The Robins Dry Dock Rule: The Tar Baby of Maritime Tort Law, 25 TUL. MAR. L. J. 371(2000).
32. Robins, 275 U. S. at 307.
33. Id. at 309. Holmes found this principle to be self-evident, remarking that "no authority need be cited" for this proposition. Id.
34. La. ex rel. Guste v. M/V Testbank, 752 F.2d 1019, 1022 (5th Cir. 1985) (en banc).
35. See, e.g., Redman v. John D. Brush & Co., 111 F.3d 1174, 1182 (4th Cir. 1997) (denying recovery for economic losses caused when plaintiffs valuable coins were stolen from a defective safe, remarking that "a plaintiff who is not in privity of contract with the defendant cannot maintain an action for negligence... based on purely economic losses");
36. Dundee Cement Co. v. Chem. Labs., Inc., 712 F.2d 1166, 1171-72 (7th Cir. 1983) (denying recovery for lost profits caused when defendant's truck overturned and blocked access to plaintiffs business);
37. Neb. Innkeepers, Inc. v. Pittsburgh-Des Moines Corp., 345 N. W.2d 124, 128 (Iowa 1984) (holding that businesses cannot recover economic losses from the builder of a bridge when negligent construction caused the bridge to be closed).
38. See also Ballard Shipping Co. v. Beach Shellfish, 32 F.3d 623, 628 (1st Cir. 1994) (noting that "the doctrine forbidding recovery of [purely economic] losses [has not] had 'exclusive' application in admiralty.").
39. Ronen Perry, Economic Loss, Punitive Damages, and the Exxon Valdez Litigation, 45 GA. L. REV. 409, 418-19 (2011) (noting that the federal courts only recognize "a few narrow exceptions" and that a small minority of state courts have replaced the Robins rule with a "more generous approach.").
40. This is not the only exception to the general principal that a party may not recover for pure financial loss, but it is the only one pertinent to this Note. For a list of other exceptions, see Barber Lines A/S v. M/V Donau Maru, 764 F.2d 50, 55-56 (1st Cir. 1985).
41. 501 F.2d 558 (9th Cir. 1974).
42. See, e.g., La. ex rel. Guste v. M/V Testbank, 752 F.2d 1019, 1026-27 (5th Cir. 1985) (en banc) (following Union Oil and holding that although the economic loss rule remains intact, commercial fishermen could recover for lost profits caused by a chemical spill);
43. Miller Indus, v. Caterpillar Tractor Co., 733 F.2d 813, 819 (11th Cir. 1984);
44. Burgess v. MTV Tamano, 370 F. Supp. 247, 250 (D. Me. 1973) (allowing commercial fishermen to sue for a tortious invasion of a public right to fish).
45. See Victor P. Goldberg, Recovery for Economic Loss Following the Exxon Valdez Oil Spill, 23 J. LEGAL STUD. 1, 4-8 (1994) (discussing the development of the exception in a section focused on the favored status of seamen in maritime law); Lewis, supra note 13, at 97 (noting that courts have recognized "an exception to the [Robins] rule's application for commercial fishermen who suffer economic injury caused by maritime torts); Perry, supra note 26, at 455-56 (noting that recovery of lost fishing profits by "commercial fishermen, oystermen, crabbers, etc." is the "single well-defined exception" to Robins rule).
46. See, e.g., Henderson v. Arundel Corp., 262 F. Supp. 152, 160 (D. Md. 1966)
47. aff'd, 384 F.2d 998 (4th Cir. 1967)
48. (considering Ninth Circuit decisions but agreeing with the reasoning of Casado v. Schooner Pilgrim, Inc., 171 F. Supp. 78, 80 (D. Mass. 1959), which rejects the idea that a "'special rule' obtains for fishermen").
49. See, e.g., Channel Star Excursions, Inc. v. S. Pac. Transp. Co., 77 F.3d 1135, 1138 (9th Cir. 1996) ("Union Oil is limited to the environmental sphere; if it is under admiralty law, it can only be said to have carved out a unique exception to the Robins Dry Dock rule by placing a duty on oil drillers to fish and the marine ecosystem.");
50. Dempster v. Louis Eymard Towing Co., 503 So.2d 99, 101 (La. Ct. App. 1987) ("Oppen is distinguishable from the instant case since there is no allegation that the defendants fell into the category of 'oil spillers.'"). 2235.
51. See In re Exxon Valdez, 767 F. Supp. 1509, 1518 (D. Alaska 1991) ("[T]his court does not understand how, as a matter of principle, the rule in Robins Dry Dock can have application for all claimants who suffer economic loss as a result of a marine tort except commercial fishermen. "); Goldberg supra note 32, at 7 (arguing that the exception grew out of the historical rule of protecting maritime employees from their employers, but that "[wjhatever the actual merits of the fishermen's claims, it should be clear that admiralty law's historical soft spot for seamen and commercial fishermen provides a slender reed on which to base recovery.").
52. Robert J. Rhee, A Production Theory of Pure Economic Loss, 104 NW. U. L. REV. 49, 50-51 (2010).
53. See RICHARD A. EPSTEIN, CASES AND MATERIALS ON TORTS 1166 (8th ed. 2004).
54. This is, of course, not to say that these are the only justifications offered in the literature. For other theories, see, e.g., Anita Bernstein, Keep It Simple: An Explanation of the Rule of No Recovery for Pure Economic Loss, 48 ARIZ. L. REV. 773, 793(2006) (arguing, from a descriptive standpoint, that the rule exists because it is simple enough for jurors and average Americans both to understand and apply); Rhee, supra note 36, at 91-92 (arguing that society has a normative preference for production and thus protects the factors of production and assets integrated into the production function, and not the factors of outcome).
55. See Bernstein, supra note 39, at 803 (quoting Ultramares Corp. v. Touche, 174 N. E. 441, 444 (N. Y. 1931));
56. Fleming James, Jr., Limitations on Liability for Economic Loss: A Pragmatic Appraisal, 25 VAND. L. REV. 43, 45(1972) (The explanation... is a pragmatic one: the physical consequences of negligence usually have been limited, but the indirect economic repercussions may be far wider, indeed virtually open-ended.").
57. Ultramares, 174 N. E. at 444 (denying recovery of lost profits resulting from an accountant's mistake).
58. See Bussani et al., supra note 16, at 129 ("[I]n a complex economy, pure economic losses are likely to be serially linked to one another. The foregone production of a good, for example, often generates losses that affect several downstream individuals and firms who would have utilized the good as an input in their production process, and so on. "); Perry, supra note 26, at 420-21. For example, when a person is physically injured, her "relatives, customers, creditors, suppliers, employers, and partners" may also suffer some level of financial loss, and that secondary loss may cause further loss to other parties. Id. at 21.
59. See Barber Lines A/S v. M/V Donau Maru, 764 F.2d 50, 54 (1st Cir. 1985) (noting that allowing pure economic loss claims would "draw vast numbers of injured persons within the class of potential plaintiffs in even the most simple accident cases");
60. Dundee Cement Co. v. Chem. Labs., Inc., 712 F.2d 1166, 1172 (7th Cir. 1983) (" (T]here is a legitimate fear that a crushing burden of litigation would result from allowing recovery for economic damages-");
61. Stevenson v. E. Ohio Gas Co., 73 N. E.2d 200, 203 (Ohio Ct. App. 1946) ("[T]o permit recovery of damages in such cases would open the door to a mass of litigation which might very well overwhelm the courts....").
62. Barber Lines, 764 F.2d at 54 (1st Cir. 1985) (noting that the possibility of "a large number of different plaintiffs each with somewhat different claims... threatens to raise significantly the cost of even relatively simple tort actions."). See also Rizzo, supra note 16, at 283 ("The appearance of nonrecovery for negligently induced losses arises out of the desire to reduce litigation costs. When there is more than one possible plaintiff and when the appropriate contracting costs are low, the law seeks to channel economic loss through the party suffering harm to his person or property....").
63. See, e.g., FED. R. CRV. P. 23.
64. RESTATEMENT (THIRD) OF TORTS: ECON. TORTS & RELATED WRONGS § 8 cmt. a, (Council Draft No. 2, 2007). To illustrate this point, the restatement uses the example of "[a] large fire and explosion at a gas plant caus[ing] widespread physical harm shutting businesses in the vicinity for days, putting many of the plant's employees out of work, and inconveniencing many of the plant's customers." Id. at illus. 2. Professor Goldberg argues that "[a]s the chain of causation lengthens, the difficulties with ascertaining the appropriate level of mitigation multiply." Goldberg, supra note 32, at 17. This could not only distort incentives, but also increase the cost of litigation.
65. It is, of course, always an option to cease the action altogether, but in some cases, the activity is socially desirable.
66. Perry, supra note 26, at 425 (citing La. ex rel. Guste v. M/V Testbank, 752 F.2d 1019, 1029 (5th Cir. 1985)).
67. See Perry supra note 26, at 426 (citing Dundee Cement Co. v. Chem. Labs., Inc., 712 F.2d 1166, 1171 (7th Cir. 1983);
68. Leadfree Enters., Inc. v. U. S. Steel Corp., 711 F.2d 805, 808 (7th Cir. 1983)).
69. RESTATEMENT (THIRD) OF TORTS: ECON. TORTS & RELATED WRONGS § 8 cmt. b (Council Draft No. 2, 2007). Indeed, under certain circumstances, economic damages are measured and compensated.
70. See Robert L. Rabin, Tort Recovery for Negligently Inflicted Economic Loss: A Reassessment, 37 STAN. L. REV. 1513, 1525(1985) ("Lost profits, wages, and other monetary expectancies involve assessments of tangible value that have been entertained on countless occasions in contract and property disputes.").
71. See, e.g., S. Port Marine, LLC v. Gulf Oil Ltd. Pship, 234 F.3d 58, 66-68 (1st Cir. 2000) (allowing lost profit damages awarded by a jury that represented a loss of business at a marina because the marina was forced to delay a project after a gasoline spill destroyed parts of the marina, necessitating repair).
72. Francesco Parisi et al., The Comparative Law and Economics of Pure Economic Loss, 27 INT'L REV. L. & ECON. 29, 31(2007) ("[T]he likelihood and extent of economic loss have a degree of foreseeability that does not differ qualitatively from the foresight of other non-economic consequences of a typical tort situation. "). For example, an oil spill will undoubtedly harm the interests of fishermen, as evidenced by the numerous claims by commercial fishermen and their subsequent carve-out from the Robins rule.
73. See RESTATEMENT (THIRD) OF TORTS: ECON. TORTS & RELATED WRONGS § 8 cmt. b (Council Draft No. 2, 2007). Additionally, the cases with the least problems of proof are likely to be where the claimant had some type of contractual relationship with the party who was physically injured by the defendant's negligence. In this case, "[t]he ability of a claimant to secure protection from a loss through the claimant's contract with the property's owner is another reason not to impose liability-" Id.
74. See also Berschauer/Phillips Constr. Co. v. Seattle Sch. Dist. No. 1, 881 P.2d 986 (Wash. 1994) (holding that the court should intervene where there is the possibility of private ordering);
75. Bily v. Arthur Young & Co., 834 P.2d 745, 769 (Cal. 1992) (same).
76. See BRUCE FELDTHUSEN, ECONOMIC NEGLIGENCE 12 (4th ed. 2000) ("there is an important qualitative difference between injury to a human being, and damage to property or economic expectations alone-a human being is not a thing, and... a personal injury is not merely a special type of economic loss.")
77. TONY WEIR, A CASEBOOK ON TORT 6 (9th ed., London: Sweet & Maxwell 2000).
78. Bussani et al., supra note 16, at 127-28 (noting that the argument for protecting physical property over intangible wealth "rests on a silent premise... [that] the law cannot simultaneously protect all interests....") .
79. See Christian Witting, Distinguishing Between Property Damage and Pure Economic Loss in Negligence: A Personality Thesis, 21 LEGAL STUD. 481, 505-13 (2001) (arguing that "[t]he role of property is essential to self-constitution and in defining the limits of the individual vis-à-vis others in a way that purely abstract holdings of wealth cannot be.").
80. See generally Stephen R. Perry, Protected Interests and Undertakings in the Law of Negligence, 42 U. TORONTO L. J. 247(1992).
81. See Perry, supra note 26, at 423 ("[A]ny distinction between property damage and purely economic loss in terms of interest-hierarchy is hard to justify, [because]... property is a manifestation of wealth."); Bernstein, supra note 39, at 775 (calling the theory that property should have preference over pecuniary harm "overbroad, if not fatuous."). This is especially true for categories of property that can be readily liquidated.
82. See Rabin, supra note 51, at 1534 (arguing that disproportionate penalties for wrongful behavior are a significant reason why judges have not allowed recovery for pure economic loss).
83. Bussani et al., supra note 16, at 130 ("The danger of disproportionate consequences resulting from minor blameworthiness is of course an issue of fairness no matter what kind of damages have been caused-").
84. See, e.g., id. at 132-34; W. Bishop, Economic Loss in Tort, 2 OXFORD J. LEGAL STUD. 1, 1(1982).
85. Bussani et al., supra note 16, at 133 ("[T]he economic definition of social loss [is] the sum of all private losses and gains generated by a given action. "). The formula provided in the text accompanying this footnote merely rearranges the terms.
86. Goldberg, supra note 32, at 20 (stating that "a failure to recognize the offsetting behavior of others would result in an overstatement of the social harm.").
87. Perry, supra note 26, at 428 (emphasis added).
88. Id. at 428 & n. 78 (citing multiple sources for the proposition that "[t]his view is now firmly established in the academic literature."). Perhaps a more nuanced view is that "either ignoring the reliance losses or compensating them is likely to give the wrong result [in terms of deterrence, but]-it is preferable to err on the side of ignoring the reliance losses." Goldberg, supra note 32, at 15. See also Bussani et al., supra note 16, at 138-43 (arguing for optimal liability rules depending on the theoretical relationship between private and public costs).
89. See, e.g., Russell Brown, Still Crazy After All These Years: Anns, Cooper v. Hobart and Pure Economic Loss, 36 U. BRIT. COLUM. L. REV. 159, 161 n. 8(2003) (calling the assumption of excess capacity "dubious").
90. Rizzo, supra note 16, at 286 (arguing that economic losses resulting from "cutting off the supply of a vital input" or "the destruction of an output and the derivative effects on those who are part of the marketing process for that good" represent real social costs). See also Mario J. Rizzo, The Economic Loss Problem: A Comment on Bishop, 2 OXFORD J. LEGAL STUD. 197, 201-04 (1982). Cf. Bussani et al., supra note 16, at 149 ("In most real life cases [where production is shut down due to closure of public services or infrastructures, both of which are key inputs to production], the pure economic loss of the victims... constitutes a gross over-estimate of the true social loss, and the exclusionary rule is correctly applied to avoid excessive liability and over-deterrence.").
91. Bernstein, supra note 39, at 775.
92. See generally, Eric Kades, Windfalls, 108 YALE L. J. 1489, 1531(1999) (describing how windfalls to large groups in society are difficult to capture through the judicial system in the current legal regime).
93. Scholars differ over what categorizations are appropriate, although the majority of the attempts focus on the same variables. This Note, however, has no intention of becoming involved in the debate over proper categorizations, and thus does not create a new taxonomy. For other taxonomies, see, e.g., Giuseppe Dari-Mattiacci & Hans-Bernd Schäfer, The Core of Pure Economic Loss, 27 INT'L REV. L. & ECON. 8, 12-15 (2007) (containing 14 groups, one of which is "oil spills");
94. Herbert Bernstein, Civil Liability for Pure Economic Loss Under American Tort Law, 46 AM. J. COMP. L. 111, 113-25 (1998) (containing three groups: intellectual services, defective products, and interference with use of resources);
95. William Bishop & John Sutton, Efficiency and Justice in Tort Damages: The Shortcomings of the Pecuniary Loss Rule, 15 J. LEGAL STUD. 347, 360-61 (1986) (containing eight groups); Bussani et al., supra note 16, at 117-20 (containing four groups: ricochet loss, transferred loss, closures of public service and infrastructures, and reliance upon flawed information or professional services).
96. For the comprehensive categorization, see Bernstein, supra note 39, at 782-93 (presenting four categories: cases involving a contract-like relationship between plaintiff and defendant, impediments to the plaintiffs regular business operations, emotions mixed with financial loss, and harm to intellectual property).
97. Id. (quoting Bussani et al., supra note 16, at 118 (internal citations and quotation marks omitted)).
98. Bernstein, supra note 39, at 783 & n. 53 (placing Robins within this category).
99. Id. at 784 (noting that tort law generally "reject[s] negligent interference with contract" and that "[a] long history of case law rejects separate actions by insurance companies against tortfeasors for harm to the insured persons" (internal citations and quotation marks omitted)).
100. RESTATEMENT (SECOND) OF TORTS § 821C cmt. b, illus. 2; cmt. g, illus. 7, 8(1979).
101. Cf. Goldberg, supra note 32, at 8-11 (recognizing that some have considered commercial fishermen to be surrogate owners of not-yet-caught fish).
102. *4 (E. D. La. Dec. 4, 2009).
103. Ballard Shipping Co. v. Beach Shellfish, 32 F.3d 623, 624 (1st Cir. 1994).
104. Bernstein, supra note 39, at 789-90 (providing examples of evacuations and closures).
105. Browne Lewis, It's Been 4380 Days and Counting Since Exxon Valdez: Is It Time to Change the Oil Pollution Act of 1990?, 15 TUL. ENVTL. L. J. 97, 101(2001).
106. 33 U. S. C. §§ 1251-1387 (2006).
107. ROBERT V. PERCIVAL et al., ENVIRONMENTAL REGULATION: LAW, SCIENCE, AND POLICY 150-51 (6th ed. 2009) (describing section 311 of the CWA, which helped establish a national policy banning discharges of oil into navigable waters, and subsequent interpretive tests created by the Department of the Interior and federal courts).
108. 42 U. S. C. §§ 9601-9675.
109. Id. § 9601(14) ("The term [hazardous substance] does not include petroleum, including crude oil or any fraction thereof... [or] natural gas, natural gas liquids, liquefied natural gas, or synthetic gas usable for fuel (or mixtures of natural gas and such synthetic gas).").
110. See Deepwater Port Act of 1974, 33 U. S. C. §§ 1501-1524;
111. Outer Continental Shelf Lands Act of 1953, 43 U. S. C. §§ 1331-1356;
112. Trans-Alaska Pipeline Authorization Act of 1973, 43 U. S. C. §§ 1651-1656. For a detailed treatment of the history of oil spill legislation before the OPA, see Lewis, supra note 13, at 101-07.
113. REPORT TO THE PRESIDENT, supra note 1, at 70.
114. See generally 33 U. S. C. § 2702(2006). This section of the OPA, titled "Elements of Liability," contains the rules for various types of recovery applicable to various different entities. Id.
115. See id. § 2702 (a) (stating that "each responsible party for a vessel or a facility from which oil is discharged, or which poses the substantial threat of a discharge of oil, into or upon the navigable waters or adjoining shorelines or the exclusive economic zone is liable"); see also id. § 2701(32) (defining the term "responsible party").
116. Id. § 2702 (a), (b). The full language of the former provision is as follows: Notwithstanding any other provision or rule of law, and subject to the provisions of this Act, each responsible party for a vessel or a facility from which oil is discharged, or which poses the substantial threat of a discharge of oil, into or upon the navigable waters or adjoining shorelines or the exclusive economic zone is liable for the removal costs and damages specified in subsection (b) of this section that result from such incident. Id. § 2702 (a).
117. Id. § 2704 (a) (among other caps, limiting liability "for an offshore facility except a deepwater port, the total of all removal costs plus $75, 000, 000" and "for any onshore facility and a deepwater port, $350, 000, 000"). Id. § 2704 (aX3), (4).
118. See, e.g., Robinson v. Shell Oil Co., 519 U. S. 337, 340(1997) ("Our first step in interpreting a statute is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case.").
119. 33 U. S. C. § 2702 (b) (2) (B).
120. For a more in depth treatment of the consequences of not requiring a nexus between the physical injury and the economic loss, see JOHN C. P. GOLDBERG, LIABILITY FOR ECONOMIC LOSS IN CONNECTION WITH THE DEEPWATER HORIZON SPILL 18-24 (2010), available at http://nrs.harvard.edu/urn-3:HUL. InstRepos:4595438.
121. 33 U. S. C. § 2701(20).
122. 33 U. S. C. § 2702 (a) requires that the discharge be into the navigable waters, which, by definition, is injury to a natural resource.
123. See supra notes 105-106 and accompanying text. This interpretation is also implausible because the Act already provides a provision allowing claimants who have suffered harm to a proprietary interest to recover economic losses. See 33 U. S. C. § 2702 (b) (2) (B). Subsection (E) would therefore encompass so few claims as to hardly be worth its own section.
124. Others have reached the same conclusion on similar grounds. See, e.g., Antonio J. Rodriguez & Paul A. C. Jaffe, The Oil Pollution Act of 1990, 15 TUL. MAR. L. J. 1, 15(1990) ("Although[] the Oil Pollution Act allows recovery for lost profits or impairment of earning capacity, the classes of claimants who may recover is unclear." (internal citation omitted)).
125. 135 CONG REC. H 7898 (daily ed. Nov. 1, 1989) (statement of Rep. Jones). Another Congressman echoed this argument by stating: "Throughout development of H. R. 1465, bill sponsors and conferees have been concerned about... speculative damages. The conferees do not intend for such results to occur. Documentation of prior profits and earnings should be evidenced to support claims for lost profits and diminished earning capacity." 136 CONG REC. H 6933 (daily ed. Aug. 3, 1990) (statement of Rep. Stangeland).
126. See James J. Brudney, Canon Shortfalls and the Virtues of Political Branch Interpretive Assets, 98 CALIF. L. REV 1199, 1226(2010).
127. H. R. 1465, 101st Cong. § 102 (a) (2) (B) (v) (as reported by H. Comm. on Sci., Space, and Tech., Sep. 20, 1989) (allowing recovery of "[d]amages equal to the loss of profits or impairment of earning capacity.... by any claimant who derives at least 25 percent of his or her earnings from the activities which utilize such property or natural resources....").
128. H. R. REP. NO. 101-242, pt. 2, at 151 (Report by the Committee on Merchant Marine and Fisheries, 1989). The committee listed part-time fishermen as an example of persons who should be able to recover for economic losses but would be unable to do so under the 25% qualifier. Id.
129. H. R. REP. No. 101-242, pt. 1, at 29 (emphasis added). The report also described the legislation as "a proper and balanced response to our Nation's needs both to increase preventative measures against oil spills and to respond to a spill should it occur." Id. 132. Statutes in derogation of the common law are narrowly read.
130. See, e.g., Shaw v. Railroad Co., 101 U. S. 557, 565(1879) ("No statute is to be construed as altering the common law, farther than its words import. It is not to be construed as making any innovation upon the common law which it does not fairly express.").
131. H. R. REP. NO. 101-653, at 4(1990) (Conf. Rep.) [hereinafter Conference Report]
132. reprinted in 1990 U. S. C. C. A. N. 779, 781. The Conference Report states: "Subsection [2702] (b) (2) (E) provides that any claimant may recover for loss of profits or impairment of earning capacity resulting from injury to property or natural resources. The claimant need not be the owner of the damaged property or resources to recover for lost profits or income." Id.
133. See Tanguis v. M/V Westchester, 153 F. Supp. 2d 859, 867 (E. D. La. 2001) ("The Court finds that OPA establishes an entirely new, federal cause of action for oil spills."). Other courts have implicitly acknowledged this by holding that the Act preempts state maritime claims and supersedes other federal maritime claims.
134. See, e.g., Gabarick v. Laurin Mar. (Am.) Inc., 623 F. Supp. 2d 741, 750 (E. D. La. 2009) (holding that the OPA preempts maritime law);
135. Nat'l Shipping Co. of Saudi Arabia v. Moran Mid-Atl. Corp., 924 F. Supp. 1436, 1447 (E. D. Va. 1996) (same)
136. aff'd, 122 F.3d 1062 (4th Cir. 1997).
137. The case law is limited because the OPA encourages settlement by requiring claimants to demand relief from the responsible party before suing in court. See 33 U. S. C. § 2713 (a) (2006) ("[A]ll claims for removal costs or damages shall be presented first to the responsible party-").
138. In re Cleveland Tankers, Inc., 791 F. Supp. 669, 679 (E. D. Mich. 1992)
139. ("The bright-line rule as set forth in [La. ex rel. Guste v. M/V Testbank, 752 F.2d 1019, 1040 (5th Cir. 1985)] applies to the claimants and serves to bar their economic loss claims because they have not alleged physical injury to a proprietary interest."). This interpretation occurred before other federal circuits held that pure economic loss claims are recoverable under the OPA and has not been revisited by that court.
140. See, e.g., Taira Lynn Marine Ltd. No. 5, LLC v. Jays Seafood, Inc., 444 F.3d 371, 382 (5th Cir. 2006) ("[Section] 2702 (b) (2) (E) allows a plaintiff to recover for economic losses resulting from damage to another's property.");
141. Ballard Shipping Co. v. Beach Shellfish, 32 F.3d 623, 630 (1st Cir. 1994) (noting that the OPA "almost certainly provides for recovery of purely economic damages" as support for its holding that a state statute allowing pure economic recovery is not an excessive burden on maritime commerce);
142. Sekco Energy, Inc. v. M/V Margaret Chouest, 820 F. Supp. 1008, 1015 (E. D. La. 1993) (holding that subsection (E) does not require physical injury to the plaintiffs property in order for the plaintiff to recover economic damages).
143. *3 (E. D. La. Dec. 4, 2009) (allowing a claim for economic losses resulting from inability to access a drilling platform during an oil spill clean-up and noting that such claim would have been barred under federal maritime law);
144. Sekco Energy, 820 F. Supp. at 1015 (holding that the loss of "[f]uture earnings derived from drilling on the Outer Continental Shelf" is a legitimate cause of action under the OPA).
145. 33 U. S. C. § 2702 (b) (2) (E) (2006).
146. Id. § 2702 (b) (2) (E). See Taira Lynn, 444 F.3d at 383 (dismissing an economic loss claim because the claimant neither "raised an issue of fact as to whether any property damage was caused by the pollution incident" nor to whether "their economic losses [were] due to damage to property resulting from the discharge....").
147. 33 U. S. C. § 2701(20). See also GOLDBERG, supra note 117, at 19 (finding that it is reasonable to conclude that "every discharge actionable under OPA is by definition a discharge that results in at least some natural resources damage or loss.").
148. *3 (E. D. La. Aug. 13, 1993) ("Rather than first discussing causation in fact, or 'but for' causation, the Court proceeds to proximate cause, the principle upon which the outcome of this case turns.").
149. See Ballard Shipping Co. v. Beach Shellfish, 32 F.3d 623, 630 (1st Cir. 1994) (assuming that a Rhode Island statute allowing pure economic recovery for harm caused by an oil spill "incorporates the familiar tort limitations of foreseeability and proximate cause-[to] limit the burden imposed on maritime shipping");
150. La. ex rel. Guste v. M/V Testbank, 752 F.2d 1019, 1046 (5th Cir. 1985) (en banc) (Wisdom, J., dissenting) (arguing that the court should not apply the Robins rule to the case at hand, but should instead analyze the harm under the conventional tort principles of foreseeability and proximate cause);
151. Kinsman Transit Co. v. City of Buffalo, 388 F.2d 821, 824-25 (2d Cir. 1968) (using proximate cause analysis to deny recovery for economic losses incurred by the owners of boats or cargo that could not conduct business because an improperly moored ship had broken free, crashed into a bridge, and blocked the river).
152. *2.
153. Taira Lynn Marine Ltd. No. 5, LLC v. Jays Seafood, Inc., 444 F.3d 371, 382-83 (5th Cir. 2006).
154. Gatlin Oil Co. v. United States, 169 F.3d 207 (4th Cir. 1999). Rather than recovering from a responsible party, this case centered on Gatlin's request for reimbursement of removal costs and damages from the Oil Spill Liability Trust Fund because an unknown third party caused the spill. Id. The Fifth Circuit in Taira found that the decision was nonetheless on-point for a subsection (E) analysis because both cases involved the more general definition of compensable damages under section 2702.
155. Taira, 444 F.3d at 383.
156. The language in Gatlin is somewhat confusing on this point. The court holds that the "removal costs and damages specified in section 2702 (b) are those that result from a discharge of oil or from a substantial threat of a discharge of oil into navigable waters or the adjacent shoreline." Gatlin, 169 F.3d at 211. The court then denies recovery "for fire damage because the evidence did not establish that the fire caused the discharge of oil into navigable waters or posed a substantial threat to do so." Id. at 212. Although this reasoning turns around the analysis, by preventing recovery for the fire damage, the court implicitly found that the fire damage was not the legal result of the oil spill.
157. *7-8 (W. D. La. Mar. 31, 2010) (allowing past summary judgment plaintiffs claim for economic losses suffered when the government responded to an oil spill in a river by temporarily suspending traffic until a cleanup was complete);
158. *2-4 (E. D. La. Dec. 4, 2009) (allowing past summary judgment plaintiffs claim that an oil spill prevented it from accessing its production platform, leading to decreased profits).
159. Participation in the GCCF is voluntary. Any participant unwilling to participate may still use the normal OPA process to obtain a remedy. Frequently Asked Questions, GULF COAST CLAIMS FACILITY, § 5. 53, http:// gulfcoastelamsfacility.com/faq (last visited Sept. 15, 2011).
160. BP Claims: About the $20 Billion Dollar [sic] BP Claims Fund, THE BP CLAIMS FUND, http://www.thebpclaimsfund.com (last visited Sept. 15, 2011) ("BP has agreed to contribute $5 Billion [sic] per year to the fund until the $20 billion dollars [sic] is depleted, including $5 billion in 2010.").
161. David Segal, Should the Money Go Where the Oil Didn't?, N. Y. TIMES, Oct. 24, 2010, at BU1.
162. Jim Snyder, Feinberg Urges Denied Spill Claimants to File Fresh Applications, BLOOMBERG (Jan. 19, 2011, 5:32 PM), http://www.bloomberg.com/news/ 2011-01-19/feinberg-urges-denied-spill-claimants-to-file-fresh-applicationa. html.
163. Frequently Asked Questions, GULF COAST CLAIMS FACILITY, §§ 7.74, 7.75, http://gulfcoastclaimsfacility.com/faq (last visited Sept. 15, 2011).
164. Segal, supra note 160. See also REPORT TO THE PRESIDENT, supra note 1, at 189 (profiling Patricia Denny, a property manager in Destin, Florida, who claims that she was called a liar when she posted videos and photos showing that oil was not on the beaches).
165. GULF COAST CLAIMS FACILITY, OVERALL STATUS REPORT 8(2011), available at http://www.gulfcoastclaimsfacility.com/GCCF-Overall-Status-Report.pdf [hereinafter OVERALL STATUS REPORT]. Similarly, the fund has paid over $1.9 billion to individual lost profits and earnings. Id. at 7.
166. REPORT TO THE PRESIDENT, supra note 1, at 198, depicts the maximum extent of oil, including the areas where the shores received light, medium, or heavy tarballs. Matching this to the GCCF reported data on Florida is suggestive. A GCCF report lists by county the amount paid to those who claim a loss in that county, claim a loss and are residents of that county, or both.
167. See GULF COAST CLAIMS FACILITY, FLORIDA PROGRAM STATISTICS (STATUS REPORT AS OF OCTOBER 10, 2011) (2011), available at http://www. gulfcoastclaimsfacility.com/GCCF-Florida-Status-Report.pdf. This includes claims from multiple counties that were far from the furthest reaches of the oil. Id. There were hundreds of claims from unoiled counties along the northwestern Gulf shore (e.g., Wakulla County, Taylor County, Levy County, Citrus County, and Hernando County) and the southern Gulf shore (e.g., Sarasota County, Collier County, and Monroe County). Id. For example, the GCCF has paid out over one hundred million dollars for loss claims in Collier County, and two million dollars for losses occurring in Polk County, which is land-locked. Id.
168. Frequently Asked Questions, GULF COAST CLAIMS FACILITY, § 1.1, http://gulfcoastclaimsfacility.coni/faq (last visited Sept. 15, 2011) ("[T]he GCCF and Mr. Feinberg as Claims Administrator are acting for and on behalf of BP in order to fulfill BP's statutory obligations as a responsible party under OPA; however, the GCCF and Mr. Feinberg exercise their own judgment with respect to the evaluation and payment of claims.").;
169. For example, until the Gulf spill it was politically insignificant that "[b]etween 1996 and 2009, in the U. S. Gulf of Mexico, there were 79 reported loss of well control accidents - when hydrocarbons flowed uncontrolled either underground or at the surface." REPORT TO THE PRESIDENT, supra note 1, at 226.
170. For instance, recovery for losses caused by the Exxon Valdez disaster occurred through the courts, even though the absence of comprehensive oil pollution legislation may suggest that a compensation fund would have been more necessary in that instance. See, e.g., In re Exxon Valdez, 270 F.3d 1215, 1247 (9th Cir. 2001) (affirming a jury award of "compensatory damages of $22 million for chum salmon fishermen and of $30 million for setnetter fishermen").
171. Interpreting a Rhode Island statute, the Ballard court hints at this problem when it says, "[w]e cannot be sure how Rhode Island courts will develop these concepts [of foreseeability and proximate cause) in the context of oil pollution cases. Depending on Rhode Island's solutions, the burdens imposed by the Compensation Act, financial and administrative, may be substantial but they may also be tolerable." Ballard Shipping Co. v. Beach Shellfish, 32 F.3d 623, 630 (1st Cir. 1994).
172. See Issac Ehrlich & Richard A. Posner, An Economic Analysis of Legal Rulemaking, 3 J. LEGAL STUD. 257, 265-66 (1974) (arguing that rules lead to more certain outcomes and encourage settlement, and that uncertainty leads to more lengthy proceedings);
173. George L. Priest, Measuring Legal Change, 3 J. L. ECON. & ORG. 193, 200(1987) (finding significant evidence that cases which go to trial are those where the outcome is most uncertain).
174. Cf. R. Lisle Baker, My Tree Versus Your Solar Collector or Your Well Versus My Septic System? - Exploring Responses to Beneficial but Conflicting Neighboring Uses of Land, 37 B. C. ENVTL. AFF. L. REV. 1, 12(2010) (arguing that "having standards which are unclear before a court applies them to specific facts is better than rules because the uncertainty encourages bargaining").
175. The GCCF has already received almost 500, 000 claims. OVERALL STATUS REPORT, supra note 165, at 1.
176. See also Deepwater Horizon Oil Spill Litigation Database, ENVIRONMENTAL LAW INSTITUTE, http://www.eli.org/Program-Areas/deepwater-horizon-oil-spill- litigation-database.cfm (last visited Sept. 15, 2011).
177. See John E. Calfee & Richard Craswell, Some Effects of Uncertainty on Compliance with Legal Standards, 70 VA. L. REV. 965, 966(1984) (arguing that parties will likely over-comply when a legal rule is unpredictable);
178. Richard Craswell & John E. Calfee, Deterrence and Uncertain Legal Standards, 2 J. L. ECON. & ORG. 279, 299(1986) ("Our analysis shows that if the uncertainty created by the legal system is distributed normally about the optimal level of compliance, and if the uncertainty is not too large - two seemingly plausible assumptions - then the result under normal damage rules will be too much deterrence rather than too little.").
179. Timothy B. Wheeler, Chesapeake's Crabs Offset Gulf Shortage, BALT. SUN, Sep. 29, 2010, at A1 (describing how restaurants have not been affected by the lack of Gulf crabs because the local catch has fully met their demands).
180. The Gulf coast generates approximately $19.7 billion in tourism revenue annually, and the recent spill undoubtedly lowered this figure. REPORT TO THE PRESIDENT, supra note 1, at 191. A national poll found that "29[%] of respondents who were planning to visit [Louisiana] said they were actively canceling or postponing their visits because of the oil spill." Id. See also Press Release, U. S. Travel Ass'n, BP Oil Spill Impact on Gulf Likely to Last 3 Years and Cost 22.7 Billion (July 22, 2010), available at http://www.ustravel.org/news/press-releases/bp-oil-spill-impact-gulf-travel- likely-last-3-years-and-cost-227-billion.
181. This is different than "direct economic cause" standard used in other contexts. See, e.g., Desiano v. Warner-Lambert Co., 326 F.3d 339 (2d Cir. 2003) (referring to "direct cause" in the fraud context);
182. Kathleen Flynn Peterson, LITIGATING TORT CASES § 61:75 (Roxanne Barton Colin & Gregory S. Cusimano, eds., 2010), available at Westlaw LITGTORT (claiming that a "'direct cause' is a cause that had a substantial part in bringing about" the harm or injury).
183. Note that water is a natural resource under the OPA. 33 U. S. C. § 2701(20) (2006).
184. *7-8 (W. D. La. Mar. 31, 2010) (allowing past summary judgment claims for lost profits resulting from inability to use the river for transport).
185. This raises another interesting question: would a moratorium on fishing result in "direct economic injury"? Unfortunately, there is no bright-line answer to this question, but the court should look to whether the moratorium is designed to respond to the current spill or to prevent a future incidents. It is noteworthy, however, that government action did not categorically bar claims made in previous cases. See, e.g., Sekco Energy, Inc. v. M/VMargaret Chouest, 820 F. Supp. 1008, 1014-15 (E. D. La. 1993) (allowing a summary judgment claim for profits lost after the Minerals Management Service "shut-in" Sekco's production platform). See also discussion of Dunham-Price, supra note 189.
186. The only case to raise an issue of compensation of a hotel under the OPA was dismissed because the claimant had not first brought the claim to the responsible party. See Boca Ciega Hotel, Inc. v. Bouchard Transp. Co., 844 F. Supp. 1512, 1514 (M. D. Fla. 1994). Hotel guests, of course, often use the natural resources as part of their vacation. Calling this direct use by the hotel, however, would defeat the rule's purpose by transforming the rule into an ordinary proximate cause analysis.
187. See Implementing the Recommendations of the BP Oil Spill Commission Act of 2011, H. R. 501, 112th Cong. (2011). As currently written, the bill does not address economic liabilities. Id. The Report to the President implies, however, that any legislation should address who may recover for pure economic losses.
188. REPORT TO THE PRESIDENT, supra note 1, at 186 (The absence of clear and fair procedures for systematically evaluating [pure economic loss] claims deserves focused attention as the lessons from the Deepwater Horizon oil spill are learned.").
189. See Chevron, U. S. A., Inc. v. Natural Res. Def. Council, Inc., 467 U. S. 837, 865(1984) (suggesting that Congress delegates authority to agencies because of their "great expertise");
190. U. S. C. § 2713 (e) (2006) (delegating authority to promulgate "regulations for the presentation, filing, processing, settlement, and adjudication of claims... against the (Oil Spill Liability Trust] Fund").
191. This expertise is a primary reason why courts give deference to duly enacted agency policy decisions. See Pension Benefit Guar. Corp. v. LTV Corp., 496 U. S. 633, 651-52 (1990) ("[P]actical agency expertise is one of the principal justifications behind Chevron deference.");
192. Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 DUKE L. J. 511, 517-18 (1989) (arguing that courts should defer to an agency's greater expertise and accountability).
193. See 5 U. S. C. § 553(2006).
194. See Kenneth W. Starr, Judicial Review in the Posf-Chevron Era, 3 YALE J. ON REG. 283, 312(1986) (arguing that Chevron "returns the power to set policy to democratically accountable officials"). Justice Kagan has advanced the argument that relying on agencies that are controlled by the President creates accountability in two main ways. "First, presidential leadership enhances transparency, enabling the public to comprehend more accurately the sources and nature of bureaucratic power. Second, presidential leadership establishes an electoral link between the public and the bureaucracy, increasing the tatter's responsiveness to the former."
195. Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245, 2331-32 (2001). Congress also has some control of agencies through investigatory oversight and appropriations committees.
196. See generally Mathew D. McCubbins & Thomas Schwartz, Congressional Oversight Overlooked: Police Patrols versus Fire Alarms, 28 AM. J. POL. SCI. 165(1984);
197. Mathew D. McCubbins et al., Structure and Process, Politics and Policy: Administrative Arrangements and the Political Control of Agencies, 75 VA. L. REV. 431(1989). The courts keep agencies accountable by taking a hard look at agency decisions.
198. See Motor Vehicle Mfrs. Ass'n of U. S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U. S. 29, 42-44 (1983).
199. The OPA delegated authority to the President to promulgate procedures for claims against the Oil Spill Liability Trust Fund. 33 U. S. C. § 2713 (e) (2006). The Coast Guard has instituted limited procedures.
200. See, e.g., 33 C. F. R. § 136. 231 (defining the "authorized claimants"). However, there is no authority to promulgate regulations that would govern in a lawsuit between the claimant and responsible party. As a result, the actual consequences of these regulations are not readily apparent.
201. See Summary of the Comprehensive Environmental Response, Compensation, and Liability Act (Superfund), U. S. ENVTL. PROT. AGENCY, http://www.epa.gov/ lawsregs/laws/cercla.html (last visited Sept. 15, 2011) ("Through CERCLA, EPA was given power to seek out those parties responsible for any release and assure their cooperation in the cleanup. EPA cleans up orphan sites when potentially responsible parties cannot be identified or located, or when they fail to act. Through various enforcement tools, EPA obtains private party cleanup through orders, consent decrees, and other small party settlements. EPA also recovers costs from financially viable individuals and companies once a response action has been completed.").
202. 33 U. S. C. § 2706 (e) (1).
203. An agency would not have automatic access to data compiled by the GCCF because it is not a governmental organization. See Frequently Asked Questions, GULF COAST CLAIMS FACILITY, § 1.1, http://gulfcoastelaimsfacility.com/faq (last visited Oct. 19, 2011). However, the GCCF has been relatively forthcoming with data, see supra Part III. C, and may provide even more specific data upon request. Regardless, an agency could conduct an independent inquiry, much as occurred with the
204. REPORT TO THE PRESIDENT, supra note 1.
205. See About the Commission, NAT'L COMM'N ON THE BP DEEPWATER HORIZON OIL SPILL & OFFSHORE DRILLING, http://www.oilspillcommission. gov/page/atout-commission (last visited Oct. 19, 2011).
206. See Chevron, U. S. A., Inc. v. Natural Res. Def. Council, Inc., 467 U. S. 837(1984).
207. See also Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U. S. 967(2005) (applying Chevron deference after courts had previously interpreted the statute at issue);
208. United States v. Mead Corp., 533 U. S. 218(2001) (considering when Chevron deference should apply).