Will Laxity and Collusion Now Come to an End?

• Author: Zygmunt J. B. Plater
• Position: Environmental law at Boston College Law School since 1981, and led the Legal Research Task Force of the Alaska Oil Spill Commission, 1989-90
• Pages: 50-50

Page 50 ❧ THE ENVIRONMENTAL FORUM Copyright © 2010, Environmental Law Institute®, Washington, D.C. www.eli.org.

Reprinted by permission from The Environmental Forum®, Sept./Oct. 2010

Th e fo r u m

Will Laxity and

Collusion Now

Come to an End?

Z J. B. P

One of the special frustra-

tions of the BP Deep-

water Horizon blowout

for people who worked

on the Exxon Valdez oil

spill 20 years ago is knowing that the

Oil Pollution Act of 1990 did not f‌ix

the systemic problems it could have.

President Obama and his team are

trying to play catchup with a f‌lawed

system.

e 1989 spill revealed serious

problems within what the Alaska Oil

Spill Commission described as large

and complex “megasystems” for the

extraction and transport of oil. In

the gulf we see again that instead of

heightened vigilance, these megasys-

tems drift into “complacency, collu-

sion, and neglect” from the industry

players and the agencies that are sup-

posed to regulate them.

e commission noted serious

systemic changes that were and still

are needed. Improved corporate and

governmental practices are necessary

in the permitting process, in opera-

tions and safety monitoring — and

in the pivotally important contin-

gency plans that are supposed to re-

spond to spills with best technology,

an incident command structure, and

practice-tested designs.

Here is a collection of some of the

elements that could and should be

integrated into an updated OPA:

Initial leasing & permitting: e

OPA does not speak meaningfully

to operations preceding the pollu-

tion events it addresses. It should. In

Alaska the initiation of the Alyeska

oil extraction and transport system,

though accompanied by extensive

studies, did not deal realistically with

worst case possibilities nor require

meaningful contingency plans. New

OPA provisions could clarify that of‌f-

shore wells cannot get categorical ex-

clusions from environmental impact

statement review, and must provide

analysis of worst case ef‌fects in leas-

ing and permitting, and satisfactory

contingency planning to respond to

them.

Contingency plans: In Alaska and

now in the gulf contingency plans

were found to be vague, inef‌fective,

and based on insuf‌f‌icient or falsif‌ied

information. As recommended in

the Alaska Commission report, strict

federal command authority must be

established in advance of critical inci-

dents. e National Oil and Hazard-

ous Substances Pollution Contingen-

cy Plan should require such authority,

with refusals to follow command

directives criminally punishable.

Mineral leasing surety bonds: Surety

bonds are authorized under all federal

oil leases. e Minerals Manage-

ment Service has the power to require

supplementary bonding where neces-

sary for environmental risk. is re-

quires no new legislation, but should

be an expressly required element in

the OPA-mandated National Oil

and Hazardous Substances Pollution

Contingency Plan.

Regional Citizens Advisory Councils:

e OPA includes a useful innova-

tion recommended by the Alaska

Commission — citizen oversight

councils, as independent watchdogs,

comprising f‌ishermen, local govern-

ments, and other citizens who would

be hurt by system failures, funded by

a levy on area hydrocarbon industries.

Lobbying restricted this innovation

to Alaska waters and denied the

councils subpoena power. New OPA

provisions should extend them to all

coasts, creating a third-leg counter-

weight to industry and agencies, and

grant them clear independent investi-

gative authority.

Independent funds established

by corporate-government contract:

Obama’s $20 billion Compensa-

tion Trust Fund, funded by BP, is a

substantial innovation, a mechanism

that potentially intersects with OPA

recoveries as well as with nonstatu-

tory claims. A revised OPA needs to

integrate coordination with such free-

standing funds.

Re-Opener clauses: Alaska inserted

an innovative feature into f‌inancial

settlements. e $900 million crimi-

nal restitution settlement included a

provision that if unforeseen residual

harms were discovered within 15

years, the state or federal govern-

ment could f‌ile under the clause to

“re-open” the calculus up to $100

million. Alaska f‌iled in 2006 for $92

million. Criminal and civil settle-

ments in the gulf are likely to be

much larger, and re-openers will

dwarf Alaska’s. An OPA amendment

could well institutionalize the reopen-

er mechanism.

Debarment: As others may note,

one of the most tangible motivations

to compliance with protective laws is

the prospect of being de-barred from

future federal leasing or contract, or

renewals thereof, in whole or part.

e OPA could make debarment

review a mandatory part of every ret-

rospective violations analysis.

ese are only a few notable issues.

ey stand in for at least two dozen

more currently being accumulated for

of‌f‌icial consideration. To a sad extent,

most of the harm committed by the

BP Deepwater Horizon blowout is es-

sentially irremediable, only slowly to

be dispersed and detoxif‌ied by natural

processes. We need to harvest lessons

for the future — how to manage the

of‌fshore oil megasystem while avoid-

ing or mitigating such incidents in

the years to come. e days of laxity

and collusion between the industry

and the agencies are probably over.

e price of gas will increase, along

with safety. Painful though it may

be, the imperative needed to rethink

energy and climate policy inevitably

becomes one big step harder to deny.

Zygmunt J. B. Plater has taught environ-

mental law at Boston College Law School

since 1981, and led the Legal Research

Task Force of the Alaska Oil Spill Commis-

sion, 1989-90.