In the Gulf, BP Faces a Tragedy

• Author: Elliott P. Laws
• Position: EPA Assistant Administrator and former President for Safety, Health & Environment of Texaco, is Senior Counsel at Crowell & Moring
• Pages: 14-14

Page 14 ❧ THE ENVIRONMENTAL FORUM Copyright © 2010, Environmental Law Institute®, Washington, D.C. www.eli.org.

Reprinted by permission from The Environmental Forum®, July/August 2010

Not solely an industry

problem and its impacts

will not be limited to

worst-case scenarios

By Elliott P. Laws

In the Gulf, BP

Faces a Tragedy

The explosion of the Deepwa-

ter Horizon drilling rig killed

11 workers. If that wasn’t tragedy

enough, the leaking well is estimated

to be pouring between 20,000 and

40,000 barrels of crude oil into the

Gulf of Mexico on a daily basis.

ose f‌igures translate into as much

as 1.68 million gallons released every

24 hours. By comparison, the 1989

spill of the Exxon Valdez was approx-

imately 11 million gallons, total.

is event, clearly the greatest

environmental disaster in the Unit-

ed States since the Dust Bowl, has

killed f‌ish, sea mammals, and birds;

caused a virtual halt to all seafood

harvesting operations in a large

swath of the Gulf of Mexico; and

caused untold millions of dollars of

damages to thousands of people who

rely directly or indirectly on the gulf

for a living.

As I am writing this, internal BP as

well as multiple federal and congres-

sional investigations are just getting

up to speed. e Department of Jus-

tice recently announced that it was

commencing both civil and criminal

investigations into the explosion and

the resultant leak. As these investiga-

tions unfold and engineers continue

to try to stop the f‌low of oil, we were

initially reminded by many that this

was a freak accident that could not

have been predicted. Yet in a 2000

plan for a proposed drilling rig to

be launched in the gulf by Shell, the

Minerals Management Service wrote

that while highly unlikely, such an

event could happen — and predict-

ed it in a manner that is eerily similar

to what happened to the Deepwater

Horizon. e MMS report forecasts

that deep water spills would probably

be larger than those in shallow wa-

ter; that chemical dispersants would

have a negative impact on birds and

f‌ish; that wetlands could be severely

impacted; and that submerged oil

would likely be a problem.

Anecdotal reports from survivors

of the Deepwater Horizon and fam-

ily members of the deceased workers

allege that corners were cut and pro-

cedures, including safety, were side-

stepped with increasing frequency.

While this has not been established

as fact it causes signif‌icant concerns

— especially in light of BP’s recent

experiences.

I wrote a couple of years ago

about the recommendations that

resulted from another BP tragedy

— the 2005 Texas

City explosion where

15 ref‌inery workers

were killed. at col-

umn focused on the

recommendations

that were contained

in the reports issued

by both the Chemical and Safety

Hazard Investigation Board and

BP’s own independent investigation

chaired by former Secretary of State

James Baker.

While criticizing BP’s lack of

commitment to process safety man-

agement, both reports called for an

increased obligation of senior corpo-

rate management at and above the

facility level and including the board

of directors to ensure that the com-

mitment is both implemented and

strongly communicated to everyone

who worked for the company. At the

time I said of the recommendations,

“I would not like to be a responsible

corporate of‌f‌icial who has not exam-

ined the company’s EHS manage-

ment system in light of these two

studies and has a major environmen-

tal accident to deal with. . . . eir

focus is on safety, but that account-

ability will be equally expected after

an environmental tragedy.”

It seems to be some per verse joke

by the gods of chance that BP itself

is the company now facing the “en-

vironmental tragedy.” But the warn-

ing should be heeded by all. is di-

saster is not an oil industry problem

and its impacts will not be limited to

worst-case scenario analyses. While

some may ultimately believe that the

results of the Deepwater Horizon will

follow the old legal axiom that “hard

cases make bad law,” what this hard

case will clearly result in is tough

law.

After BP has stopped the leak and

cleaned the oil; after the causes of

the explosion are memorialized in

reports and lawsuits and likely in-

dictments; then we will see how this

incident has truly changed the way

industry will operate in this country.

We will see what types of operational

risks the government

will now assume to

be “reasonable,” we

will see what types

of f‌inancial reserves

must be held to in-

sure against the un-

thinkable and the

unexpected, and we will see whether

activities which carry some highly

remote consequences are nonethe-

less so potentially catastrophic that

they will not be allowed.

But in the meantime, all should

remember the Texas City reports —

because even more than before, “I

would not like to be a responsible

corporate of‌f‌icial who has not exam-

ined the company’s EHS manage-

ment system in light of these two

studies and has a major environmen-

tal accident to deal with.”

Elliott P. Laws, f or m er EP A

Assistant Administrator and former President

for Safety, H ealth & Environment of Texaco, is

Senior Counsel at C rowell & Moring. He can

be reached at elaw s@crowell.com.

T B  E