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45 Colum. J.L. & Soc. Probs. [i] (2011-2012)

handle is hein.journals/collsp45 and id is 1 raw text is: COLUMBIA JOURNAL OF LAW AND SOCIAL PROBLEMS Volume 45 Number 1 Fall 2011 Copyright © 2011 by the Columbia Journal of Law and Social Problems, Inc. PURE ECONOMIC LOSS CLAIMS UNDER THE OIL POLLUTION ACT: COMBINING POLICY AND CONGRESSIONAL INTENT ........................................................ 1 The Deepwater Horizon Oil Spill in 2010 was a rude reminder of the potentially disastrous consequences of a large oil spill. Many residents and businesses throughout the Gulf Coast suffered financial losses without accompanying physical injury to their property. The common law would deny recovery for such claims on the grounds that physical injury to a proprietary interest must accompany any claim for economic losses. Under the Oil Pollution Act of 1990, however, a claimant need not prove proprietary harm to recover. Yet, because of vague statutory language and underdeveloped case law, precisely when a claimant may recover for a purely economic loss remains unclear. Both the courts and the Gulf Coast Claims Facility, which administers a fund for claims arising from the Deepwater Horizon Oil Spill, accept that proximate cause analysis should limit liability, but have not fleshed out the required nexus between the spill and the financial loss. This creates uncertainty and allows recovery in circumstances not clearly required by the Act's language, both of which impose unwarranted costs on the recovery scheme. To reduce these costs, courts could narrowly interpret the Act's pure economic loss provision to require what this Note calls direct economic injury. The first-best solution, however, is for Congress to delegate authority to the Environmental Protection Agency so that it may construct more informed, flexible, and politically accountable rules regarding recovery for pure economic losses. BALANCING BLIGHT: USING THE RULES VERSUS STANDARDS DEBATE TO CONSTRUCT A WORKABLE DEFINITION OF BLIGHT ........................................................... 45 The Supreme Court's controversial 2005 decision in Kelo v. City of New London held that states could use their power of eminent domain to condemn private property and transfer it to private developers for the purpose of economic development. In the aftermath of this decision, states rapidly amended their eminent domain laws in an effort to strike an appropriate balance between protecting private property rights and promoting the greater good through beneficial redevelopment. In large part, these reforms prohibited the exercise of eminent domain if the public purpose supporting the taking was economic development. However, the efficacy of these reforms at protecting individual property rights was undercut by broad exceptions for blight clearance, which the Supreme Court held a constitutional public purpose in its 1954 decision in Berman v. Parker. In many states, blight is

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