Cross-posted from IntLawGrrls.
On Thursday Judge Martin Feldman of the U.S. District Court for the Eastern District of Louisiana refused to delay the effect of the preliminary injunction he issued on Tuesday, overturning the U.S. Department of Interior’s May 28, 2010, Temporary Moratorium on deepwater drilling. (Related court documents available here.)
Several facets of the June 22 decision are truly astonishing.
Nowhere in the decision is there any recognition of the unique, emergency circumstances or the grave threat to the public that the agency was seeking to combat. Nor did the judge pay much attention to the express and explicit congressional intention that offshore oil activities be suspended when necessary to protect against environmental threats. Instead he elevated the desire of private companies to continue their profitmaking activities over the health and safety of an entire region. His decision raises a vital question about where our defaults should be when faced with uncertain threats: should we err on the side of protecting the environment or on the side of protecting business? Judge Feldman clearly opted for the latter. It was a poor choice, but 
hopefully wiser heads will prevail, and the Moratorium, instituted in the wake of the Deepwater Horizon explosion (left) will be restored. (prior IntLawGrrls posts available here) (photo credit)
On purely legal terms, the decision was not a very good one.
Full textCross-posted from IntLawGrrls
Ever since the Deepwater Horizon began gushing oil into the Gulf of Me
xico, BP has been dazzling the American people with a series of colorfully named “solutions:” the dome; top hat, junk shot, top kill. However, as the days turned into week, and the weeks turned into months, one thing has become crystal clear. None of these fanciful solutions had ever been tried in deep water, and BP was making things up as it went along.
It is hard to escape the conclusion that BP was actually engaged in an elaborate theatre designed to divert attention from the fact that the only real hope of stopping the blowout leak is a relief well—a solution that is by no means guaranteed and is still two months away.
BP knew it had no way to stop this leak on April 20, the day Deepwater Horizon exploded. They knew it earlier that day when they elected not to conduct a cement bond log test. They knew it on April 9, 2010, when they claimed in written comments that their deep water drilling activities “would not have an effect, cumulatively or individually, on the environment”. They knew it in Mid-April when they chose the "cheap but risky" method to case the well. They knew it when they successfully lobbied to avoid having to install acoustic triggers as backup blowout prevention system. Worst of all, they knew it when they assured MMS that:
In the event of an unanticipated blowout resulting in an oil spill, it is unlikely to have an impact based on the industry wide standards for using proven equipment and technology for such responses, implementation of BP’s Regional Oil Spill Response Plan which address [sic] available equipment and personnel, techniques for containment and recovery and removal of the oil spill.
Indeed, it is an open secret in the industry that nobody has any idea of how to stop a deepsea leak. Shell Oil admitted as much in a 2000 Environmental Assesment filed with the Mineral and Mining Service. Shell received a permit anyway.
Viewed in light of this backdrop, BP’s parade of fancifully-named solutions looks like a deeply cynical attempt to manipulate public opinion. As long as breathless press coverage focuses on minute-by-minute updates of each new attempt, it diverts attention from the question of why deepwater drilling was allowed at all when there was no way to respond to a disaster. Think about it—there was no Plan B at all.
Full textCross-posted from IntLawGrrls.
Today's New York Times update on the Deepwater Horizon disaster opens with BP’s failed efforts to control the remaining two leaks via concrete, or remote control robots. Strangely, the article makes no mention of the missing remote shut-off valve called an acoustic switch. This $500,000 device might well have prevented this whole catastrophe. But, the United States does not require that deepwater oil rigs install an acoustic switch, and BP and Transocean decided to forego it. The United States considered requiring these switches in 2000, but Bush administration nixed the idea after industry pushback. My guess is that Vice President Cheney's secretive Energy Task Force had a hand in that, but since the Task Force operated entirely behind closed doors, we may never know the truth of how the United States made this ill-considered choice. Apparently, the Times does not consider the fact that this device, which is required in other major off-shore drilling countries, like Norway and Brazil, didn't make the company's cost-benefit cut, to be part of “all the news fit to print”.
With that critical piece of information missing, the Times tells us a tale of plucky engineers trying innovative solutions that, by gosh, just might work. The article is full of solemn quotes like "as so many other response efforts so far have shown, engineering problems that can be solved on the ground can prove perilously stubborn 5,000 feet underwater." The coverage has a "Gee, who could have guessed" quality that is extremely disturbing.
Full textA few thousand fishermen and women are making port in Washington, D.C. today to rally against the best hope for the future of fishing. They don’t see it that way, of course, but a look at the evidence leaves no other conclusion.
The simple truth is that American waters have been overfished for years. When boats take out more fish than nature can replace, fish populations shrink. If fishing efforts doesn’t decrease to match the smaller fish population, the resulting overfishing creates a vicious cycle—each year’s catch takes a bigger and bigger percentage of the remaining fish, until finally there are so few fish that the entire fishery, and the jobs depending upon fishing, disappear. Unfortunately, we have reached that point of collapse with many of our northeast fisheries, like winter flounder, which is below 10 percent of the targeted level; and American Shad, which is at an all-time low.
The crisis has been a long time coming. Like many other countries, the United States spent decades letting the immediate needs of fishing communities guide its fishing plans—and the result has been disastrous. In late 2006, Congress wisely decided that business as usual would drive overfished stocks to extinction. In its reauthorization of the Magnuson-Stevens Fishery Conservation and Management Act, Congress recognized a critical failing in past efforts to stem overfishing: overly optimistic estimates of the “maximum sustainable yield” that could sustainably be fished. They gave the fishing industry too much credit for staying within the limits, and the fish themselves too little time to repopulate.
Full textOn December 9, Senator Olympia Snowe (R-ME) introduced S. 2856, a one paragraph bill that would quietly gut a key portion of the Magnuson-Stevens Act (MSA) by dramatically expanding a narrow exception to one of the Act’s central mandates. Were it to pass, the bill would mark a significant step in the wrong direction for United States fisheries policy. The bill, the "International Fisheries Agreement Clarification Act," is co-sponsored by interim Senator Paul Kirk (D-MA).
The MSA requires fisheries managers to impose scientifically defensible annual catch limits (ACLs). For fisheries identified as overfished, the Act immediately ends overfishing, and requires that the fish stocks be rebuilt as rapidly as possible (with 10 years as the outside limit.)
Section 304(e)(4)(A)(ii) of the MSA creates an exception for fisheries covered by international treaties from this “rebuild in 10 years” requirement. If enacted, Senator Snowe’s amendment would expand this exception to include Maine’s groundfisheries, which are covered by an informal understanding between Canada and the United States. Worse, the amendment would also exempt any other fishery for which there was a comparable international understanding.
There is a reason the MSA limits its exception to treaties. Under our Constitution, treaties are the supreme law of the land. They are negotiated at the presidential level, and are ratified by a two-thirds vote in the Senate. Memoranda of Understanding, (MOU) by contrast, are often used when the parties cannot or do not want to create legally binding commitments. That is exactly what happened in the Gulf of Maine. The “Understanding” Snowe is so concerned about grows out of a document titled Guidance on Options, which was produced by a bilateral government-industry committee.
Full textNOAA issued a draft of its new catch share policy last week. Despite Director Jane Lubchenco’s clear support for the concept, the draft policy stops short of requiring that fisheries managers implement catch shares. This is a good thing. Instead of mandating catch shares, the draft policy focuses on education, cooperation, and transparency. The agency commits itself to “reducing technical barriers and administrative impediments” to implementing catch shares. Those are exactly the roles that NOAA should be playing.
Too often, proponents of catch shares imply that all we need do is wave a private property wand and the problems besetting fisheries will magically solve themselves. If only it were that easy. The basic idea is to set a firm cap on how much of each kind of fish can be captured in a fishery. This cap, the Annual Catch Limit (ACL) is supposed to be set at a level that prevents overfishing, and restores depleted stocks (that's good). Catch shares then divide that catch up among participants in the fisheries. In most cases, the participants are then free to use their shares or to lease them to others, or trade them on the much fabled “free-market”. Much of the conversation surrounding catch shares is so focused on the supposed efficiencies of this property-rights regime that it ignores the problems of overcapacity, by-catch and enforcement.
The NOAA draft policy deserves credit for at least raising these issues, although it could do far more to bring them into focus. Unfortunately, the draft policy doesn’t engage with the serious distributional concerns associated with many catch share plans raise. Other than some general language about “community sustainability” the draft plan ignores the distributional implications of catch shares entirely. Catch share programs can lead to boat owners being squeezed by armchair fishermen seeking economic rents. The crew and deckhands plying their dangerous craft are even more vulnerable in a catch share situation. Their already measly share of the catch is often further reduced to cover leasing fees, and there are even reports of crew being booted off boats in favor of share holders. Catch shares cannot be a progressive tool for fisheries management if hard working crews wind up as sharecroppers. Managers need to create an appropriate regulatory context within rigorous, scientifically-defined, and well-enforced annual catch limits. Only then might well-designed catch share programs be worth exploring.
Full textThis is one of two posts today by CPR member scholars evaluating NY Gov. David Paterson's recent executive order on regulations; see also Sid Shapiro's post, "New York Governor Channels Ronald Reagan: Governor Paterson’s Flawed Plan to Review Regulations."
It is open season on environmental, health, and safety regulations in New York. Last Friday, August 7, Governor Paterson issued an Executive Order directing his public safety agencies to review all of their regulations with an eye toward eliminating any that are “unnecessary, unbalanced, unwise, duplicative or unduly burdensome.”
This language could have been lifted directly from anti-regulation lobbying groups. The Governor's press release actually touts: "Streamlined Regulations Will Better Protect the Health, Safety and Welfare of all New Yorkers." Nothing could be further from the truth.
The Order requires each agency to conduct a 60 day comment period and then select at least two regulations to designate for further review, the selection to be based on which regulations have generated the most widespread or substantive criticism and opposition.
Think about what this means.
Paterson’s Executive Order gives well-financed, well-organized business groups a second bite at the apple on a host of regulatory battles that they have already lost. Regulations that protect the people and the state of New York already go through extensive public comment and review. Now regulations that that have been duly enacted, sometimes after much struggle, will be on the chopping block. This process ensures that the most controversial regulations, often those dedicating resources to protecting the most vulnerable among us, will be cherry-picked for review.
Full textIn this month’s Atlantic, Gregg Easterbrook writes that privatizing the seas through use of individualized transferrable quotas (ITQs) is the solution to the grave problem of overfishing. Recently, NOAA Administrator Jane Lubchenco came out strongly in favor of ITQs (which the agency is calling “catch shares”), and has committed her agency to “ transitioning to catch shares ” as a solution to overfishing. Would that the solution to overfishing were so easy!
Today, fisheries managers set a "total allowable catch" (TAC) for open-access fisheries. A fishery is open until that TAC is reached. Not surprisingly, there is often a mad scramble to capture as large a share of fish as quickly as possible. Sometimes fisheries, like the pre-ITQ Alaskan halibut fishery, are only open for a few days, or even a few hours.
Catch shares work to eliminate this incentive to catch all of the fish today. Thus, Easterbrook contrasts the orderly halibut fishery in Alaska today with the free-for-all of the pre-ITQ days. And catch shares do make a fishery more orderly. When a boat has a right to a specified share of the TAC, it removes the incentive to catch each fish before someone else does, the so-called “fisherman’s dilemma.” ITQs seeks to solve this problem by enclosing the commons and creating clear private ownership rights.
I question the assumption, though, that private ownership will convert fisherfolk into stewards of the long-term health of the fishery. As the recent financial collapse has shown, merely having a market with clear private ownership rights does not protect against short-sightedness, misvaluation and greed—all of which come into play when we talk about overfishing. All ITQs do is remove the economic incentive to catch the full TAQ immediately—they do nothing to address the more structural problems that bedevil fisheries management decisions: the political aspect of nominally scientific resource management decisions and overcapacity in the fishing industry.
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Guest Blogger: Liz Borkowski 