POST WRITTEN BY: Simon K. Kieser, Pace Law School, LLM Candidate in Global Environmental Law, 2015; Awardee of the Richard L. Ottinger Environmental Scholarship; Graduate Studies Liaison, Student Bar Association; LLM Representative, Environmental Law Society.

Thanks to today’s international media network, information is shared more easily than ever, putting increasing pressure on companies to do the right thing. Unfortunately, this has not always been the case and for centuries entire industries, such as the Petroleum industry, did their part to severely damage our planet, with few consequences.

Although it is refreshing to see that the media and the public at large now keep a closer eye on events, such as Deepwater Horizon, holding companies accountable for their actions, similar events outside the USA still go unnoticed and unpunished.

Focusing on inadequate oil spill litigation, this article provides an outline of Australia’s worst oil spill disaster in history, where Mother Earth had to “take one more for the team”.

On 21 August 2009 Australia faced the worst offshore oil spill in history, the Montara oil spill, lasting 74 days and releasing approximately 4.74 million liters of oil during that period. The Montara oil spill started with an uncontrolled release of oil and gas and occurred on an oil rig, operated by PTTEP Australasia (PTTEP AA), 690km west of Darwin, in the Timor Sea.

The Montara incident occurred after several uncontrolled releases of petroleum, containing oil and gas, leaked and the gas suddenly ignited due to metal sparks. Seawater then entered the casing of the well, creating a difficult situation to cap the well with a relief well.  Although PTTEP AA was the operator of the oil rig and thus, was the designated Combat Agency to stop the oil spill, PTTEP AA was incapable to handle the situation and severely prolonged disaster mitigation operations. Although Australia was lucky that no lives were lost and no oil reached the Australian coastline, Montara did have a disturbing impact on the environment, marine life and the Timor Costal area.

Both Australian and Indonesian fishermen have reported that the water around the Timor Sea area became cloudy and itchy after the Montara incident, due to the chemical dispersant sprayed on the oil slick. In addition, sightings of a dead blue whale, dead dolphins and dead fish have been reported and locals state that fish colonies and the vegetation (seaweed farms) has severely suffered.

As stated under the Commission of Inquiry Report, the root causes for Montara were a series of negligent actions and carelessness which included the failure to maintain two well barriers, the failure to verify barriers and the lack of employees’ competence, leading to deficient decision making and poor management of change control.

Adding to the unsatisfied operation standard, PTTEP AA neglected to install a blow-out preventer and ignored to change the 244mm Pressure Containing Cap (PCC) to a 320mm PCC. Once the 244mm PCC had been removed, no new PCC had been re-installed, leaving the well open to the atmosphere.

As if these inexcusable mistakes would not have been enough, incompetent operators and negligent cement workers built ineffective barriers in the shoe track, creating a “wet shoe”. As there was no isolating cement plug in the upper wellbore and no completion Brine, the casing filled with seawater, worsening the situation and triggering the well-blow-out and its associated struggles to stop oil leaking from the well.

The evidence that Montara could have been easily avoided and the fact that the root causes of Montara lead back to PTTEP AA’s ignorance and incompetence are undisputed and thus, one would assume that PTTEP AA would be held accountable, right? Unfortunately, this is not the case.

Although PTT Exploration and Production (PTTEP), the holding company of PTTEP AA, found itself in the Darwin Magistrates Court (Australia’s lowest court) three years after the oil spill, PTTEP only faced fines of up to AUD $1.7 million. Even though these fines seem shockingly low for Australia’s worst oil spill disaster in history, after PPTEP pleaded guilty to the charges, the court handed down a judgment, fining PTTEP in the amount of ONLY AUD $510, 000.

For any person with decent respect for Mother Earth, this judgment is certainly hard to swallow. As Australia has some of the most fragile ecosystems in the world, why would any Australian court make such a poor decision?

The magistrate was of the opinion that PTTEP had made every effort to transform the company’s operation practices and culture to ensure that similar incidents will not occur in the future. Furthermore, the magistrate took into consideration that PTTEP had no prior incident record and that PTTEP pleaded guilty.

One might start to wonder whether these “considerations” are appropriate and adequate for an oil spill that spewed out into the Timor Sea for 74 days at a rate of up to 500,000 liters per day and covering an area of 90,000 square kilometers. I think not!

Unfortunately, the actual environmental harm and long lasting impacts were not considered nor were impacts beyond Australia’s border considered. Yet, the argument that the long lasting environmental harm is of huge magnitude is a difficult one to make.

Unfortunately, no baseline studies had been done before in this area and thus, we know little of how effective the “clean-up” was and how badly the environment is suffering. Furthermore, due to the strong current and isolated location, it is hard to physically see the impacts from the distance and thus, studies and care have been neglected. After all, out of sight, out of mind.

Over the past weeks (five years after the oil spill), new reports have emerged that the Indonesia government is still trying to seek justice for the environment and for the 100,000 Indonesian people that live in the Timor Sea area. According to the reports, the Indonesian government has asked the Australian government to help make PTTEP AA launch an investigation and proper scientific study to determine the effects of the oil spill.

Unfortunately, up until now, the Indonesian government was powerless to seek merited justice. The reason for this ongoing battle against PTTEP AA and the Australian government is that the Montara incident occurred inside Australian territory and Australia has not yet demonstrated any interest in helping.

A statement from the Australian Department of Foreign Affairs and Trade stated: “Scientific studies were conducted in Australian territory following the oil spill. We understand that remote sensing indicated that oil did not reach the Indonesian coastline.”

In addition, a statement from PTTEP AA concluded that “PTTEP Australasia is aware of the claims that the 2009 Montara incident negatively impacted West Timorese fishing and seaweed farming communities. To date, we have not received any credible evidence that oil from Montara caused damage to the environment in West Timor.”

However, the environmental harm that Indonesia witnesses on a daily basis clearly proves otherwise – one only has to take a closer look.

Has mankind really become so arrogant and ignorant that we happily sacrifice our planet at the expense of our future generations only because….we are too lazy to care?

Perhaps one reason why the environment had to “take one more for the team” is because Australia is very easily persuaded to have its natural resources extracted, offering its extraction operations to virtually anyone who is interested, with very little government control and extraction operation regulations.

Another reason could be that, unlike the USA, Australia did not have a much needed “polluter pays principle” at the time the Montara incident occurred. Consequently, PTTEP AA did no face any severe penalties and got away easily.

A third reason might be that people just don’t care.

Whatsoever, in today’s world, with an overflow of international media networks, we do no longer have an excuse to be ignorant. For the sake of Mother Earth, it is time that we hold companies accountable for their negligent and ignorant actions that harm our planet.

Related Reading:

• Tina Hunter, The Montara Oil Spill and the National Marine Oil Spill Contingency Plan: Disaster Response or Just a Disaster?, 24 Austl. & N.Z. Mar. L.J. 46 (2010).