In spite of the marked success of the Federal Water Pollution Control Act (FWPCA – 33 USC 1251 et seq) and subsequent amendments in restoring and protecting our waterways, the Department of Justice (DOJ) has of late increasingly resorted to unrelated law to inject the concept of strict criminal liability for accidental spillage of oil. The application of strict liability for the spillage of oil can engender criminal penalties for accidental, unintentional spills in the same manner as if the spill was a result of an intentional, purposeful breach of the law. This paper describes the impact of a threat of imposition of strict criminal liability on coordination and communication between those directing a spill response. It describes the chill created when the threat of such liability becomes a reality and the resulting constraints imposed when that specter surfaces, constraints that are both self-imposed and imposed on coordinators by their legal advisors. The paper also identifies a solution in the form of legislation d aimed at limiting the use of unrelated law in oil spills to pull the teeth from this threat without allowing real criminals to escape. Importantly, it also reveals the increased threat to the environment caused by the imposition of strict criminal liability in oil spills resulting an unnecessary degradation of response effectiveness. It also suggests a unique opportunity for bi-lateral support for environmental protection from both commercial and environmental interests.

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