One year and one month after the disaster, the REPSOL company has announced that it has already cleaned up the beaches and seabed where the multiple ecosystems are located. Was he released from liability? Certainly not, because the disaster occurred in its causes and consequences.
By Antonio Peña Jumpa*
February 22, 2023.- One year and one month after the oil spill on the seacoast of Ventanilla, in the Callao region of Peru, there is no solution for all the victims and the responsibility for the serious damage caused is not assumed. What is the oil spill disaster and how can the responsibility of the REPSOL company in this disaster be assessed? In the following lines we offer an initial reflection.
The disaster situation:
It is clear to everyone that what happened on 15 January 2022 after the spill of around 12,000 barrels of oil that occurred on the coast in front of the Pampilla refinery, under the control and management of the REPSOL company, was a disaster situation. People call it an ecological disaster because of its damaging effects on the marine ecological systems (of living beings such as mammals, fish, algae, plankton, birds), which in turn affect the economic and social systems of the people who live in relation to them (fishermen, boatmen, traders, tourists, consumers in general). In practical terms, the disaster affects the entire local economy and the set of rights of people living with marine ecosystems.
But what is a disaster or disaster situation? The definition is not complex, but it tends to be confused.
A disaster is a situation of serious damage with collective effects that can have a "natural cause" or a human cause. The "natural cause" refers to a natural phenomenon, such as an earthquake, a landslide, torrential rain, the eruption of a volcano, a cyclone, among others. Human cause refers to the human action that causes the disaster, such as the declaration or initiation of a war, the use or deposit of chemical waste in a place adjacent to a population, a corporate decision to extract natural resources in a place that affects the population, among other examples.
It should be clarified that the disaster situation is not the "natural cause" or the human cause per se, but a process that integrates other factors or elements that, together, produce the serious damage. The following formula shows the definition:
Disaster = (Hazard X vulnerability) / (resilience X response capacity).
(Source: UN, International Red Cross, and previous articles by the author, on the internet).
Applying the formula to the case of the oil spill disaster, we would have the following analysis:
Oil spill disaster on the coast of Ventanilla and adjacent sites =
(Oil spill hazard from discharge of oil on the coast of Ventanilla X vulnerability of the company and adjacent population to the effects of the hazard) /
(resilience of the company's operators and the adjacent population X response capacity to the hazard occurring on the part of the company itself and the population that will be affected)
the oil spill disaster is not only the danger that occurs when the oil spills in its discharge, but when this danger is multiplied by the vulnerability or deficiency to face the danger on the part of the REPSOL company and the adjacent population that depends on the marine ecosystems.
According to this definition, the oil spill disaster is not only the danger that occurs when the oil spills in its discharge, but when this danger is multiplied by the vulnerability or deficiency to face the danger on the part of the REPSOL company and the adjacent population that depends on the marine ecosystems. This partial result is divided between two factors that are multiplied: the resilience shown by the company's operators and the adjacent population itself, and the capacity for prevention and control of the hazard that occurs on the part of the same operators and the adjacent population. The result of this division is the outcome of the disaster situation.
In short, disaster is not just that "natural" or human cause, but the result of the application of this cause in the face of human vulnerability, diminished by human resilience and capacity for prevention and control. In the end, DISASTER IS A HUMAN PRODUCT (a statement that coincides with the results of the experience of the UN and the Red Cross).
Disaster. Photo: Andean
REPSOL's responsibility:
Following the previous conceptual identification of the disaster situation of the oil spill that occurred on 15 January 2022 in Ventanilla, the oil company REPSOL is responsible. As the owner of the La Pampilla Refinery where the oil was unloaded, the company is responsible for the oil spill disaster situation due to the result that we have known in the multiplication of danger by vulnerability, divided by the resilience and capacity for prevention and human control that corresponds to it. Was the oil company able to foresee the spill? Was the oil company itself able to control the spill once it had occurred? These are the main questions guiding responsibility.
Legally, the type of responsibility can be debated as it is not the REPSOL company that generates the danger, but equally the set of elements of the disaster concept involve it. Thus, the company is not fully responsible for every act related to the spill, such as the unloading of oil by a transport company, or the preparation of the population for a spill if it was coordinated with local governments, but being the owner of the oil that is discharged or being the owner of the economic activity that produces benefits with this oil and being located in a vulnerable area for marine ecosystems, it is liable. This type of liability is legally called Tort Liability.
A year and a month after the disaster, the REPSOL company has announced that it has cleaned up the beaches and seabed where the multiple ecosystems are located. Has it absolved itself of responsibility? Certainly not, because the disaster occurred in its causes and consequences.
Will the company, the state, and the affected population itself be able to confront this type of responsibility to avoid a repetition of similar disasters?
(written in Lima, on February 15, 16 and 17, 2023).
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Antonio Peña Jumpa is a professor at the Pontificia Universidad Católica del Perú and the Universidad Nacional Mayor de San Marcos. Lawyer, Master in Social Sciences and PhD in Laws.
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