Professor Jamison Colburn worked as an enforcement litigator for the EPA prior to joining Penn State Law. Focusing his scholarship and teaching on environmental law and policy, he writes extensively about the protection of wildlife habitat and endangered species. He recently shared his thoughts on the BP Gulf oil spill.
Can you characterize the environmental impact of the BP oil spill?
In addition to what’s been said, which is immense and tragic, something that we need to bear in mind is that a lot of it is reversible. The threats to endangered species that we’ve seen are probably not reversible or not reversible in the short term. There are seven listed endangered species of sea turtles for example, five make their home in the gulf and to date I think the number I saw was 300 turtle kills from the spill alone, and that’s going to get worse over time. It seems to me that the risk to species already in jeopardy of extinction or at least the risk of local extinctions of those species is augmented in a catastrophe like this to an unacceptable level.
Were there environmental mechanisms in place which could have prevented this crisis?
There are two environmental statutes in the United States that didn’t play the role they were envisioned to play when the Minerals Management Service (MMS) started making these leases in the gulf. The Endangered Species Act (ESA) is one. Section 7 of the ESA requires any federal agency like the MMS to consult with the expert wildlife agencies before it takes any action that might jeopardize the continued existence of a listed species or that might degrade critical habitat. The MMS, in planning out these gulf leases and in ultimately signing them over to the oil companies, virtually ignored the counsel of the expert wildlife agencies National Oceanic and Atmospheric Administration (NOAA) Fisheries and the U.S. Fish and Wildlife Services (FWS) several times and this has been documented in the press to a great extent. The wildlife agencies asked for further consultation and were essentially rebuffed. That strikes me as really out of the ordinary because most federal agencies know that expert advice is critical to mitigating the impact of their actions. But the MMS didn’t seem to get that message.
The other federal statute that didn’t play the role that was envisioned for it was the National Environmental Policy Act (NEPA) and this is one of our core environmental statutes. It applies broadly and applies to all federal agencies taking actions that might impact the quality of the human environment. What the MMS did was to break apart its actions in a way that would consign these impact statements that NEPA is famous for to looking at to a trail of bread crumbs without ever knowing where the trail of bread crumbs would lead; without ever analyzing the big risks or the full likelihoods. Instead of analyzing the possibility of a catastrophic spill of millions and millions of gallons, they analyzed five years of drilling activities in the gulf where they said the possibility of a spill was small and that strikes me as a major let down for NEPA’s purposes.
Does the Endangered Species Act need to be strengthened?
The most important take away from this is that enforcement funding pays for itself. The U.S. Fish and Wildlife Services and NOAA fisheries have been underfunded for years. It’s ironic, and my research has pointed this out in a number of ways, that the most heavily managed, carefully assembled data stream that Congress has access to about endangered species in the United States is how much money is spent on a per species basis and a per agency-action basis. Congress gets this in annualized reporting from the wildlife agencies and so Congress is acutely aware of how much money is being spent on endangered species programs. And they keep cutting funding as a result. It seems to me that they keep getting this funding data even though they don’t see the fact that the list of endangered species has grown to almost 2,000 now. They don’t see how expensive these consultations and other actions are to do well. They don’t see how difficult it is to assemble meaningful habitat reserves for listed species and, consequently, while funding has dropped both for enforcement and for other programs, you don’t get anything like the response from the government in implementing the ESA that voters thought they were going to get when they had Congress enact the ESA. So changing the language of the ESA seems to be to be a fool’s errand if you don’t also increase the funding that goes along with changes to the statute.
That said, I think you could change the statute in a way that would streamline something like the Section 7 consultations, make them more meaningful, make them faster in process, make the services draw on more information and more informational sources, and ultimately create what I would call an integrative analysis of the risks that action agencies are undertaking. That kind of thinking just isn’t being done in the wildlife agencies to date basically because they’ve been so cut and underfunded.
What potential environmental causes of action might accrue as a result of the spill? Under federal environment law it seems to me that one of the most important liabilities that somebody like BP would be looking at here would be under Clean Water Act Section 311 which, ironically enough, apportions liability on a per barrel basis. I’ve been amused by statements from BP in the press that nothing turned on video of the spill site itself; so that independent scientists, for example, could estimate how much oil was being spilled into the gulf. At every point it seems that BP has resisted more information from the well-head itself escaping into the public domain. They resisted the camera in the first place; then they resisted a high res camera. The Clean Water Act very clearly in Section 311 apportions their liability or at least sets the upper bound of their liability on the basis of how many barrels of oil they spill — which I believe the statutorily amended cap is up to $4,300 in civil penalties per barrel. This spill becomes a much larger penalty liability for them just under the Clean Water Act as days pass. And that’s only one federal statute. You could see liability under Section 9 of the ESA for all the wildlife kills that I was mentioning. You could see liability under a host of other statutes that aren’t necessarily environmental statutes but are federal statutes otherwise applying to the situation.
What advice would you have for the current Administration on moving forward?
I think 30 years ago when U.S. environmental law was being structured as it is today, we made our peace with the fossil fuel economy. Most of the major environmental statutes understand that fossil fuel development and fossil fuel consumption in the United States was going to be a given. I think today we are at a juncture where you have to reconsider that. As prices go up for oil and natural gas and coal we have an incentive, our economy has an incentive, to seek out ever more distant, ever more difficult-to-recover resources.
One fact that escapes the casual observer on fossil fuels today is that keeping level the supply that we are accustomed to in the United States is becoming a Herculean feat given the demand that is rising in China and in India and in other urbanizing and industrializing nations. This means that the United States, in order to just have access to the fossil fuel energy it has become accustomed to, has to seek out ever more risky sources of oil and coal and natural gas. And those risks are going to be borne by the people living next to the production of fossil fuels.
It was only a month before the BP oil spill, on April 20, that President Obama stood shoulder to shoulder with the Secretary of Interior and announced an end to a 20-year moratorium on outer continental shelf drilling. And that was done, I believe, in a moment of Realpolitik and a need for U.S. consumption to come more into line with U.S. production. And I think all of us can understand that impulse. Long term, though, the legacy of a president in a moment like this is going to hinge on whether or not he recognizes the inevitable is on the horizon and the inevitable here is that fossil fuels are getting more risky to recover.
We’re going to have to rely on people who have profit motives at heart to do so, and maybe it won’t be a corporation that is as risk-prone as BP, but it might be an unforeseen risk the next time around that leads to a catastrophe like this. This wasn’t so unforeseen. In fact, ExxonMobil walked away from a deep water lease that they held in the gulf at about this depth about two years ago because it wasn’t safe to try to recover it. They were getting all kinds of irregular readings on the pressure as they were drilling further and further below the gulf’s floor and they decided ultimately to walk away from a hundred million dollar investment. They made that judgment because they knew what they may be facing in terms of a blowout on the floor of the Gulf of Mexico. You can rely on some market actors to make good judgments about these risks some of the time. You can’t rely on the market actors to make good judgments about these risks all of the time. And if we’re going to move past fossil fuels we have to start laying the groundwork in our energy policies of today to develop these other sources of energy.
Can any good come from this tragedy?
The previous administration liked to quote Churchill who said that no good crisis should go unutilized. It’s always an opportunity. If you look at the way environmental statutes were enacted in the 1960s and 70s, most of them came out of catastrophes. The Santa Barbara oil blowout in 1968 was what really galvanized Congress to pass the NEPA. Today we’re facing several major logjams in some of our first generation environmental statutes. They’re logjams that have been around for a long time and people on both sides of the aisle recognize that you could amend these statutes and make them better, but people on one side of the aisle can’t trust people on the other side of the aisle that the amendments they would get are sufficiently attractive to their own interests that they have to take the risk of trusting these other people. So they ultimately break down. Today we’re in a status quo that everybody recognizes is not in the national interest. You could spend hours diagnosing this logjam in the Endangered Species Act. You could spend hours diagnosing it in the National Environmental Protection Act, in the Clean Air Act, in the Clean Water Act, etc. Some of these logjams ultimately have to be broken if we’re going to get beyond where we are stuck today with environmental law and moments like this are really the only opportunity to do it. The single most important action that the federal government could take today, that leaders like the President can take today, while the public is actually paying attention to these issues, is to act with some dispatch and update these laws.
Ellen Foreman, Penn State University
