June 02, 2010

Looking Beyond Deepwater to the Horizon: Government-on-Demand Doesn't Work (Surprise!)

In following the oil spill disaster, it can be hard to think beyond the control effort du jour to the bigger picture. I was riveted by the latest of BP’s seven failed efforts to stop the flow of oil, hoping it would succeed and that the underwater tornado of oil devastating the Gulf, the coast, and the people whose livelihoods depend on these natural resources, would be contained, at least. And now that the top kill has failed, we’re all holding our breath for the next containment dome, hoping against all odds that this one will work.  Even if we do think a little more broadly beyond the control and response efforts, the most immediate question seems to be how to reform MMS, the agency whose oversight of BP and other oil companies was so compromised and inadequate. 

But it’s crucial that we wrench our attention away from the BP webcam, the drama of the efforts to staunch the out-of-control well, and the soap opera of MMS’s ethical failings.  We need to step back and consider the larger lessons of this disaster. The tectonic forces that brought us to this point aren’t ever going to make headlines.  And if we don’t learn what brought us to this horrible place, you can be sure we’ll be back here again soon. The fundamental lesson we need to learn is this: we don’t need smaller government and less regulation, we need effective government and effective regulation.

Now, in this moment of crisis, we realize how much we need and depend on government to protect us. By “we”, the public, I mean the workers who were killed in the explosion, the fisherman and other workers who depend on the Gulf for their livelihoods, and all of us who are affected by the horrible fouling of the Gulf and the marine creatures who live there. And now, too late, we realize that BP and other private corporations are not going to protect our interests. The echoes of the financial crisis are almost earsplitting.

BP is a hugely powerful and wealthy corporation. And now as ever, it stands shoulder to shoulder with the other oil companies and the powerful American Petroleum Institute (the oil industry trade association). So, even as we all watch helplessly and are rooting for the efforts to cap the well, the industry has lobbyists working to weaken any reform proposals that will eat into their and their shareholders profits. While this is extremely distasteful, it is arguably these companies’ duty under corporate law – to maximize shareholder wealth.  Recent reporting reveals how often BP and other oil industry representatives have made decisions and advocated for policies that contributed to this disaster. And yes, there’s plenty of room to criticize the many ethical and substantive failures in the MMS. But we need to be sure this fact doesn’t obscure the broader and more important lesson.

We should expect that private corporations will look out for their interests, not ours, unless the two happen to coincide. The financial crisis should have taught us this same lesson. Sure, BP didn’t want this disaster to happen, and it now has a strong interest in stopping the flow that coincides with all our interests. But in obtaining leases and permits to drill, in seeking to avoid environmental reviews, in seeking speed in the permitting process at the expense of care, in limiting the funding for the agency so there is less oversight and enforcement, in defending claims for its liability for harm from the spill, and in advocating for weaker laws – in all of these matters, our interest and BP's do not coincide. That’s why we need government with the legal and moral authority to stand up to powerful private economic interests on our behalf.

So why do we need to be reminded that we need government? Isn’t it obvious? Over the last thirty years, the right has sounded an incessant drumbeat for less regulation and smaller government. But in the wake of the oil spill, we need to recognize that that  drumbeat was what led to regulatory changes like eliminating the requirement that MMS consider worst case scenarios and that MMS prepare an environmental impact statement for drilling projects in the Gulf, including this one. Regulation and government have been badmouthed and denigrated as evils and deregulation and small government praised as invariably good. And it should come as no surprise that the loudest voices calling for less regulation and smaller government were corporations who reap more profit without regulation.

And that message once resonated with the public. Smaller government in theory meant lower taxes, so it was immediately popular. The costs of the financial meltdown and bailout show how false a promise this was, but this ideology came to dominate popular culture.  And it’s easy to criticize government and regulation. Yet now, when all eyes are turned to the Obama Administration and most are criticizing it for not doing enough fast enough, we suddenly want government to be there – powerful enough to respond immediately to this emergency.-- And we want it to have used greater force in its regulation of the oil companies.  But we can’t have government on demand, like a movie we call up on cable television that materializes like a genie from a bottle just at the moment we need it. If we want good government, vigilant government, we need members of Congress willing to stand up to the oil industry when the industry lobbies for weaker regulation that is contrary to the public’s interest, and we need agency officials and staff willing to take the heat from a powerful industry when the agency denies permits to protect the public interest. 

If we want that kind of government, we need to stop trying to weaken government and eliminate regulation. We need to change more than the culture at MMS, we need to change American popular culture and political discourse.  We need a government with adequate power to protect our interests from powerful corporations like BP. This will only happen if the public supports giving the government the power and resources it needs.   Yes, we must fiercely protect our privacy and our democracy and ensure there are adequate constraints on government power. But the small government ideology is a convenient distraction from the immense and completely undemocratic power private corporations wield in which we have no voice. When pundits pontificate about the evils of a powerful government, it’s hard not to think of the wizard in the Wizard of Oz saying “pay no attention to the power of corporate funders behind the curtain.”  

 We need to stop listening to an ideology that preys on our fears and conveniently makes government the villain and ask ourselves the fundamental question: what is it we want from our government? If we want effective government -- government that can and does protect our interests -- then we need stronger laws and leadership, and respectable funding to enablegovernment agencies to get the job done. 

Once we reject the mindless deregulatory agenda, we should think hard and creatively about how to reform our environmental, health, and safety laws to better serve our interests.   Perhaps it’s time to consider affirmatively what environmental legacy we want to leave our children and grandchildren. I and others have recently proposed a framework for a National Environmental Legacy Act that would require us to assess for the first time what legacy of publicly owned natural resources we want to leave to the next generation and would ensure that we preserve that legacy. It may be hard to believe, but even with all our environmental laws, this is not currently required. Ideas like an Environmental Competition Statute could create a race to the top for environmental performance.

But before we can accomplish any meaningful reform, we need to recognize the illusion that we can have pay-per-view government for what it is: a mirage. Otherwise, we’ll get what we pay for -- and the cost of that is way too high.

Alyson Flournoy, CPR Member Scholar; Professor, University of Florida Levin College of Law - Gainesville, Florida. Bio.

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