Bridging the Gulf: using mediated, consensus-based regulation to reconcile competing public policy agendas in disaster mitigation.

Author:Widener, Michael N.
 
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  1. INTRODUCTION

    The SS Deepwater Horizon (1) exploded on April 20, 2010, in its aftermath killing eleven humans and perhaps significant numbers of other animals. (2) The full extent of the destruction from leaking petroleum products from the Macondo 252 well caused by the explosion may never be understood. In addition to the loss of human life, the risk of hypoxia (3) is significant. While "dead zones" presently exist along the coastal regions of the Gulf of Mexico, (4) the end of sea plant life, such as algae, in deepwater areas may hasten the death of aquatic animal life in extensive areas of that ocean system. Then again, the Macondo well's rupture and spill may have no such effect in the long-term. (5) We know for certain, however, that the vessel owners' causation of spilling petroleum products will precipitate extensive debate and disputes, in and out of court, (6) about public policies the Gulfs nations should pursue to minimize the risk of such episodes recurring. Debates will begin with whether the measures implemented in concert with public policies should make a compromised, deepwater wellhead substantially less likely--or altogether impossible.

    These disagreements will pit the competing national interests of the United States of America (U.S.) and of Mexico (7) and other Latin American nations bordering the Gulf against each other. Interests of individual American states in the realms of economy and ecology will be in conflict. Disagreements will engage industries against governments, and the petroleum-exploration-and-capture industry (8) against economic engines such as tourism, food-harvesting, and recreational exploitation of animal resources of the living Gulf. For-profit enterprises will be opposed by species-preservation advocates (9) urging a wide regulatory spectrum of policies ranging from "keep drilling out of the Gulf altogether," to "ecology primacy," to "balancing of needs" viewpoints. (10) Those several species-preservation interest groups will oppose certain of each others' positions. Game fish are an illustration: advocates of deep sea sport fishing for commercial harvest, shore- and pier-fishing, boat chartering for scuba divers, and fish as life forms are all interested in the Florida marlin's welfare. Vilifying of opponents' representatives will be public and pervasive. An environment of mutual distrust will make accommodating competing viewpoints immensely complex.

    Adopting public policies and concurrent regulatory schemes will encounter two hurdles. First will be the coherent understanding of what myriad stakeholders already know and continue to learn from the Deepwater Horizon Macondo well experience. Second will be a rational assessment of the sensible, unemotional alternative courses of action, adopting a vision of human engagement with the Gulf. Momentum will arise to allow certain "experts" to take the lead and heavily influence the ultimately derived policies and regulations. This momentum should be opposed with energy; in this conundrum mixing science and ethics, (11) there are no experts. No philosopher king has emerged among the parties engaged in the Macondo well spill calamity and aftermath during its initial ninety days. No one among environmentalists, civil and petroleum engineers, bureaucrats and officials of local, state, and federal governments has assumed the mantle of wisdom. In truth, no one person or modestly-sized group of persons has--or will have--the experience or the ability to formulate how to protect any ecosystem from the disastrous impact of profound environmental disruption. During 2010, no one can do more than speculate whether the Gulfs disruption will be a temporary nuisance, or gauge the magnitude of ultimate damages from the enormous flow of petroleum escaping the ruptured wellhead, whether economic or ecological.

    There is little reason to "round up the usual suspects" found among the industry "experts" and government leaders who, collectively, failed the American public during the second quarter of 2010. (12) External "authorities" hold little, if any, credibility with the public as problem solvers of the Gulf environment in the short term. (13) Consequently, no particular person or small group should be appointed to pronounce long-term strategies for the Gulfs future occupancy and exploitation. This is not strictly an issue of trust. (14) The central issue is whether citizens can rely on the ability of persons deputized by governments, chosen from among those same persons who neither foresaw an ecological disaster nor made sensible initial decisions about how to address impacts from the calamity. For the Gulf, neither government nor petroleum industry officials should be relied upon to craft solutions addressing competing values of science and ethics. Sound policies must be adopted to limit irreversible ecological effects (15) in long-term crisis management.

    The best accommodation of the vital interests of adversarial stakeholders will require significant, collective intelligence of informed citizens from myriad walks of life. This paper describes how the collective intelligence may be efficiently marshaled. (16) A system for "percolating" problem solving, (17) coupled with a process of mediated collective bargaining, (18) has considerable potential to foster accord on public policies (including regulating future corporate practices), addressing workable rules of humankind's stewardship of the Gulf of Mexico, like any environment spoiled by a natural or human-made calamity. The Macondo well episode serves as a useful, if painful, illustration of the need for consensus regulation through public inputs and caucus bargaining.

  2. WHAT AMERICANS BELIEVE OCCURRED IN THE GULF OF MEXICO WHEN THE DEEPWATER HORIZON PLATFORM EXPLODED AND THE MACONDO WELL SPRANG A LEAK (19)

    The Deepwater Horizon platform fire caused the platform to list, eventually fracturing its connection to the Macondo well's long-string casement. (20) The wellhead was connected to a blowout preventer device intended to prevent the flow of petroleum and natural gas from the wellhead into open seas. (21) The blowout preventer did not function as designed, (22) and a steady flow of oil and natural gas left the wellhead beginning on April (20).23 As of June 18, 2010, the estimated flow of the leak was 12,000 to 25,000 barrels of oil daily. (24) As of the same date, the estimated record twenty-four consecutive hour recovery (25) of leaking petroleum was 1.1 million gallons (compared to the government's worst case daily leakage estimate on that date of 2.5 million gallons). (26) On July 15, 2010, BP shut off the valves to a newly-placed containment cap; seemingly, the cap stanched the flow from the well into the open water for the first time since April 20, 2010. (27)

  3. BP's FAILURES IN EXPLORATION PLANNING, DRILLING EXECUTION, AND SHORT-TERM MITIGATION OF THE DAMAGED MACONDO WELL'S EFFECTS

    A complete catalog of the failures of BP, PLC is not necessary to demonstrate that, despite the subject matter expertise of the technical and administrative staffs of BP in exploration and management of petroleum wells, the corporation ignored the risks attending drilling a well deeper than one mile below the water line of the Gulf of Mexico, and was substantially unprepared for the magnitude of erupting petroleum products from the wellhead. (28) First, BP's initial error in judgment was ignoring warnings about the state of the blowout preventer hydraulic system, (29) coupled with its choice of a long-string casement as the pipe assembly deployed for the Macondo well. Industry experts (other than BP's) believe that the depth of an exploratory well such as Macondo, and the atmospheric pressure at that depth, mandates a different, safer casement. (30) The riskier use of this casement, together with the failure of the blowout preventer's hydraulic system, invited disaster.

    Second, BP miscalculated the volume of the Macondo well leak at its inception and later; indeed, endeavors to estimate volume were so far shy of actual volumes that significant doubt was cast upon the technical competence of the company's flow engineers. (31) BP's failure to appreciate the true magnitude of the leak (assuming BP believed its employees' original estimates) means BP did not fully understand the urgency of the need to stanch the flow from the wellhead.

    Third, BP lacked internal controls for marshaling its response sources, including requesting aid from other petroleum industry sources outside the company, or from the federal, state, and local governments. (32) Like plantation managers, BP hired shrimpers, oystermen, and commercial fishermen to operate their boats to aid in the cleanup, but did not listen to the locals' view on how to attack the migration of the petroleum and natural gas, despite their intimate knowledge of the habitats of animals harvested, and of the terrain of the coastal waters and estuaries. (33)

    Fourth, BP lacked an internal backup plan for dealing with an inoperable blowout preventer device. (34) Ignorance of effective remediation technologies, or suitable measures where a wellhead is located a mile below the surface of the ocean making intervention by manned subsurface ocean-going vehicles impossible, contributed to BP's delay in its mitigation response, other than its ineffective use of remote robots.

    BP's fifth failure was its use of Corexit dispersant for the "breaking up" of petroleum constituents (dissolving oil droplets into smaller ones to accelerate biodegradation); (35) Corexit's use is banned in Great Britain because of its adverse effects on wildlife. (36) BP authorized the use of this dispersant without first conducting studies in the Gulf on its effects on Gulf marine life (and those of possible alternative dispersant formulae). (37)

  4. THE UNITED STATES GOVERNMENT'S FAILURE IN PERMITTING THE DEEPWATER HORIZON EXPLORATION AND IN REMEDIATING THE DAMAGED EXPLORATORY WELL...

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