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Feinberg Let BP Go Back On Its Word to Compensate "All Legitimate Claims"

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Since the Deepwater Horizon exploded on April 20, ending the lives of eleven men, injuring many others, and causing the largest environmental disaster in United States history, the victims have been waiting for BP to make them whole. Unfortunately, thus far BP's response has been a day late and a dollar short -- many dollars short. Over three thousand people filed claims for personal injuries from the explosion and the resulting oil spill and cleanup effort, but BP paid only a tiny fraction of those claims, totaling less than $6,000. As respiratory problems among cleanup workers and symptoms of depression among coastal residents continue to mount, it shocks me that the fourth-largest corporation in the world has thus far paid such a paltry sum to make amends for the damage it has caused.

The Gulf Coast Claims Facility (GCCF) launched last week, and I am still asking the same question -- when will the victims have justice? As the spill pumped over 200 million gallons of oil into the Gulf of Mexico, entire communities lost not only their livelihood in the worst job market since the Great Depression, but their very way of life. Many have been forced to accept the only available jobs -- working for BP to clean up the contaminated waters and beachfront. Now, these Gulf residents have learned that their clean-up income will be deducted from any lost-wages settlements from BP. If that happens, they will have risked their health to help BP meet its legal obligations, without any net financial benefit for them or their families. Despite federal law requiring BP to pay both lost wages of workers and the clean-up costs, BP is essentially cleaning up the spill at the hands of free labor.

The lessons from the Exxon Valdez debacle make clear that the harmful effects of the oil spill and containment efforts on human health, both apparent and latent, will linger for some time. But lack of health insurance among many people in the fishing and tourism industries is likely keeping significant numbers from seeking medical care. It is imperative that BP and the GCCF provide a comprehensive remedy for physical injuries, including for the accompanying pain and suffering, and that they ensure adequate relief for those whose injuries worsen over time. Scientists and doctors fear that the long-term health consequences of dispersant exposure are not currently known; so it is also crucial that the GCCF broadly interpret its causation standard, or its obligation to compensate these work-related injuries that may seem more remote. And since the GCCF will cease accepting claims after August 23, 2013, BP and the GCCF must ensure that there will be a seamless transfer of remaining claims back to BP, so that those with latent injuries are not left out in the cold when the time comes.

The psychological effect of the spill among Gulf residents and their children is also significant and deeply troubling. As we remember the five-year anniversary of Hurricane Katrina, I strongly urge Ken Feinberg, the Administrator of the GCCF, to reverse his decision not to pay mental health claims. The validity of emotional distress and mental health claims is now widely accepted in the law, in a variety of circumstances, particularly when there is physical injury, or a well-founded fear of latent illness, or other demonstrable trauma. For example, in the 2003 case of Norfolk & Western Railway Company v. Ayers, the Supreme Court, interpreting the Federal Employers' Liability Act "by reference to the evolving common law" of negligence in the States, recognized the right to recover damages for mental anguish based on the fear of developing cancer from workplace exposure to asbestos that had already caused other physical illnesses.

National and local experts have documented rising instances of depression, suicide, and domestic violence in Gulf communities in the wake of the spill. Katrina exacted a huge psychological toll on the Gulf, but the spill's psychological effect may be more severe -- partly because of the cumulative hardships these beleaguered communities must endure along with significant uncertainty about obtaining relief from BP or the new GCCF. BP's recent announcement that it will contribute millions to the States for mental-health aid is a start. But BP and the States must make certain that those funds are targeted to serve individuals, and not squandered on overhead or other administrative costs.

Further, we must not forget the immediate victims of this disaster - the men who lost their lives on board the Deepwater Horizon, and the families they left behind. Under current law, the families of the eleven men who died in the explosion are not entitled to recover the full measure of damages that are available when a person dies in an explosion on land or in an airplane accident at sea. That is why I sponsored the SPILL Act with Charlie Melancon, who represents victims along the Gulf Coast of Louisiana. The SPILL Act, which passed the House of Representatives, updates antiquated laws to ensure that these victims and their families can be fairly compensated.

Justice should not depend on whether a victim dies on land or water, and the victims' families should not be expected to interrupt their grieving to wrestle with illogical legal policies created by outdated laws. I urge the Senate to quickly take up the SPILL Act when they return in September, and ask Administrator Feinberg to truly make the victims whole.