Assessing the Federal Response to the Deepwater Horizon Catastrophe

by Joel Mintz

May 25, 2010

The recent horrific events in the Gulf of Mexico have presented immense challenges to the Obama administration and many of the federal career officials who are responsible for regulating the safety of offshore oil extraction and responding to spills like the one that continues to gush from the remains of the Deepwater Horizon oil rig at great volume. To their credit, a number of presidential appointees and career officials with duties regarding spill countermeasures have been working very hard to oversee the intense and complex efforts now underway to cap and contain the spill—efforts which have been greatly complicated by the depth and inaccessibility to human beings of the point of discharge. Undoubtedly, their response to this emergency has been far more robust than the G.W. Bush administration’s confused and tepid reaction to the devastation wrought by Hurricane Katrina. Nonetheless, thus far the federal response to the emerging environmental disaster in the Gulf raises a number of significant questions and concerns.

One basic question is why the Obama administration was so quick to reverse the president’s campaign promise to oppose the expansion of offshore oil drilling—and why it is now so adamant in its insistence that such drilling continue to expand.  It seems quite possible that the administration’s positions have, at least in part, been an attempt to enlist the political support of oil companies for broad federal legislation regarding climate change and energy. Nonetheless, the president’s current stance on this issue seems substantively flawed and politically maladroit. As recent events have shown, deepwater offshore drilling is far from safe for the environment. It is also designed to produce a fossil fuel whose continued use will generate greenhouse gases that will exacerbate global climate disruption. Moreover, the Obama administration’s continued insistence that new oil and gas production go forward in the Gulf region seems out of touch with public opinion in the Gulf states—and elsewhere in the nation—which appears to be shifting rapidly away from support for new oil and gas drilling in the waters off America’s coasts.

A second (related) question that arises is why the Department of Interior's Minerals Management Service (MMS) has continued to grant new permits and environmental waivers for fuel drilling projects in the Gulf. According to an article in Monday's New York Times, since the April 20th Deepwater Horizon blowout, MMS has approved at least 19 environmental waivers for Gulf drilling projects and at least 17 new permits. At least 5 of those waivers and 7 of those permits have been granted since President Obama announced a “moratorium” on such waivers and permits. This state of affairs raises real questions as to whether the responsible MMS officials are more responsive to the oil companies they nominally oversee than the elected public officials whom, in theory, they report to.

Third, it seems distressing that the administration’s most recent plan for reorganizing the MMS will leave the tasks of royalty collection and permit granting in the same MMS office. If it is implemented, that arrangement will leave wide open the possibility that the conflicts of interest and corruption that have plagued MMS for a long, long time will continue unabated. If MMS is to continue to have regulatory jurisdiction over offshore oil and gas drilling -- a highly doubtful proposition at best -- one can only hope that the current administration will make certain that its permitting and royalty assessment functions are fully and permanently separated.

The Obama administration has certainly moved promptly, in some respects, in their reaction to the Deepwater Horizon disaster. Nonetheless, it needs to think more clearly and practically about some of its actions, plans, and policies, as masses of oil pour without cease into the Gulf of Mexico from the sea floor and the public, with ever-increasing irritation, asks why.

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Also from Joel Mintz

Joel A. Mintz is a tenured full professor at Nova Southeastern University Law Center in Fort Lauderdale, Florida.

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