The Gulf oil spill: the road not taken.

• Author: Brooks, Richard Oliver

Prometheus stole fire from the gods and brought it to humans. The gods found out and sent Pandora, whose box was opened to visit evils upon the world. Prometheus was chained to a rock, to have his liver eternally eaten by vultures. (He was saved by Hercules.)

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Prometheus is the oil company stealing fire in the form of oil from the gods. Pandora gave us the spill. Along with the oil-soaked birds, the fouled beaches, and the decimated fishing and recreation industry of the Gulf states, the recent Gulf oil spill has another consequence. It reminds the nation of past failed opportunities to control the unwanted effects of failed technology in deep sea drilling and, for that matter, the inability of environmental law to confront other failures of technology during the past half-century. (2) Dredging up the details of this history may be useful in designing permanent solutions to avoid future catastrophes. To be sure, the oil spill may be the result of a combination of human error, the proliferation of oil drilling in deep waters, and a variety of possible technology failures. (3) But public focus has been upon the failure of the "blowout

preventer" ("BOP") and its "shear ram," which operate to cut off the flow of oil in emergencies. (4) It is this alleged failure of the BOP which provokes reflections on the broader problem of achieving control over the technological contributions to environmental pollution. The central player in my reflections is the Technology Assessment Act of 1972. (5) I trace its history and eventual defunding in 1995. I trace the subsequent effort to find a rational technology policy by reliance upon quantitative policy analysis which is not fully successful. I urge the resurrection of the Technology Assessment Act, but with major amendments to help Congress assess the technologies of the future, with major reservations regarding any effective implementation in light of the political economy of our age.

1. THE EARLY HISTORY: THE HOPES AND FEARS OF THE 1960S

   I will begin the story in the 1960s, although ambivalence about technology lies deep in the history of western civilization and, more recently, in American civilization itself.6 It was the 1960s when many were concerned about technological growth and its effects on America, and across the world. Concerns about technology, including the proposed building of the supersonic transport, the construction of nuclear power plants, off-coast drilling, and the manufacture of pesticides, dominated the news. (7)

   In the 1960s, the opposition to technology was not merely concern with defective technology or emissions from such technology. Rather, there was a profound reaction against technology itself, viewed as part of what was perceived as a more general social and political failure in society. (8) This is exemplified in the student revolt against being treated in large universities as IBM punch cards; "do not fold, spindle or mutilate!" was the slogan. (9) Some associated technology with science and suggested a democratic reform of the governance of science itself. (10) Others, such as Barry Commoner, found a fatal flaw in technology's creation of synthetic chemicals created by the reductive sciences--chemicals which could not be recycled in "the closing circle" of the ecosystem. (11) Commoner believed that the reductive sciences, especially chemistry, were employed by the capitalist economic system to create non-recyclable substances. (12) Still others, such as Rachael Carson, although also interested in synthetic chemicals (i.e. DDT in the ecosystem), were content to recommend more immediate steps such as banning the manufacture, sale, and use of the chemical. (13)

   The quest for power and the search for profit have continued to remain the dominant themes of the German philosophers of the Frankfurt School, beginning with Marcuse in the 1960s, and extending to the present day with Foucault and others. (14) Perhaps the most famous of the writings on technology of the day was Jacques Ellul's The Technological Society. (15) Ellul found technology in the assemblage of instruments which reflected a mode of thought designed to achieve efficiency.(16) Ellul believed that technology stimulated a new way of life, a new kind of society, changing the manner of thought in modern society. (17) He believed that "la technique," reliance upon a reasoning by ends and means rather than deliberation of ends, would lead to a future dominated by the power of technology without guidance. (18)

   In the wake of these and other theories, the "radicals" of the 1960s and 1970s proposed a cultural revolution, broad economic reforms, "a softer path" to energy production, and a variety of other reforms. (19) Charles Reich, with his popular The Greening of America, (20) found technology to be "mindless" (like Leo Marx's The Machine in the Garden (21)), offensive to a simpler way of life, and interfering with the achievement of harmony with nature. (22) Nothing less than a change in the mindset of the people could produce needed reforms. Ferkiss hoped for a "technological man" who could understand science and technology, but control them with a "new humanism." (23) Economic reforms were suggested by Galbraith who, in The Affluent Society, urged a rebalancing of consumption between private desires and public needs. (24) Others, such as Helen and Scott Nearing, following a long American tradition extolling the simple life, simply recommended bailing out of the market nexus, and heading back to a self-sufficient life on the land. (25) Many followed in their wake. At a more modest level, Schumacher suggested the search for alternative "small scale" technologies. (26) His recommendations were to be followed in later years by those promoting "appropriate technology." (27) Others followed in their footsteps and proposed more specific technological reforms such as "soft energy paths." (28)

   Despite the fervor of 1960s, these radical alternatives were not adopted. (29) By the 1970s, the 1960s radical concerns over the social, economic, and political consequences of technology as a dominant force in our society had disappeared from the public consciousness. (30) Instead, with Earth Day in 1970, the public sought to directly control, primarily through "end-of-pipe" solutions, those pollutants continuously emerging in a steady stream from the technologies found on farms, in factories, and from automobiles. (31) Thus, neither the onrush of technology itself, nor large-scale accidents resulting from technological failure, were addressed.

   The National Environmental Policy Act of 1969 required environmental impact statements of significant federal actions. (32) Some of these actions included the use of new technologies, but unfortunately, for the most part, the statements did not focus carefully upon the technologies and their flaws. (33) This failure can be seen in a review of the environmental impact statements prepared by the Minerals Management Service ("MMS") in the course of its leasing outer continental shelf lands. (34)

   In the early 1970s, amendments to the Clean Air Act, (35) the Clean Water Act, (36) and other toxic control laws were also adopted. (37) These laws sought to promote technologies through "technology forcing"--requiring technologies for the end-of-pipe minimization of effluents and emissions of pollutants. (38) Thus, these laws focus upon assessing pollution control devices, rather than assessing the technology as a whole. For example, these laws require an assessment of the catalytic converter, but not the car or truck. Thus, they do not prevent the initial undertaking

   of dangerous new technologies in the first place, nor do they do not anticipate large-scale accidents from new technology during their extended lifecycle. (39)

   In 1990, both the Clean Air Act and the Clean Water Act were amended to include attention to large-scale accidents. The "Bhopal Amendments," adopted in response to a toxic explosion in India, amended the Clean Air Act to deal with toxic explosions. (40) In response to the Exxon Valdez oil spill, the Oil Pollution Act of 1990 was adopted. (41) Both of these laws, at least in theory, might address the technological concerns of the Gulf spill. The amendments to the Clean Air Act took a preventive approach through planning and regulation. (42) The Oil Spill Act included an insurance approach which required liability insurance for the responsible parties of the spills. (43)

   More specifically, the Clean Air Act might apply to the air pollution resulting from the spill in the following manner. Air pollution from both the oil in the water and the dispersants is presently being monitored by EPA. (44) The Clean Air Act contains a multitude of provisions designed to force better technologies for controlling air pollution from stationary sources. Some of these provisions reach beyond end-of-pipe solutions to authorize the review of the entire process of production, as well as scattered smaller sources which produce the pollution. (45) However, the most relevant section of the Clean Air Act is the so-called "Bhopal Amendment," which addresses toxic and flammable air pollutants that result from industrial accidents. This amendment requires industry to adopt careful plans for detecting possible sources of explosions, correcting deficiencies, adopting safer methods of production, and adopting a remedial plan in the event of an accident. (46) Unfortunately, EPA has excluded oil production from this provision, suggesting that the crude oil does not meet the threshold standards of toxicity or flammability. (47)

   But, even if we recognize these modest laws for reviewing technology, the problem lies much deeper. As we witnessed in the Gulf oil spill, the regulatory enforcement of these laws was undercut by inadequate staff, a revolving door of personnel between industry and government, and incentives for government to limit its enforcement. (48) All of...