Open Letter To MMS

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.