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David Pettit’s Blog

Open Letter To MMS

David Pettit

Posted May 14, 2010

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Dear Minerals Management Service:

Hi.  I’m old enough to remember the Santa Barbara oil spill in 1969.  I worked on the Exxon Valdez litigation and know about the Oil Pollution Act of 1990 that was enacted as a result of that accident.  As a lawyer for NRDC, I’ve handled litigation under the National Environmental Policy Act (“NEPA”).  I’ve been following the BP oil rig blowout and blogging about the legal issues involved.  Here are a few things I’ve noticed.

  • Regulatory capture.  Know what this is?  It’s when a regulated industry dominates or captures the agency that is supposed to be regulating it.  Let’s face it:  you’ve been captured.  Your lax treatment of offshore drilling under NEPA is a disgrace.  Allowing the oil industry in the Gulf to police itself has led, literally, to disaster.  To fix this will require more than the ethics training that some of your staff had to undergo after some indiscretions with industry personnel.  You need to start over.
  • Conflict of interest.  My colleage Lisa Speer has blogged about this.  It’s a mistake to have your regulatory function and royalty-collecting function under the same roof.  As Lisa wrote, fixing this is a good first step – but there is much left to do.
  • Industry practices.  You may know what “technology forcing” is.  The US EPA does it frequently under the federal Clean Air Act.  EPA does not just accept industry practices as the best that can be done and stop there – as you have done.  You need to learn from EPA.
  • NEPA.  NEPA requires environmental review and a public process for most federal projects, or projects on federal property like the OCS.  You have allowed BP and others to get away without any environmental review of Gulf of Mexico exploration and drilling plans.  There was no independent NEPA review of the lease sale to BP that led to the Gulf oil drilling disaster.  Incredibly, you have kept up this behavior after the BP oil rig blew up.  This needs to stop – now.
  • Safety moratorium.  President Obama has implemented a short-term moratorium on new drilling.  This needs to be extended until we can be sure that all offshore rigs are really safe.
  • Retrofitting.  It’s not enough to make sure that new wells are safe.  Whatever lessons are learned from the this oil drilling failure should be applied to existing wells also.  It would be foolish not to.
  • Safety.  Sometimes necessary safety features cost money.  You need to stop caving in to industry when they complain about this.
  • Science.  The New York Times is reporting that internal agency opinions unfavorable to the oil industry were suppressed and that MMS repeatedly failed to consult with, or heed the opinions of, the National Oceanic and Atmospheric Administration, as required by the Endangered Species Act and the Marine Mammal Protections Act.  This lawless behavior needs to stop.
  • Black Swan events.  These are low-probability, very high risk events.  You need to make oil companies plan for these rather than ignore them as unlikely.  Nuclear plant meltdowns are unlikely but comprehensive planning for a disaster is required by federal statute.  You need to learn from this.

As we say in the legal world, I look forward to your early response.  In public.   If these issues can’t be addressed quickly, MMS needs to be abandoned like a dry well and we need to start over.

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Max PoudreMay 15 2010 02:21 AM

Do you believe that 24 days into the spill the Fed at any level is attempting to independently verify the amount of oil that is really spilling?

Put another way, it seems possible from the many news reports I have been digesting that BP succeeded in masking the real "estimated" spill rate up until the last few days. It seems very likely that BP was well aware of a much higher spill rate early on.

BP's potential dishonesty on this subject has prevented much more in depth oversight and mobilization by the Feds and state actors to assist them in what now clearly appears to be an all hands on deck emergency that BP likely knew it could not handle on its own many days ago.

The comments above are based on some very disturbing estimates from some apparently unbiased, scientific experts who are estimating the oil flow is dramatically higher than the 5000 barrels/day the navy and BP have been discussing. How is it possible that some of the top experts in subsea fluid engineering systems were not consulted and/or allowed to make an assessment until so long after this thing has emerged as a catastrophe.

It certainly looks like BP has been waging a disinformation campaign regarding the flow level that apparently succeeded in keeping the Feds from becoming much more deeply involved in a response and sooner. That is to say, doesn't it seem that more extensive state and federal forces would be in place by now if the operating wisdom regarding the flow was closer to the 20,000-60,000 barrels/day that appears to be the more accurate flow rate?

I would love to hear your thoughts on this.

Carolyn O'NealMay 17 2010 04:00 PM

Excellent letter and very informative to the general public - like me.

Comparing the oil industry to the nuclear industry is a good start. Another would be to Center for Disease Control. I don't want a bunch of lax goof offs protecting me from smallpox. Another would be the prison system. What if they released Jeffrey Dalmer or Osama Bin Ladan after a drunken binge? The list is endless. Some things really must be too big to fail because the alternatives are inconceivable.

Thank you for holding the government's feet to the fire on this on.


LinMay 17 2010 04:55 PM

I second Mr. Poudre's sentiments. All of this is a travesty, including the Administration's adoption of BPs slogan "it doesnt matter how big the spill is."

they really think the public is dumb. they've kept away the independent scientists that can measure the flow at the root. and what in the world is NOAA there for???? this will be Obama's Katrina if this story continues to unfold as is.

Neal LormandMay 17 2010 04:56 PM

I agree 100% with all of the foremention arguments. BP, in my opinion, has been grossly negligent, at the very least. I beleive their attempts to mitigate the severity and magnitude of this spill will eventually prove to be devestating to the economies and livelihoods, of the citizens, of the gulf coast states. The adverse impact on our fishing and seafood industries alone, is already evident.They are in deep trouble because of BP's arrogance. As a native Louisianian, I am appaulled and angered at the sight of what is happening here and at the prospect of what is to come. British Petroleum, a foreign company making billions of dollars off our shores, is destroying my home state and the lives of so many people. I fear that before this is over, the destuction will be so catistrophic, that I won't live long enough to see it resored to the beautiful state it was before that explosion. God Bless us one and all !

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