Time to Start Connecting the Dots in Gulf Oil Disaster

            It’s time to start connecting some dots in the BP oil spill.  Now, over eight weeks since the explosion that destroyed the Deepwater Horizon well, facts are starting to surface (albeit not nearly as fast as the oil) that constitute evidence, admittedly some of it circumstantial, of significant deficiencies by both corporate and governmental entities.

             And while apologists for all the parties are still using the classic defensive tactics of pointing fingers at others and decrying the rush to judgment, some conclusions are becoming inescapable.

             But first the evidence:

             In May of 2000, federal regulators warned of exactly the kind of disaster that occurred earlier this year.  The report was prepared by the Mineral Management Service of the Interior Department (the same agency that has been the subject of intense criticism in the wake of the BP catastrophe).  It warned of extensive ecological damage resulting from a fire on a drilling rig that could lead to gushing oil from a damaged well.

             The report, prepared in the last year of the Clinton administration, was essentially ignored a year later when then-president George W. Bush (less than four months into his first term) issued an executive order that pushed all federal agencies to expedite the issuance of licenses for “energy development.”

             Here, in pertinent detail, is the text of the Bush executive order:

 “a) Agencies shall expedite their review of permits or take other actions as necessary to accelerate the completion of such projects, while maintaining safety, public health, and environmental protections.  The agencies shall take such actions to the extent permitted by law and regulation, where appropriate.

 “b) The increased production and transmission of energy in a safe and environmentally sound manner is essential to the well-being of the American people.  In general, it is the policy of this Administration that executive departments and agencies (agencies) shall take appropriate actions, to the extent consistent with applicable law, to expedite projects that will increase the production, transmission, or conservation of energy.”

             It seems, on its face, to be innocuous enough, except for the implicit message that would be understood by those agency heads who received it.  And that message was, to use the slogan that became ubiquitous more recently, “Drill, baby, drill!”

             Consider why such an executive order would have been issued.  Would it have been necessary if federal policy before its issuance had encouraged federal agencies to approve deep sea drilling?  Certainly not.  In fact, deep sea oil drilling in the Gulf had been rare before Bush took office.  Would it have been necessary to instill restraint on the issuance of deep sea drilling licenses?  Clearly not, as the previous answer indicates.

             No, the executive order that Bush issued, carefully worded though it was, was directive enough for those in charge of the agencies that permitted the oil industry (BP most definitely included) to drill the wells in the Gulf, one of which has now failed in catastrophic fashion. 

             And so, in the years of the Bush administration, deep sea oil drilling in the Gulf of Mexico exploded (pardon the pun), with hundreds of wells now in place.  And only one of them has failed, leading some to claim the failure was “just an accident.”  But definitions are important, and the definition of “accident” becomes critically important when trying to gain an understanding of the lessons to be learned from the BP disaster.

             In legal parlance, the word “accident” connotes an event to which no human blame can be attached.  These are events that, for all intents and purposes, are unavoidable.  In that context, the BP oil spill is hardly an accident. 

             Others have said that it resulted from negligence of some kind by the company.  In the law, we recognize such occurrences with the Latin phrase, “res ipsa loquitur,” meaning “the thing speaks for itself,” or, in other words, such things don’t happen in the absence of negligence.

             But negligence in human affairs can be classified by degree of culpability, and simple negligence, the cause of most rear-end automotive collisions (a driver momentarily diverted his/her attention from the task at hand), is clearly not an appropriate way to understand what happened in the BP disaster.

             As has been reported (see my column, “What We Should Learn from the Gulf Oil Spill,” dated June 4) and is now the basis of an investigation by the Attorney General, BP deliberately cut corners in choosing a less expensive and less safe casing for the Deepwater Horizon well.  Additionally, it chose to proceed with the drilling of the well despite having been concerned as long as eleven months earlier about the well casing and blowout preventer at the site.

             Proceeding in any event, and cutting corners along the way, is not simple negligence.  In the law, we recognize an ever-increasing spectrum of irresponsibility that results in culpability of one type or another.  Simple negligence leads to recovery by the injured party for actual damages suffered. 

             Gross negligence can, in some instances, allow for the recovery of punitive damages (payment intended to punish the negligent party rather than compensate the injured one).  Criminal negligence can lead to criminal charges.  And recklessness, when death has resulted (and let’s remember that eleven workers were killed in this incident), can be the basis for a charge of murder.

             So, how culpable was BP?  Here, we do need to wait for more facts.  But we can still connect some dots, and in so doing, we can discern some conclusions that, while not pleasant, still need to be appreciated.

            1.  The risk of an ecological disaster was known by both the oil industry and the federal regulators well in advance of the BP disaster.

            2.  The federal government ignored that risk in greatly accelerating the development of deep sea oil wells during the administration of George W. Bush.

            3.  The lack of effective regulatory oversight by the Obama administration allowed BP to cut corners in the start-up of the Deepwater Horizon well.

             These are the conclusions that are irrefutable at this point, the cries from apologists for all culpable parties notwithstanding.