Why BP’s Oil Disaster Scenario Wasn’t Considered During Environmental Review
Updated to include video from MSNBC’s Countdown.
The Washington Post ran a story today noting the Department of Interior’s Minerals Management Service (MMS) overseeing the Deepwater Horizon’s drilling plans never performed the thorough environmental assessment presumably required under the National Environmental Policy Act (NEPA).
The Interior Department exempted BP’s calamitous Gulf of Mexico drilling operation from a detailed environmental impact analysis last year, according to government documents, after three reviews of the area concluded that a massive oil spill was unlikely.
We can view this as another egregious failing by the corrupt MMS and its total capture by industry during the Bush era (and likely before). But the problem is more wide spread. The larger tragedy is that NEPA, once America’s premiere law for protecting the environment, has been steadily watered down under successive pro-business Administrations.
NEPA, the National Environmental Policy Act, is one of the core environmental protection statutes, passed in the same era that gave us the "Clean Water Act," the Clean Air Act, Endangered Species Act and the creation of the EPA. These were new statutes when I was a new attorney for a California agency decades ago. California’s environmental statutes were partly models of, or modeled after these seminal statutes, so we looked to NEPA cases to interpret our own CEQA statute.
NEPA does not set standards like emission limitations; other statutes and agencies do that. Instead, NEPA is mostly a process statute that imposes requirements on federal government agencies, and indirectly, on the public and private projects that need agencies’ approval.
NEPA basically says that no agency can take a major federal "action" (such as make a decision, adopt a plan, grant a permit, etc), without writing an "environmental impact assessment" (EIS) and considering it throughout the agency’s review/decision-making process. So when an agency contemplates taking a major federal action, like granting a permit to drill a well, it must create the EIS first and then use it to guide its decision making all the way through the final decision. And if an agency’s decision is challenged in court, the EIS becomes a key part of the agency’s administrative record to explain and justify its decision before the reviewing court. An agency decision that ignores its own EIS can be overturned.
The EIS must seek out and describe every potential significant adverse impact on the environment that is reasonably foreseeable from the agency action. That includes impacts of building and operating a power plant, creating a new road, constructing a large building, transporting toxic materials when an accident might occur, or drilling a new well, opening a new mine, etc).
If an EIS fails to include any potential significant impact, it is defective and thus so is the review process that leads to the agency’s decision. Courts have reversed agency actions not merely for failing to perform or write an EIS but for creating a deficient EIS that missed or mischaracterized a significant impact. So the impact statement must be based on competent studies by competent experts who know what to look for and how to think about potential advserse impacts on the environment.
In addition to identifying all significant impacts on the environment, the EIS must identify all reasonable measures to mitigate the impacts, determine whether the project will include those mitigation measures and the extent to which the impacts will, in fact, be mitigated. Further, the agency’s EIS must also evaluate reasonable alternatives to the proposed action — such as a different project, moving it to a better location, making it smaller, using a different technology, and a "no-project" alternative. The agency must then evaluate whether the significant environmental impacts can be avoided by doing something different or not doing anything. An agency is then under a duty to impose all reasonable mitigation measures before it can approve a project that the EIS finds would create significant environmental impacts.
So the NEPA is basically a "full disclosure" mandate for all agency actions that might impact the environment, a means to identify and select mitigation measures, coupled with the threat of reversal of the agency’s action for failure to provide full disclosure (or even to give adequate consideration to the EIS). Many federal actions/decisions have been overturned for failure to follow the full-disclosure and consideration of mitigation and alternatives process.
The NEPA statute was a huge advance in environmental protection. It stopped many awful projects dead in their tracks, forced project developers to scale back or revise their projects in order to avoid EIS findings of significant environmental impacts and the costs of mitigation. In addition to forcing developers to think about the environment, NEPA induced project developers to include more mitigation measures in their initial project proposals, knowing that the EIS would identify impacts and possible mitigation that the agency would have to consider.
NEPA worked exactly as expected. Early courts slapped down agencies for failing to perform EISs (which reversed the permits the developers needed to begin their projects). Courts reversed agencies for creating inadequate EISs. There are hundreds of cases defining what "significant," "impact" and "reasonable mitigation" and "reasonable alternatives" mean in every context. What is an adequate review of the EIS by the agency? An agency can’t ignore its own EIS; it has to be an integral part of the decision-making from day one.
The NEPA applies to agencies, but agencies imposed the costs of preparing an EIS on the industry proponents of each project. This meant a potentially large new cost to project developers.
As a result, the Act created a large cottage industry of people who perform environmental assessments and write draft EIS documents and supporting studies for the agencies. We created a class of scientists and environmental researchers and analysts and made their findings part of federal decision-making. Hooray!
Many industries who need agency approvals for their projects eventually created their own in-house EIS generators or relied on consultants offering an EIS service. They do the studies, write the supporting reports and testimony, and draft an EIS to hand to the agency to adopt as its own. A typical agency can then retain a smaller staff to just go over the draft EIS handed to them. Over time, this meant that agencies lost whatever staffs they once had to do the studies themselves or review them with sufficient expertise. With industry incurring the costs, industry worked to control the editing and the spin on the initial documents and limit the quality review by the agency. The agency staff then became, at best, the quality control, or at worst, the cover for a poor EIS, depending on regulatory capture and staff budgets (which were also influenced by industry and sympathetic legislators).
But the NEPA process can still be backed up by protest groups (anyone who opposes a project, for any reason) who can take an agency with a defective EIS to court to try to get a better EIS (or more likely, to stop the project). The NEPA EIS requirement can thus be an effective legal tool to stop, slow down, or change industry and government projects with egregious impacts.
Because the EIS can be a minefield and potential show-stopper for a project, industry has been working for decades to weaken NEPA by creating categorical exemptions for certain types of projects, or allowing the agency to do one generic EIS for a whole group of similar projects, instead of creating a project-specific EIS for each project. That’s apparently what happened with the Horizon well.
So it would have been perfectly normal for the MMS to use a scaled down or "generic" EIS over and over for well after well in the Gulf, and to incrementally create a cursory EIS process that was so watered down that it effectively said, "nothing here, move along." And since really bad things can’t happen, then adverse impacts won’t occur, so no further mitigation is required.
And as each scaling back sneaks through the now more conservative, business friendly courts — who have long since ceased to be the activist environmental safeguards they were in the 1970-80s — the power of the EIS to force agencies to make better environmental decisions has slowly and tragically declined.
So when pro-industry, anti-environmental politicians tell us that the BP oil disaster met all the environmental reviews, and what happened was just an "act of God," just remember that industry lawyers have been working for decades to make sure government agencies think that way and have even less information before them to see it any other way.