Jan 31 2011

Symposium Day One: Looking Beyond the Deepwater Horizon: The Future of Offshore Drilling

Published by at 8:00 am under Energy,Water/Maritime and tagged: , , , , , ,

Anchor-handling tugboats battle the blazing remnants of the off shore oil rig Deepwater Horizon, via wikimedia

Environmental Law and Policy Review Symposium – “Looking Beyond the Deepwater Horizon: The Future of Offshore Drilling”

January 28th:

Calvin M. Lederer – Response to the Deepwater Horizon Spill of National Significance – An Overview

Calvin Lederer is a Deputy Judge Advocate General in the United States Coast Guard.

Mr. Lederer began by giving an overview of the Deepwater Horizon spill time line and response efforts, including keeping the oil offshore with booms and skimming.  The response represented the first time that a “Spill of National Significance” (SONS) had occurred and the first time the prepared response was put into action.  Interestingly enough, approximately 30 days before the spill there had been a drill of the SONS procedure that Thad Allen participated in.  Some of the problems he indicated was the difficulty in hearing technical opinions through the thousands of people responding to the spill.

During the open forum questioning, he suggested a few changes he thought could be made to future responses.  One of these was to include more upper-level decision makers, such as the relevant cabinet members, in the drills.  Mr. Lederer also mentioned a specific preparedness review that would be coming out and detailing areas of improvement.  Also during the open forum, Mr. Lederer defended burning the oil, saying that environmental and wildlife impacts were minimal compared to its effectiveness, though he also recommended that investment should be made to decrease the necessity of such “blunt” techniques.  ELPR Summary

Contracted workers from U.S. Environmental Services organize boom for deployment at the Venice, La., staging area. Photo by Marc Morrison, via wikimedia

Rebecca Bratspies – The Perils of Implicit Regulatory Privatization: Lessons from the BP Oil Spill

Rebecca Bratspies is a Professor of Law at City University of New York School of Law specializing in environmental and public international law.

Professor Bratspies’ thesis was that the regulatory framework before the BP oil spill was that of implicit privatization, allowing industry to decide what rules to make and police whether they followed them or not.  She first spoke of the idea that BP was simply a bad actor that did not reflect the general practices of the industry.  Professor Bratspies conceded that BP was an especially bad actor, considering the high number of safety violations and prior incidents that resulted in loss of life.  However, this was not the sole explanation of why the spill occurred.  She elaborated on how the Minerals Management Service (MMS) was slowly taken over by implicit industry control through lack of funding, lack of staff, and a corrupt agency culture.  Regulations and rules were adopted from industry suggestions almost verbatim and inspection reports were written by rig employees in pencil and then traced over in pen by MMS agents.  She also cited the now-infamous stories of industry officials providing drugs, vacations, and jobs to regulators.

The conclusion was that this situation was especially dangerous because it had industry regulating itself, but doing so with the outward appearance of government oversight.  The result is that regulations do not require the best available technology, do not encourage the most responsible practices, and important, interested actors are excluded from the process of creating rules.  Her suggested solution is for government standards to once again take precedence over industry standards.  During the open forum, she also stated the importance of focusing on the safety equipment and processes on the rigs.  ELPR Summary

Heavily oiled Brown Pelicans captured at Grand Isle, Louisiana on Thursda, June 3, 2010 wait to be cleaned. Photo Credit: IBRRC, via wikimedia

Hope Babcock – Risky Business: Generation of Nuclear Power and Offshore Oil Risk Management Development

Hope Babcock is a Professor of Law at Georgetown University Law Center and specializes in environmental and natural resources law.

Professor Babcock compared and contrasted the nuclear and oil and gas industries in the wake of major disasters in each industry.  She discussed the problems that caused the nuclear meltdown at Three Mile Island, pointing out that there were several mistakes made resulting from poor training and preparedness.  These problems were mirrored on the BP Deepwater Horizon rig, which also suffered from a lack of training, awareness, and safety procedures.

However, unlike the nuclear industry, the oil industry did not immediately tighten up regulation and perform an intense review of safety procedures.  She hypothesized that the disparate reactions were a product of the differences in public opinion regarding nuclear energy and oil and natural gas.  While the public is largely afraid of radiation and aware of the serious effects a meltdown can have, they view oil and gas exploration as safe for the most part.  Furthermore, the nuclear industry was aware that they were in serious danger of becoming obsolete if they were unable to erase the stigma of such a disaster.  The oil and gas industry, however, has survived several disastrous oil spills while avoiding such a serious stigma.  In order for the oil industry to take the same actions as the nuclear industry, they would have to have the same fear of obsolescence.

During the open forum questioning, Professor Babcock stated that safety culture needed to start at the top of a company and risk assessment should be undertaken intelligently, meaningfully, and with a commitment that money will be spent toward that end.  She also elaborated that the public’s dependence on oil and different values for human and animal lives could be another reason that there isn’t as much pressure on the oil industry to change as there was on the nuclear industry. ELPR Summary.

An oil containment boom deployed surrounding New Harbor Island, La. to mitigate environmental damage. (U.S. Navy photo/Released)

Rena Steinzor – British Petroleum as Self-Confessed Bad Actor, Crime, Punishment, and Prevention Offshore

Rena Steinzor is a Professor of Law at the University of Maryland School of Law, specializes in environmental law, and teaches a course in risk assessment.

Professor’s Steinzor’s thesis was that focusing on personal criminal punishments for the executives in bad acting companies such as BP would increase incentives to make sure that the business followed effective safety practices.  She started by discussing two other options: self-regulation and prescriptive regulation.  Self-regulation was discounted based on the British example, where enforcement is minimal and workers are afraid to report any safety concerns.  Likewise, prescriptive regulation has problems because the regulatory agency simply does not have enough resources or staff to effectively monitor all offshore rigs.

Instead, Professor Steinzor proposed that we should focus on pursuing top corporate executives in criminal proceedings.  She argued that a commitment to safety needs to come from the top of a company, but executives focused on profits above all else are willing to bet that a disaster such as Deepwater Horizon won’t happen.  They’re willing to gamble in this way because they are not personally responsible, and believe that at worst they will be removed from their position with a “golden parachute” pension in the same way that Tony Hayward, CEO of BP before the spill, was.  Personal criminal liability would not only cause them to be have a personal stake in encouraging best practices but would also increase public awareness of their behavior.  Criminal liability could be achieved under existing theories such as the Responsible Corporate Officer doctrine.

During open forum, Professor Steinzor stated that the criminal liability she proposed wouldn’t apply to middle managers, only to the top of the corporate ladder.  Also, even though focusing on criminal liability would would raise the same problems of enforcement as civil laws, it would be cheaper than making new rules and we could parse the system down in order to selectively enforce.  She also argued that it wouldn’t take much to scare someone into changing their business practices and avoid personal criminal liability. ELPR Summary

Keep an eye out for the summaries of second day’s speakers, coming later in a separate post.

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