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Captured Government: How a Federal Court Can Claim Deepwater Drilling Is Safe

I’m sure more competent counsel are going over the Federal District Judge’s ruling that the US Government did not make a sufficient case for imposing a temporary moratorium on new deepwater drilling permits. After listening to Dylan Ratigan Tuesday agree with Mary Landrieu that the moratorium was just so unfair to the industry, you’d think it was a foregone conclusion.

As I write this Tuesday night, MSNBC just reported that Secretary Salazar will issue an order reinstating the moratorium and provide the court with additional justifications. So it may be that the Government simply didn’t put it’s best case forward initially.

Judging from his reasoning, this particular judge probably wasn’t ideologically inclined to accept the government’s arguments in any case. And there’s the little matter of his reportedly having an apparent financial conflict in the industry stocks he owned.

But when a judge argues that we would never ground all airplanes just because a wing fell off one plane, you have to wonder. It’s a known fact that the US airline regulator has grounded entire fleets of similar aircraft when one of them suffered a serious safety failure. And the Nuclear Regulatory Commission has, in the past, required all nuclear plants built by the same manufacturer to shut down for inspections, when one of that manufacturer’s plants suffered a common mode safety failure. Government-ordered massive recalls of tens of thousands of cars and trucks happen all the time when a few are found to have dangerous defects. This judge just made it up that government doesn’t routinely do these things when the conditions warrant. It does, and industry always goes through denial and a lot of squealing, but the public expects its government to do this.

So in the absence of any evidence of hasty, poor lawyering by the Government’s attorneys, you have to wonder how any competent court could conclude that there isn’t a compelling case for stopping all offshore drilling until serious safety issues common to all of them are resolved. After all, they use essentially the same technologies, the same procedures, the same materials, the same contractors, the same safety rules and the same motives driving the same activities. This is as close to a no-brainer as you get. . . .


Consider what the industry itself has told us and what we’ve learned in recent weeks watching BP stumble from one failed attempt to another but still unable to cap at best a small fraction of the thousands of barrels of oil gushing from its uncontrolled well.

We know that the industry does not have a reliable method to stop a massive deepwater gusher in the event the blowout protector fails. We now know that BOPs have failed on dozens of occasions and when they did, they often caused major blowouts, a few of them castastrophic.

We heard the CEOs from other major oil companies confess to a House Committee that when this happens, they do not have an effective technology for stopping the gushing short of spending months drilling relief wells that may require multiple efforts before they’re successful. The irrelevant “we’re ahead of schedule” announcements forget to mention this.

So we know that a relief well may take many months before it manages, we hope, to bring this rogue well under control. In the meantime, millions of barrels of oil will gush uncontrolled into the ocean and cause irreparable harm.

We know that the environmental damage likely from such a gusher can be catastrophic to an entire region, and the economic costs can be in the tens of billions. We know we don’t know all the pathways or consequences or adverse effects, we don’t know how to predict or measure them, and we don’t know how to contain them.

We know that there are not sufficient resources — equipment or people — or plans, or coordination skills to capture/contain all of the oil rising to the surface or to prevent it from spoiling hundreds of miles of beaches, marshes, wetlands, etc. We know we won’t save even a tiny fraction of the wildlife this affects.

We know that federal regulators have proven to be notoriously incompetent and compromised; we know they didn’t do adequate environmental reviews for permits at other rigs subject to the moratorium; we know the industry has knowingly and deliberately corrupted the regulators; we know that safety regulations and enforcement have become hopelessly compromised in theory and in practice. We know we don’t know whether these other wells are safe or can be made so.

We know that an uncontrolled gusher is not merely possible, but a logical outcome from a plausible chain of equipment failures and human negligence. We know these things happen, even though the industry assured us they never do. We know all the oil companies used the same filings to give us virtually identical contingency plans and tell us these same lies.

We know that the high costs of deepwater drilling create strong pressures on the drillers to cut corners that put safety and environmental damage at risk.

And we know that every one of these findings could apply to any one of the dozens of drilling operations that would otherwise go forward without the moratorium. And because that’s true, we know that other nations are also imposing moratoria on similar operations.

On PBS News Hour, a spokeswoman for the American Petroleum Institute, which won this round, assured us that everything is fine, that all the rigs had been inspected and found safe. She was lying right in our faces. The fact is, we don’t even know yet what to inspect for, and no one can unconditionally vouch for the adequacy of the BOPs and mudding/cementing/sealing procedures and contingency plans they all rely on to prevent another blowout.

Given everything we know about the massive risks of further deepwater drilling as long as these issues are not resolved, only a judge completely oblivious to the public interest and predisposed to credit only the industry’s economic interests could rule that the US Government is not justified, even required by reason and its public responsibilities to stop all such drilling until there are assurances of safety and adequate mitigation.

Judge Feldman was appointed by Ronald Reagan. He’s just like half of the federal judges along the Gulf region who often have to recuse themselves because of ties to the industry. These are “federal judges,” but how different are they from MMS with robes? Oil is our opium, and Afghanistan’s corruption has nothing on us.

As the Gipper would say, “government is not the solution, government is the problem.” When government is captured by industry thinking, I’d say he had a point.

John Chandley

(edits and updates with video Wednesday a.m.)

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John has been writing for Firedoglake since 2006 or so, on whatever interests him. He has a law degree, worked as legal counsel and energy policy adviser for a state energy agency for 20 years and then as a consultant on electricity systems and markets. He's now retired, living in Massachusetts.

You can follow John on twitter: @JohnChandley