Time For A Department Of The Environment

• Main Author: Sielen, Alan B.
• Format: Text
• Language: unknown
• Published: University of Maine School of Law Digital Commons 2016
• Subjects: Arctic; Climate change; Alaska
• Online Access: https://digitalcommons.mainelaw.maine.edu/oclj/vol16/iss2/9; https://digitalcommons.mainelaw.maine.edu/cgi/viewcontent.cgi?article=1087&context=oclj

The BP Deep Water Horizon Oil Spill (Gulf Oil Spill) in April 2010 resulted in eleven deaths and one of the largest environmental catastrophes in American history. At the time of the Gulf Oil Spill, the United States had entered a period of relative calm regarding the dangers of offshore oil and gas activities. Oil spills no longer commanded the attention they received in the early days of environmental activism when, in 1969, a major spill at an oil platform six miles off the coast of Santa Barbara, California galvanized public attention and led to the first Earth Day in 1970. The Santa Barbara spill, along with a growing national environmental consciousness, led to a modest strengthening of national laws to guard against the hazards of offshore oil and gas exploration and development. However, these environmental initiatives, industry reassurances of the safety of its operations, and growing concern about other pollution sources all contributed to the growing complacency. Although the ecological effects of the chronic toxic dribs and drabs of offshore operations continued to trouble some experts, such effects received relatively little attention in contrast with the drama of a large spill When a major accident made headlines—such as the blowout of an exploratory well at the Bay of Campeche in the Gulf of Mexico in 1979—it was generally seen as an aberration; not something symptomatic of larger, systemic problems relating to the environmental management of offshore drilling. In just a few years, drilling disasters had fallen from the covers of national magazines to a relatively low place on most environmental agendas. In 2004, the U.S. Commission on Ocean Policy concluded that, “[s]ince the 1969 Santa Barbara blowout, the U.S. oil industry’s environmental and safety record has improved significantly, as has the regulatory regime of [Department of the Interior]. Today, safety stipulations are more stringent, technologies are vastly improved, inspections are regular and frequent, and oil spill response capabilities are in place.” In addition, deferred action on then President George W. Bush’s proposal to drill for oil in the Arctic National Wildlife Refuge also helped turned down the heat on a once inflammatory topic. Even major oil tanker accidents such as the Exxon Valdez spill in Alaska’s Prince William Sound in 1989, and the environmentally catastrophic accident of the tanker Prestige off the coast of Spain in 2002, receded from the public mind. By the time of President Obama’s election in 2008, climate change and other environmental issues had, for some time, replaced oil pollution in the hierarchy of environmental concerns. Several weeks before the Gulf Oil Spill, the Obama administration felt comfortable enough with the public acceptance of offshore drilling—despite some local opposition—to announce plans for opening large areas along the Atlantic coastline, the eastern Gulf of Mexico, and the north coast of Alaska, to oil and natural gas drilling. The Gulf Oil Spill would change all this. Soon, the discrepancy between the perceived low risk of offshore drilling operations and the reality of the Gulf Oil Spill would raise probing questions about the safety of offshore activities and the role of government and industry in preventing and responding to accidents. Of particular concern was the reliability of the oil industry and government regulators in assessing and communicating to the public the safety and environmental risks of offshore drilling. The fact that government and industry officials had not been content to simply state that exploration at the Deepwater Horizon site was within the boundaries of acceptable risk (a dubious proposition in itself events would demonstrate), but, instead, insisted that such activities were “fail-safe” did not go unnoticed. In May 2010, President Obama created the National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling (the Commission) to study the causes of the disaster and to recommend needed reforms to make offshore energy production safer. The nonpartisan Commission was co-chaired by former Senator Bob Graham and William K. Reilly, the U.S. Environmental Protection Agency (EPA) Administrator under President George H.W. Bush. In examining the industry culture, poor judgment, and systemic failures leading to the blowout, the Commission concluded that the Gulf Oil Spill was more than an environmental catastrophe whose ecological and human consequences were still not fully understood. According to the Commission, “the disaster in the Gulf undermined public faith in the energy industry, government regulators, and even our capability as a nation to respond to crises . . . . There is much at stake, not only for the people directly affected in the Gulf region, but for the American people at large.” As painstakingly detailed in the Commission report, the Gulf Oil Spill was a preventable accident. The failure by industry and by government regulators to take the necessary steps to prevent the blowout goes beyond individual lapses of judgment. Rather, it indicts an entire culture of industry and governmental interaction in which a regulated industry was allowed, for all practical purposes, to police itself. The Commission report emphasizes the “systematic” failures “in both industry practices and government policies” that contributed to the disaster and that, without significant reform will likely occur again. U.S. Coast Guard findings in April 2011 as part of the Deepwater Horizon Joint Investigation Team also underscore flaws in emergency training and equipment and a poor safety culture. According to investigations, the drill rig operator Transocean has a culture that can be described as “running it until it breaks,” “only if it’s convenient,” and “going through the motions.” Likewise, the Gulf Oil Spill underscored some of the weaknesses inherent in the nation’s approach to environmental research. The Commission report concluded that, “[s]cientific understanding of environmental conditions in sensitive environments in deep Gulf waters, along the region’s coastal habitats, and in areas proposed for more drilling, such as the Arctic, is inadequate. The same is true of the human and natural impacts of oil spills.” Ultimately, the Commission recommended that “[t]he Department of the Interior should reduce risk to the environment from [outer continental shelf] oil and gas activities by strengthening science and interagency consultation in the [outer continental shelf] oil and gas decision making process.” In the aftermath of the Gulf Oil Spill, the Department of the Interior—whose Minerals Management Service oversaw the operations at the Deepwater Horizon well—responded to the Commission recommendations with some cautious steps. Perhaps the most important of these was the decision by Secretary Ken Salazar to separate energy development and safety functions within the Department of the Interior by creating two new agencies. The Secretary also announced plans for a new advisory committee of academics, industry representatives, and citizens groups to recommend safety measures. These steps appear to offer improvements over the previous system if carried out faithfully and in combination with other needed reforms. When looking at the problem from a broader perspective, however, the new measures fall short of the mark. They perpetuate a system in which important development and regulatory decisions are still located within a conflicted Department of the Interior with an ambivalent environmental mission. In addition to their questionable effectiveness in moderating the outsized influence of developmental interests at the Department of the Interior, the internal changes point to a wider problem concerning environmental regulation and management in the United States: many of the underlying systemic failures that contributed to the Gulf Oil Spill can also be found in the workings of other federal departments and agencies with environmental responsibilities.