View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Digital Commons @ Boston College Law School Boston College Law School Digital Commons @ Boston College Law School Boston College Law School Faculty Papers 11-1-2010 Learning From Disasters: Twenty-One Years After the Exxon Valdez Oil Spill, Will Reactions to the Deepwater Horizon Blowout Finally Address the Systemic Flaws Revealed in Alaska? Zygmunt J.B. Plater Boston College Law School, [email protected] Follow this and additional works at: http://lawdigitalcommons.bc.edu/lsfp Part of the Energy Law Commons, Environmental Law Commons, Law and Society Commons, and the Oil, Gas, and Mineral Law Commons Recommended Citation Zygmunt J.B. Plater. "Learning From Disasters: Twenty-One Years After the Exxon Valdez Oil Spill, Will Reactions to the Deepwater Horizon Blowout Finally Address the Systemic Flaws Revealed in Alaska?." Environmental Law Reporter 40, (2010): 11041-11047. This Article is brought to you for free and open access by Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Law School Faculty Papers by an authorized administrator of Digital Commons @ Boston College Law School. For more information, please contact [email protected]. Copyright © 2010 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120. Learning From Disasters: Twenty- One Years After the Exxon Valdez Oil Spill, Will Reactions to the Deepwater Horizon Blowout Finally Address the Systemic Flaws Revealed in Alaska? by Zygmunt J.B. Plater Zygmunt J.B. Plater is Professor of Law, Boston College Law School. wenty-one years ago, after the calamitous Exxon The Barack Obama Administration’s Gulf of Mexico BP Valdez oil spill (EVOS) in Alaska’s Prince William Deepwater Horizon Oil Spill and Offshore Drilling Com- Sound, the pervasive systemic flaws—that, according mission, like the Alaska Commission to set up after the Tto the State of Alaska Oil Spill Commission, had made a Exxon Valdez spill, will try to harvest conclusions about cau- major calamity not just possible but probable1—were largely sation—“why did this calamity happen?”—and about neces- cloaked behind the figure of a captain with a drinking prob- sary fundamental changes in how we manage the extraction lem. This time around, after suffering another horrific oil and transport of oil for the future. Poised against this cor- incident—this one almost 20 times larger than the Exxon rective agenda is the natural tendency of the industry and Valdez spill2—the question for national energy law and policy the communities that depend economically upon it to avert is whether, this time around, we’ll acknowledge and imple- systemic changes that potentially will constrain ongoing eco- ment the hard systemic lessons largely avoided two decades nomic activities. As in Alaska, within days of the Gulf of ago. The Deepwater Horizon tragedy will be a doubly disas- Mexico blowout, the industry and its supporters commenced trous occasion if it does not produce systemic changes for the defensive political and media initiatives to dilute public per- future, as the Exxon Valdez markedly failed to do. As White ceptions and impacts of the event.4 Meanwhile, legions of House Chief of Staff Rahm Emanuel said in another context, attorneys have been crowding into courts and agencies stak- “You never want a serious crisis to go to waste.”3 ing claims for billions of dollars in compensation and repara- tions, just as lawyers jammed flights into Alaska in 1989. Author’s Note: The author chaired the State of Alaska Oil Commission’s legal In both their similarities and differences, the Deepwa- task force after the 1989 wreck of the M.S. Exxon Valdez. The Commission’s ter Horizon blowout spill and the Exxon Valdez experience extensive reports and Appendices, issued in February 1990, are available are instructive. Many of the similarities are frustrating to online on the Alaska Resource Library and Information Service’s website, longtime observers. Some of the differences are immensely www.arlis.org/vol2/a/EVOS_FAQs.pdf. The last-minute preparation of this heartening—in some but not all of the Obama Administra- analysis benefited from the help, gratefully acknowledged, of two research tion’s words and actions, in potential corrective congressio- assistants, Brendan Boyle and Joseph Horton, both of the Boston College nal legislation, and in belated proposals for wide adoption Law School Class of 2012. The views expressed here, other than those cited of a 1990 Alaska Commission recommendation for citizen to the Commission and other sources, are the author’s own and not those of watchdog councils. the Commission nor of my research assistants. PUB:SB122721278056345271.html. Given the onrolling current event un- 1. See State of Alaska Oil Spill Commission’s Reports and Appendices, February derlying this present analysis, many citations herein are given to press accounts, 1990, available at www.arlis.org/vol2/a/EVOS_FAQs.pdf [hereinafter EVOS meanwhile noting that, over time, the factual record will be substantially deep- Commission Report]. ened by historical vetting. See, e.g., Peter Lehner, In Deep Water (2010). 2. TheExxon Valdez spill is generally reported as releasing approximately 250,000 4. Given the current political landscape, it may well also suit the Administration’s barrels, or 11,000,000 gallons, of crude oil. The April 2010, Deepwater Hori- best interests in public polling to move public attention on to other issues. See zon blowout spill now appears to have released roughly five million barrels, at Michael J. Evans, Oil Spill Pictures and the Media Blackout, BP Oil News, June a rate varying between 50-60,000 barrels per day from April 20 until a top cap 9, 2010, http://bpoilnews.com/oil-spill-pictures/oil-spill-pictures-bp-coverup- was applied on July 15, 2010. first-amendment/ (last visited Sept. 22, 2010). (“British Petroleum has thrown 3. See Gerald F. Seib, In Crisis, Opportunity for Obama, Wall St. J., a media blackout over the Gulf Coast, with the apparent complicity of some in Nov. 21, 2008, available at http://online.wsj.com/article/NA_WSJ_ our federal and local governments.”) 11-2010 NEWS & ANALYSIS 40 ELR 11041 Copyright © 2010 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120. 40 ELR 11042 ENVIRONMENTAL LAW REPORTER 11-2010 No oil spill, of course, like no coastal setting, is exactly design and safety of system elements, issued permits without like any other . The stony shores of coastal Alaska are very dif- required documentation, did not insist on strict compliance ferent from the reedy marshes and beaches of the Gulf Coast with corporate and federal rules, and on occasions when in ecology and climate 5. The Exxon Valdez oil spill soiled a they attempted to assert regulatory vigilance were resisted, coastal impact zone inhabited by no more than 30,000 peo- delayed, or overturned by the industry’s greater resources ple, with a sparse economy and only one state jurisdiction and political momentum 9. The “revolving door” between (and cost Exxon roughly $5 billion) 6. The Gulf of Mexico’s industry and regulators produced what political scientists affected coastal impact zone is home to nearly 14 million, often describe as “agency capture ”. 10 with a complex, marine-oriented economy in five separate The same complacency and inappropriate collusion is states, and the defendants’ financial liability is likely to be increasingly revealed in narrative details from the Gulf of commensurately larger 7. Mexico oil production structure (with the added element In terms of operational and institutional similarities of sex) 11. Regulators and regulatees played together in sym- between the EVOS and the Deepwater Horizon spill, many biotic relationships reflecting the fact that they considered regrettably exist . They reflect conditions that were and are all themselves part of the same unitary community 12. Deepwa- too prevalent in the oil production system . Neither spill can ter drilling at unprecedented depths was undertaken with be dismissed as an anomaly—as a supposed exception that casual oversight, with lax requirements for drill plans and proves a general rule of industry care and vigilance . restricted company disclosure of geological data 13. Cat- The Alaska Commission noted multiple areas in the egorical exclusions from full environmental reviews were “mega-systems” of extracting and transporting oil in which granted for deepwater drilling, and the potential for blow- the official players, both governmental and corporate, were outs ignored as virtually impossible, ignoring data showing enmeshed in a culture of complacency, collusion, and neglect . that blowout preventers are prone to failure 14. Monitoring In applying its lessons 20 years later, systemic analyses of and enforcement of regulations were haphazard . If violations issues raised in the public and corporate management of were assessed, they were vigorously contested to burden and these complex systems can be divided into two major sectors: deter further enforcement 15. Prevention covers issues of safe design, operation, and acci- From what we have seen so far from the Gulf of Mexico, dent avoidance before the fact of an oil spill event . Response these preconditions for distress, as in Alaska, were not solely includes the technical quality, practical implementability, prevalent with one company . BP may have been particu- and readiness of spill response contingency plans and the larly prone to corner-cutting in its dominance of the Aly- command structure that will put them into effect . eska management company and in the Gulf of Mexico,16 but the comfortable relationships with the U .S . Department of I. Prevention System Failures the Interior’s Minerals Management Service (MMS) and its lax oversight were shared by all the deepwater drilling com- The preconditions for destructive discharges lie latent within the process of planning, permitting, construction, and 9 .