In the last week or so, I’ve been getting calls asking whether the U.S. Government has the legal authority to take control of the Gulf oil spill away from clueless British Petroleum (BP).
The background for this authority starts, as many oil spill-related laws seem to, with the Exxon Valdez incident in 1989. That led Congress to pass the Oil Pollution Act of 1990 (OPA), which I’ve blogged about here.
OPA, among other things, amended Section 311 of the federal Clean Water Act. Section 311 now provides in part that:
(A) If a discharge, or a substantial threat of a discharge, of oil or a hazardous substance from a vessel, offshore facility, or onshore facility is of such a size or character as to be a substantial threat to the public health or welfare of the United States (including but not limited to fish, shellfish, wildlife, other natural resources, and the public and private beaches and shorelines of the United States), the President shall direct all Federal, State, and private actions to remove the discharge or to mitigate or prevent the threat of the discharge.
(B) In carrying out this paragraph, the President may, without regard to any other provision of law governing contracting procedures or employment of personnel by the Federal Government--
(i) remove or arrange for the removal of the discharge, or mitigate or prevent the substantial threat of the discharge; and
(ii) remove and, if necessary, destroy a vessel discharging, or threatening to discharge, by whatever means are available.
The italics in this quote were inserted by me for emphasis. You can look this up at 33 U.S. Code Section 1321(c).
The details of how the federal government is to carry out the duties required under OPA are specified in the National Contingency Plan, which was created by the U.S. EPA; see 40 Code of Federal Regulations Part 300. The head of the Homeland Security Department, now Janet Napolitano, appoints a federal Incident Commander to carry out the government’s duties under OPA. On May 1, 2010, Secretary Napolitano named Admiral Thad Allen of the U.S. Coast Guard the Incident Commander for the Deepwater Horizon incident. Under 40 C.F.R. Sections 300.322(b) and 323, his duties include the following:
If the investigation by the OSC [On Scene Commander, here Admiral Allen] shows that the discharge poses or may present a substantial threat to public health or welfare of the United States, the OSC shall direct all federal, state, or private actions to remove the discharge or to mitigate or prevent the threat of such a discharge, as appropriate. In directing the response in such cases, the OSC may act without regard to any other provision of law governing contracting procedures or employment of personnel by the federal government to:
(1) Remove or arrange for the removal of the discharge;
(2) Mitigate or prevent the substantial threat of the discharge; and
(3) Remove and, if necessary, destroy a vessel discharging, or threatening to discharge, by whatever means are available.
(c) In the case of a substantial threat to public health or welfare of the United States, the OSC shall: . . . (3) Take whatever additional response actions are deemed appropriate.
There you have it. If Admiral Allen says “jump,” he can make BP say “how high, sir?” The Coast Guard could take over every aspect of the response to the Deepwater Horizon incident -- if it wants to. At the end of the day, the Coast Guard has the legal authority to do so and has boats with guns; BP does not.
And by the way, the Incident Commander’s powers extend to forcing BP to make information public. Section 311(m) of the Clean Water Act, found at 33 U.S. Code Section 1321(m)(2), provides that:
A) Recordkeeping. Whenever required to carry out the purposes of this section, the Administrator or the Secretary of the Department in which the Coast Guard is operating shall require the owner or operator of a facility to which this section applies to establish and maintain such records, make such reports, install, use, and maintain such monitoring equipment and methods, and provide such other information as the Administrator or Secretary, as the case may be, may require to carry out the objectives of this section.
(B) Entry and inspection. Whenever required to carry out the purposes of this section, the Administrator or the Secretary of the Department in which the Coast Guard is operating or an authorized representative of the Administrator or Secretary, upon presentation of appropriate credentials, may-- (i) enter and inspect any facility to which this section applies, including any facility at which any records are required to be maintained under subparagraph (A); and
(ii) at reasonable times, have access to and copy any records, take samples, and inspect any monitoring equipment or methods required under subparagraph (A).
So, Admiral Allen can tell BP to “make such reports” as he sees fit, for example an analysis of the chemical composition of the leaking oil, and may have copies of those reports and of any samples that BP takes, for example of dispersant levels in the water.
As BP has repeatedly shown itself to be untrustworthy and ineffectual, there has been growing criticism of the federal government for taking a backseat to BP in efforts to cap the wild well and clean up the mess. The latest comes from Obama supporter James Carville, as reported here in HuffPo. Carville told CNN:
"I think they actually believe that BP has some kind of a good motivation here.’ They're naive! BP is trying to save money, save everything they can... They won't tell us anything, and oddly enough, the government seems to be going along with it! Somebody has got to, like shake them and say, 'These people don't wish you well! They're going to take you down!'"
Why has the government acted as it has? It may be that they don’t want to “own” this spill, politically. It may be that they want BP to pay the cost of capping the well and remediating the damages, rather than have the taxpayers front the money.
I don’t know why the Coast Guard and the White House are acting in a way that Carville called “lackadaisical.” But I do know that oil is still gushing from BP’s well at a rate that is probably over 1 million gallons per day, and is now washing up on the beaches and marshes of Louisiana. In my view, it’s time for the Coast Guard to downplay coordinating, interfacing, liasing and the like, and to take command, as it has been trained to do.