Worst Case and the Deepwater Horizon Blowout: There Ought to Be a Law

• Date: 01 November 2010

11-2010 NEWS & ANALYSIS 40 ELR 11033

A R T I C L E S

Worst Case and the Deepwater

Horizon Blowout: There

Ought to Be a Law

by Oliver A. Houck

Oliver A. Houck is Professor of Law at Tulane University.

If you knew you could not fail, what woul d you try?

plaque on the desk of Tony Hayward,

CEO, BP May 1, 20071

ere is a law. In fact, there a re three laws that, jointly and

severally, should have a nticipated and provided mea sures to

prevent and cope with the explosion of the drilling rig Deep-

water Horizon. Instead, we have 11 deaths, 17 serious inju-

ries, the release of an American record 2.6 million gallons of

oil,2 an equivalent record for chemical dispersants,3 months

of Mutt ‘n’ Je responses, enormous corporate losses, and the

ensuing pain of the Gulf Coast region. Regulatory programs

under the National Environmental Policy Act (NEPA),4 the

Outer Continental Shelf Leasing Act (OCSLA)5 and the Oil

Pollution Act (OPA)6 each require the consideration of worst-

case situations. e latter two go further in requiring plans to

minimize such possibilities and to respond eectively to them

when they occur. What could have gone so badly wrong?

I. A Risky Business

Many things went wrong, a cascade of equipment failures and

human errors that continued right up to the rst moments

1. Naomi Klein, A Hole in the World, T N, June 24, 2010, http://www.

thenation.com/article/36608/hole-world.

2. Katie Howell, BP Spill 20 Times Larger an Valdez, Greenwire.com, Aug. 3,

2010.

3. See Press Release, U.S. Envtl. Prot. Agency (EPA), EPA: BP Must Use Less

Toxic Dispersant (May 20, 2010), http://yosemite.epa.gov/opa/admpress.nsf/

d0cf6618525a9efb85257359003fb69d/0897f55bc6d9a3ba852577290067f6

7f!OpenDocument; see also Mark Guarino, EPA Scolds BP in Gulf Oil Spill:

Dispersant Is Too Toxic, Change It, C S. M, May 20,, 2010

(quoting Jane Lubchenco, Administrator for the National Oceanic and Atmo-

spheric Administration (NOAA)).

4. 42 U.S.C. §§4321-4370f (2006), ELR S. NEPA §§2-209.

5. Outer Continental Shelf Lands Act, ch. 345, 67 Stat. 462 (1953) (codied at

43 U.S.C. §§1331-1356a (2006)).

6. 33 U.S.C. §§2701-2761 (2006), ELR S. OPA §§1001-7001.

of the blowout7 and that are being rigorously explored in the

U.S. Congress, federal investigations, and civil litigation, but

it all began well before, in the planning stages. is was sim-

ply an event that could not happen. It remained so in the

minds of BP, the petroleum industry, a nd even the federal

government well after the Deepwater Horizon exploded and

oil started pouring unchecked into Gulf waters. U.S. Coast

Guard Comma ndant ad Allen, working closely with the

oil company on the subsequent responses, indeed inventing

them on the y (“Top Hat,” “Quick Kill”), explained: “It’s

hard to write a plan for a catastrophic event that has no prec-

edent, which is what this was.”8 Which, as we will see, is not

exactly correct.

e facts are that deepwater drilling is a new a nd inher-

ently risky operation, pushing the envelope of technology and

engineering.9 Sea-oor responses, when things go wrong, are

described as “open heart surgery at 5,000 feet, in the dark.”10

e risks magnify with ocean depth, some exceeding 10,000

feet, to environments that human beings ca nnot even access

to see, c an manipulate only with probes and robots, and to

temperatures that freeze even gasse s and render the manage-

ment of uids and machinery an order of magnitude more

challenging.11 e risk s also magnify with the number of

7. For a preliminary catalogue of errors, see Robert Bea, Failures of the Deepwater

Horizon Semi-Submersible Drilling Unit (Ctr. for Catastrophic Risk Mgmt.,

UC-Berkley, May 24, 2010); see also David Hammer, Oil Spill Hearings: Expert

Says Well Workers May Have Ignored Kick an Hour Before Rig Blew, T-P-

, July 23, 2010; Mike Soraghan, Industry Claims of “Proven” Technology

Went Unchallenged at MMS, N.Y. T, June 2, 2010.

8. Steven Mufson & Michael D. Shear, e Pressure Grows for Action by BP,

W. P, May 1, 2010, available at http://www.washingtonpost.com/wp-

dyn/content/article/2010/04/30/AR2010043002715.html?hpid=topnews.

9. Ben Casselmann & Guy Chazan, Disaster Plans Lacking at Deep Rigs, W S.

J., May 18, 2010 (inter alia, quoting Danish oil industry engineers as stating

that many deepwater projects are “dependent on prototype and naval tech-

nologies” about which there is “signicant uncertainty” because they had not

been tested in real-world settings).

10. Soraghan, supra note 7.

11. C L. H  J L. R, C. R S., P’

N. R41262, D H O S: S I  C-

 2-4 (2010); Vassilios C. Kelessidis, Challenges for Very Deep Oil and

Gas Drilling—Will ere Ever Be a Depth Limit? (3d AMIREG International

Conference, Athens, Greece, 2009), available at http://drillinglab.mred.tuc.gr/

Publications/56.pdf. See also Joel K. Bourne Jr., Is Another Deepwater Disaster

Author’s Note: e research assistance of Gillian Gurley, 3L, and Forrest

Wootten, 2L, Tulane Law School, is acknowledged with gratitude.

Copyright © 2010 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.