“The national interest requires the continuation and expansion of a strong offshore drilling program, but one with a better balancing of risk and with greater safety protections for human life, the environment and the economy.” -The National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling

On April 20, 2010, two days before Earth Day, an oil drilling rig exploded in the Gulf of Mexico, commencing what is now commonly referred to as our nation’s worst environmental disaster.  The explosion of the Deepwater Horizon drilling rig immediately impacted many lives – killing 11 rig workers and injuring 17 more.  The rig sank two days later, on which afternoon – Earth Day 2010 – a resultant oil spill was discovered.  Apart from the immediate and deadly impact that the explosion had on human lives, the oil spill has impacted many more lives by damaging habitats, industries, ecosystems, and the environment.  The oil continued to gush for nearly three months before the well was finally capped on July 15, 2010, and then pronounced effectively dead another two months later.

In the months following the explosion, BP, as a responsible party, and the government have taken on roles as emergency and clean-up responders; the government has taken two steps further by (1) setting up a compensation fund for claims arising from the oil spill, and (2) beginning to study and analyze the explosion and spill in an effort to prevent future similar disasters.  That second analytical step started when President Obama signed an executive order on May 21, 2010, establishing the National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling.  The Commission’s three-pronged mission is to: “(a) examine the relevant facts and circumstances concerning the root causes of the Deepwater Horizon oil disaster; (b) develop options for guarding against, and mitigating the impact of, oil spills associated with offshore drilling, taking into consideration the environmental, public health, and economic effects of such options . . .” and (c) submit a public report to the President containing its findings and proposal options by January 12, 2011.  In short, the Commission is to report on what exactly went wrong and suggest how to prevent similar disasters in the future.  The public report is expected to include options for improving federal laws, regulations, and industry practices.

The Commission is co-chaired by former U.S. Senator Bob Graham (D-Florida) and former EPA Administrator William Reilly (appointed by former President George H.W. Bush).  The Commission identified key issues for its analysis, including general contextual investigation of offshore drilling and regulatory oversight of the offshore drilling industry, as well as targeted inquiries into the specifics of the BP Spill (The Macondo Well Explosion and Drilling Safety, Oil Spill Response, Spill Impacts and Assessment, and Restoration Approaches and Options).  To date, the Commission has held four public meetings.

The first public meeting was held on July 12-13, 2010, in New Orleans, Louisiana, and featured a full-day of panels on economic impacts of the oil spill and a second full-day of panels on updates from federal officials on the clean-up and impacts, local officials on overall community impacts, and local leaders on social and ecological impacts.  The second public meeting was held on August 25, 2010, in Washington, DC, and featured testimony from regulatory, industry, and non-governmental officials on the history and expansion of offshore drilling, existing regulatory structure and various agency consulting roles, identification of regulatory challenges, and industry culture and risk management.  The third public meeting was held on September 27-28, 2010, in Washington, DC, and included a full-day of testimony from federal responders on decision-making, the amount and fate of the oil, the use of dispersants, the future of offshore drilling, and perspectives from Alaska’s Arctic Outer Continental Shelf offshore exploration.  The third meeting included additional testimony on recovery, impacts, and restoration efforts and plans by elected officials, regulators, academics, and environmental non-governmental officials.  After receiving testimony on those issues at the first three public meetings, the Commission staff prepared and released draft reports, including papers on Decision-Making Within the Unified Command, The Use of Surface and Subsea Dispersants During the BP Deepwater Horizon Oil Spill, The Challenges of Oil Spill Response in the Arctic, The Amount and Fate of the Oil, and A Brief History of Offshore Oil Drilling.  The fourth and latest public meeting was held on October 13, 2010, and consisted of the commissioners’ deliberations, followed by a short opportunity for public comment.  At this latest meeting, the Commission presented potential general findings on offshore drilling and its regulatory oversight.

The Commission’s potential general findings on offshore drilling recognize the importance of offshore drilling to meet our nation’s energy needs and the industry’s technological innovations and advancements, while presenting the challenges that the industry faces including complex management problems, safety inadequacies by some companies, and industry-wide failure to provide adequate contingency plans. The quote at the beginning of the article is one of these findings and appears to be a bottom-line summation statement of the Commission’s position with regard to the offshore drilling industry.

The Commission’s potential general findings on regulatory oversight begin by pointing out the major failing of the Minerals Management Service (MMS): royalty issues have consistently taken precedence over operational safety and environmental protection.  The Commission next notices regulatory coordination issues due to the division of responsibilities among regulators. After presenting those general governmental shortcomings, the Commission points out several systemic inadequacies presented by MMS regulation of offshore drilling: technological and operational complexity, MMS’ passive approach to risk management, insufficient oil spill planning, the importance of continual scientific review for decision-making, political pressure placed on MMS, lagging MMS oversight and inspection of lessees, and inadequate resources and congressional oversight.

So far, the Commission has taken a holistic approach to the investigation of the factual circumstances of the BP Deepwater Horizon Oil Spill, and regulatory circumstances of offshore drilling more generally.  In a transparent and public manner, the Commission sought and received testimony on those issues, analyzed that testimony, prepared reports, and discussed proposed general findings.  Whether and how these proposed general findings will materialize into formal and more specific findings, as well as what kinds of options for industry and regulatory improvement will be recommended remains to be seen.  It also remains to be seen whether and how the Commission is able to impact the offshore drilling industry’s practices and regulatory oversight.  The hope of the Commission is that its work can go a long way towards preventing future environmental disasters.

-Kristien Knapp, LLM Candidate

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