"Those who cannot remember the past are condemned to repeat it." (1)
INTRODUCTION II. HIGHSTAKES PROSPECTING IN A FRAGILE OCEAN. A. Overexploitation B. Pollution 1. Nutrient Loading 2. Synthetic Pollutants 3. Oil Pollution C. Climate Change and Ocean Acidification D. Deepwater Environments-The Last Frontier III. THE SEARCH FOR LIQUID GOLD; HIGH STAKES PROSPECTING IN THE GULF A. Gulf of Mexico: The Nation's Testing Ground B. Deepwater Horizon: Leaving a Legacy of Environmental Harms IV. NEPA AND OFFSHORE OIL PRODUCTION A. Council on Environmental Quality B. NEPA Compliance C. NEPA's "Hard Look" Requirement D. NEPA and Offshore Oil Drilling E. Deepwater Horizon-MMS Review of BP Plan 1. MMS: Environmental Review for BP Lease 2. Categorical Exclusion of BP's Exploration Plan V. Analysis and Recommendations A. Categorical Exclusions for Exploration Plans Violate NEPA and OCSLA 1. MMS: Failure to Assess the Impacts of a Catastrophic Oil Spill 2. MMS: Failure to Assess the Impacts of Using Dispersants in Deep Water 3. MMS: Categorical Exclusion of BP's Exploration Plan B. The Existing Environmental Review Process for Deepwater Drilling in the Gulf is Inconsistent with U.S. Ocean Policy C. Categorically Excluding Exploration Activities on the Outer Continental Shelf from Environmental Review Is Inconsistent with U.S. Obligations under International Law VI. CONCLUSION I. INTRODUCTION
In an instant, oil and gas fumes raced from the well to the surface through the drill collar, exploding on contact with the semisubmersible oil rig's motors. Equipment designed to prevent such well blowouts failed, and oil flowed freely to the surface to fuel a massive fire that consumed the rig and caused it to collapse into the Gulf of Mexico. As the rig fell to the sea floor, the underlying well structure broke apart and allowed oil from the well to spew unimpeded into the ocean. Month after month the world watched in horror as tens of thousands of gallons of oil flowed into the Gulf's prime fishing grounds each day. Every effort to contain the oil failed. As some workers drilled relief wells to lower the pressure at the site of the blowout, others sprayed dispersants onto the growing oil slick to break down the oil before it reached the coast. Workers raced to implement measures to mitigate the environmental impact of the oil on beaches, inlets and estuaries. Politicians impatiently demanded accountability and financial commitments from responsible parties. Within days of the spill, the Gulf ecosystem revealed its fragility and vulnerability to human activity. White sand beaches turned black, seabirds lost their ability to fly, and marine organisms washed ashore dead--all victims of oil exposure. Technology proved inadequate to remove most of the oil from the water column. After millions of gallons of oil had been released into the Gulf, workers finally found a way to cap the well and stop the flow of oil, leaving the Gulf with a toxic legacy and an uncertain future.
The account above bears a remarkably close resemblance to the April 20, 2010 Deepwater Horizon (DWH) oil well blowout that occurred off the coast of Louisiana, killed eleven people, and led to the largest oil spill in U.S. history. (2) Sadly, it is not. It is actually an account of the 1979 Ixtoc I oil well blowout in Mexico's Bay of Campeche that caused the release of approximately 147 million gallons of oil into the Gulf of Mexico (Gulf). (3) The oil contaminated 162 miles of Gulf shoreline, including large sections of the Texas coast. (4) The migration of oil from Mexican to U.S. waters caused a wide variety of damages to natural resources in the Gulf and caused economic hardship for many people who relied on the ocean to earn a living. Within months of the spill most of the oil that reached the U.S. coastline evaporated or was removed from the beaches by natural wave action and re-deposited offshore. (5) The bulk of the oil from the spill, however, remained in the water column and continued to impact the Gulf ecosystem for decades. (6)
Today, the Gulf oil drilling industry poses many of the same environmental risks that were present prior to the Ixtoc spill thirty years ago. (7) However, those risks have increased with the industry's movement of oil exploration activities into remote, deep ocean sites in the Gulf. (8) The deep, offshore waters of the Gulf contain some of the largest deposits of oil in the United States, but finding and recovering that oil safely presents unique challenges. (9) Controlling and managing breaches at deep sea wells is considerably more difficult than at shallow wells due to the high pressure and low temperature of the deepwater environment, the force of the flowing oil, and the need to rely on unmanned, remotely operated vehicles to respond to accidents. (10) Indeed, the DWH accident resulted in the release of more than 170 million gallons of oil into the Gulf because almost every procedure used to stop the blowout failed. (11)
Despite the substantial risk associated with deep sea oil drilling in the Gulf, the Mineral Management Service (MMS) has routinely elected to categorically exclude certain offshore oil exploration and development activities in the Gulf from environmental review otherwise required under the National Environmental Policy Act (NEPA). (12) MMS categorically excluded British Petroleum's (BP) exploration plan covering the DWH well from environmental review without ever considering the potential impacts from a well blowout like the one that actually occurred.
This article examines the current practice of categorically excluding oil exploration and development/production activities in the Gulf from environmental review, and argues that the practice violates NEPA and the Outer Continental Shelf Lands Act (OCSLA), and is inconsistent with U.S. and international ocean law and policy. Section I provides a brief overview of the status of the world's imperiled oceans, with particular emphasis on the Gulf ecosystem. Section II addresses America's dependence on crude oil and the increasing role played by the Gulf in meeting the nation's energy needs, and examines the projected environmental impacts of the DWH accident that led to the worst oil spill in U.S. history. Section III provides a brief overview of U.S. ocean law and policy. Section IV discusses the NEPA review process with particular emphasis on the use of categorical exclusions, and examines some of the key decisions made during the environmental review process for the BP lease covering the site of the DWH well. Section V provides analysis of the interaction of laws governing oil exploration and development in the Gulf and concludes that categorically excluding exploration plans in the Gulf from environmental review violates national and international law.
HIGHSTAKES PROSPECTING IN A FRAGILE OCEAN
For centuries, humans have exploited the resources of the world's oceans with little concern for, or understanding of, how their collective activities caused harm. Nineteenth century Poet Lord Byron once wrote, "[m]an marks the earth with ruin, but his control stops with the shore." (13) His words reveal a commonly held, but incorrect assumption that humans are incapable of causing any lasting harm to the vast oceans. The current imperiled state of the world's oceans and the particular sensitivity and ecological importance of the Gulf ecosystem make imperative changes to the current environmental review practices. Despite exhibiting remarkable resiliency to anthropogenic insult for centuries, the world's oceans are increasingly showing signs of vulnerability to human influences. Research has unequivocally demonstrated that the synergistic effects of habitat destruction, overfishing, ocean warming, increased acidification and massive nutrient runoff are fundamentally altering once complex, vibrant marine ecosystems. (14) As marine biodiversity declines, ecosystems with intricate marine food webs are being degraded to primordial seas dominated by microbes, toxic algal blooms, jellyfish and disease. (15) Absent fundamental changes in the use and management of ocean resources, human activities may lead to a massive extinction in the ocean. (16) The Gulf's once pristine waters and productive ecosystems have been significantly altered as the result of anthropogenic insults. The primary drivers of ocean degradation are overexploitation, pollution, climate change, and ocean acidification.
Fish provide a source of protein for almost half of the world's population, but that resource is at risk. (17) Technological advancements have dramatically and perhaps irreversibly altered fishing practices by allowing humans to span the globe to find fish in remote areas. (18) As a result, today, approximately 80% of all major marine fish stocks are listed as either fully exploited, overexploited, or recovering from depletion. (19)
Despite the worldwide decline in fish stocks, demand for fish in the U.S remains high. (20) The Gulf plays a vital role in meeting that demand, but increasing fishing activity in the Gulf poses a significant threat to the future sustainability of the Gulf. (21) Today, four of the top seven fishing ports in the nation are located in the Gulf. (22) The increasing fishing effort has the potential to significantly impair critical habitat in the Gulf that many endangered or threatened species rely on to survive. (23) It also has global implications for highly migratory species and other straddling fish stocks that migrate through Gulf waters and are managed to some degree by more than one coastal nation. (24)
Despite the emergence of national and international laws that prohibit the direct discharge of pollutants into the marine environment, the world's oceans continue to serve as a depository for remnants of human activity. An incalculable amount of nutrients, oil, synthetic material, solid waste, sewage and toxic chemicals...