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Cleaning Up BP's Mess in the Gulf of Mexico

David Pettit

Posted March 28, 2011

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How will BP be forced to clean up the mess it caused in the Gulf of Mexico?  There is a process created for oil spills by the Oil Pollution Act of 1990 called a natural resource damages assessment, or “NRDA,” usually spoken as “nerd-a” by NRDA nerds.   There is a good summary of the NRDA process as carried out by the National Oceanic and Atmospheric Administration (NOAA) here.  The bottom line is that BP will pay to investigate and restore the damage it did.

In the BP case, the NRDA process is overseen by federal and state natural resource trustees.  NOAA is leading this effort for the federal government, and each of the five affected Gulf states has appointed a lead trustee.  BP has also been invited to participate in the NRDA process, as the law allows. 

The theory behind the NRDA process is simple but the process itself is complex, often becoming constrained by the threat of litigation at its end.  First is the preliminary assessment stage, described by NOAA as:  “Natural resource trustees determine whether injury to public trust resources has occurred.”   This sounds simple but can take years; for example, for marine mammals with long breeding and maturation cycles, it can take 20 years or more to determining whether the oil spill has had an effect. 

Second is the injury assessment and restoration planning stage.  Per NOAA:  “Trustees quantify injuries and identify possible restoration projects.”  This can also be complex and time-consuming:  how do you restore losses to an endangered species like the sperm whale?  How do you restore miles of oiled wetlands where it’s not possible to clean the oil off the vegetation?

Last is the restoration implementation stage.  NOAA explains:  “The final step is to implement restoration and monitor its effectiveness.”  Monitoring can last for many years. 

Why does BP care about all this?  Because they have to pay for it.  And if BP disagrees with what the trustees ask it to do, BP can take them to federal court. 

One thing notably absent from this process is the opportunity for public participation.  The NOAA regulations only require one public meeting, to take comments on the trustees’ proposed restoration plan.  This is pretty late in the process.  NRDC is working with NOAA and at the grassroots level to have NOAA allow more and meaningful public input into all three stages of the NRDA process.  If there is litigation, it is unclear whether NRDC or other groups could become parties to the lawsuit.

A critical issue to be resolved in the NRDA process or, as in the Exxon Valdez situation, in a negotiated settlement, is the scope of a “reopener” clause.  This is important to protect against future damage that we don’t know about now.  Exxon negotiated itself a very sweet deal after the Exxon Valdez spill that all but eliminated the trustees’ right to come back to ask for more funding.  That should not happen again.

A positive result from the Exxon Valdez settlement was the establishment of a citizens’ advisory board, the Prince William Sound Regional Citizens’ Advisory Council.  Here is that body’s take on its effectiveness:  “Given the increasing challenges of operating in the oil industry, and realizing the important role that industry plays in the state and national economies, our nation’s oil supply and its homeland security, instituting a responsible and vigorous citizen oversight can substantially bolster public confidence in the integrity and safety of ongoing as well as new oil operations.” 

Public confidence in the integrity and safety of new oil operations is in short supply right now.  A rigorous, well-thought out NRDA process for the BP spill, with adequate public participation and a reopener clause that is not a give-away to BP, may help fix that.

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Norm BensonApr 4 2011 03:40 PM

"One thing notably absent from this process is the opportunity for public participation."

I respectfully disagree.

We are a representative democracy with the right to petition our government. We have representatives, who we petition, who may change the law (and therefore the regulation) in order to meet the will of the people. One has the ability to comment on all of the process at any time one chooses.

The NRDC does not represent the will of the people any more than the NRA does. Each organization has the ability to petition its government to communicate its wishes.

That the NRDA process is closed to public sniping strikes me as a good thing. We elect officials. The administration, in turn, puts competent individuals in charge of government agencies. These agencies contain employees hired for their competence, knowledge, skills, and abilities to see that the regulations have the intended effects of the enabling legislation.

Should the NRDC disagree with the NRDA process, they have the obligation to petition their government to change the legislation, not to moan that they do not have a place at the table to supposedly represent me.

Albert PittmanApr 7 2011 03:26 PM

Theres only one thing wrong with an elective representative democracy and thats the reresentatives dont have to follow the peoples wishes or needs.
If the past is any indicator of how well our representatives take care of the people yhen we should fire them all.
Anyone who thinks that our system is truly democratic is incredibly naive. The politicians and lawmakers have been tending to their own needs for plenty long enough for people to see whats going on. All through life we are tuaght lies about freedom and democracy, i believe i was 8 the first time i realized something is wrong and facts dont add up. One day people will have enough and ill be right with them to stop the crime in corporate american democracy that the representatives of he banks have committed.

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