Navigating Liability Under the Oil Pollution Act of 1990 (OPA 90): How Being a Responsible Party Impacts Your Business

Key Takeaways from OPA 90 for Property Owners, Businesses, and Insurance Companies

1. What is OPA 90?

• OPA 90 establishes a federal framework for oil spill liability and cleanup, ensuring prompt removal and compensation for economic and environmental damages from oil discharges or threats of discharge into U.S. waters and shorelines.
• It applies to nearly all types of oil and imposes strict responsibilities on designated “responsible parties,” assigning clear accountability for costs and damages following incidents like the Exxon Valdez spill.

2. Expansive Scope of Liability

• OPA 90 applies broadly—not just to vessel operators or coastal facility owners, but also to any individual or corporation whose business dealings in oil may threaten navigable waters. This includes landowners near waterways, pipeline owners, marine terminal operators, and cargo shippers.
• Liability can extend to both direct and indirect involvement with oil discharge or the substantial threat of discharge.

3. Strict and Joint Liability

• The law imposes strict liability: responsible parties are liable for cleanup costs and damages regardless of fault or negligence.
• Joint and several liability means plaintiffs can recover full damages from any one or all liable parties, who must then sort out contributions among themselves.

4. Broad Range of Recoverable Damages

• Damages under OPA 90 are extensive and include:
  • Natural Resource Damages (NRDs)
  • Real or personal property damages
  • Loss of subsistence use of natural resources
  • Lost profits or impaired earning capacity
  • Loss of government revenues
  • Increased costs of public services (e.g., emergency response)
  • Removal and damage assessment costs.

5. Who Can Sue?

• Standing to sue is broad: any party suffering actual, concrete injury can claim damages or removal costs.
• Government agencies and tribal governments act as “trustees” and can sue for damages to natural resources on behalf of the public.

6. Defenses Are Limited

• Affirmative defenses exist but are narrowly interpreted:
  • Act of God (rare, unforeseeable natural events)
  • Act of war (formal armed conflict)
  • Act or omission of a third party (if not connected by employment, agency, or contract, and due care was exercised)
• Responsible parties lose all defenses if they fail to report spills, do not cooperate with authorities, or violate safety regulations.

7. State-Level Enforcement

• State statutes often mirror or expand upon OPA 90, increasing risk and complexity for businesses operating in multiple jurisdictions.

More Information:

In today’s complex regulatory climate, environmental compliance is not just the best practice, it is business imperative. The Oil Pollution Act of 1990 (“OPA 90”) established a sweeping federal liability framework that affects owners, operators, and related stakeholders in maritime, energy, and industrial sectors.

Originally affecting those who operated a vessel, owned a costal facility, or those engaged in the oil supply chain. However, scope of liability under this federal law coupled with state equivalent statutes have grown expansively. Most notably, the reach of responsible parties has broadened to individuals and corporations with business dealings in oil that may threaten navigable waters. This article provides a practical overview of the law’s growing expansive reach, core liability provisions, and the increasing risk posed by state-level enforcement.

What is OPA 90?

OPA 90 was enacted in response to the Exxon Valdez oil spill of 1989, one of the worst environmental disasters in U.S. history. It created a unified federal framework that governs liability for oil removal costs and damages arising from discharges (or substantial threat of discharge) into navigable waters, shorelines, and the U.S. exclusive economic zone.¹ Its purpose is to assign clear responsibility and ensure prompt clean up and compensation for economic and environmental harm. OPA 90 applies to virtually all types of oil, from petroleum and crude to sludge and waste oil, and places strict responsibilities on designated “responsible parties.”

Who Can Sue?

Under OPA 90, the test for standing is broad for those seeking to recover damages or removal costs. The claimant must have suffered an actual, concrete, and particularized injury. For governments, OPA 90 specifically designates certain entities as “trustees” for natural resources. These trustees (e.g., NOAA, EPA, U.S. Fish and Wildlife Service, state environmental agencies, and tribals governments) have standing to sue for National Resource Damages (NRDs) on behalf of the public’s natural resources.²

Additionally, under OPA 90 the injury must be traceable to the challenged action (the oil discharge). There must be a causal link between the spill and the damage claimed.

Who is Liable and for What?

A “responsible party” party is any person or entity that:

• Owns or operates a vessel or facility from which oil is discharged.
• Otherwise causes or substantially threatens discharge into protected waters.

This includes owners of oil tankers, cargo shippers, marine terminal operators, pipeline owners, and even landowners near navigable waterways.

What are the Theories of Liability?

The bedrock principle of OPA 90 is strict liability.³ The responsible party is liable for cleanup costs and damages regardless of fault or negligence. OPA 90 also imposes joint and several liabilities when multiple parties are involved, allowing plaintiffs to recover full damages from one or all liable parties who must then sort out contribution amongst themselves.⁴ Recovery may include damage resulting from oil discharges into navigable waters, the exclusive economic zone, or the shorelines of those. While strict, there must be a causal nexus between the discharge (or threatened discharge) and the damage or removal cost claimed. The discharge must be the factual cause of the harm.

Scope of Damages

OPA 90 significantly expands the scope of recoverable damages compared to prior environmental laws. Potentially liable costs include:

• Natural Resource Damages (NRDs): Damages for injury to, destruction of, loss of, or loss of use of natural resources, including the reasonable costs of assessing those damages.
• Real or Personal Property Damages: Damages for injury to, or economic losses resulting from destruction of, real or personal property.
• Loss of Subsistence Use: Damages for loss of subsistence use of natural resources.
• Lost Profit/Impaired Earning Capacity: Damages for loss of profits or impairment of earning capacity due to the injury, destruction, or loss of real or personal property or natural resources. It has been the subject of significant litigation.
• Loss of Government Revenues: Damages for loss of tax revenue or other revenues by federal, state, or local governments.
• Loss of Public Services: Damages to increased costs of public services (e.g., police, fire protection, emergency medical services) provided during or after removal activities.
• Removal Costs: All costs of removal incurred by the U.S. government, a state, or an Indian tribe.
• Damage Assessment Costs: Costs incurred in assessing the damages.

Defenses⁵

Although liability is strict, OPA provides several narrow, affirmative defenses that if proven can absolve a responsible party of liability. These include:

• Act of God: a rare and extraordinary natural event that is unforeseeable and could not be prevented through due care (e.g., an unprecedented tsunami). Courts interpret this defense narrowly.
• Act of War: covers hostilities or conflict-related events. It does not extend to terrorism unless it rises to the level of formal-armed conflict.
• Act or Omission of a Third Party: if the spill was solely caused by a third party not connected by employment, agency, or contract, and the party responsible exercised due care regarding oil, and took precautions against foreseeable third-party actions.

A responsible party forfeits all defenses if they fail to report the spill, do not cooperate with cleanup authorities, and violate safety regulations or commit gross negligence.⁶

View the breakdown of the state laws here.

[1] “Exclusive economic zone” defined as the zone established by Presidential Proclamation Numbered 5030, including the ocean waters of areas referred to as “eastern special areas.” Article 3(1) of the Agreement of the United States of America and the Union of the Soviet Socialist Republics on the Maritime Boundary, signed June 1, 1990.
[2] Oil Pollution Act of 1990, 33 U.S.C. § 2706 (2018).
[3] Savage Servs. Corp. v. United States, 25 F.4th 925, 29 Fla. L. Weekly Fed. C 807 (11th Cir. 2022).
[4] Id. at 931.
[5]  Oil Pollution Act of 1990, 33 U.S.C. § 2702 (2018).
[6]  33 U.S.C. § 2702 (c) (1–3).