At a Senate Environment and Public Works Subcommittee on Water and Wildlife hearing June 28 on “Status of the Deepwater Horizon Natural Resource Damage Assessment,” the chairman of the Louisiana Coastal Protection and Restoration Authority said that BP’s corporate control of funding was being used to suppress and interfere with the scientific assessment of natural resources damage in the Gulf region from last summer’s Deepwater Horizon oil blowout.
Post by Jamal Knight and Rick Piltz
Hearing page (with written testimony and archived webcast)
The need for truly independent scientific assessments of the natural resources damage to the Gulf of Mexico was of paramount concern to many of the witnesses and Subcommittee members. Witnesses, who represented the scientific community, the private sector, and both state and federal governments, expressed concerns about the transparency of the Deepwater Horizon Natural Resource Damage Assessment (“NRDA”) process and the scientific information being produced by the assessment. Real and serious conflicts of interest are created by a system that gives BP, a Responsible Party liable for damages caused by last year’s blowout that released more than 200 million gallons of oil into the Gulf, the authority to make decisions about the production of scientific information that can be used against the company.
The NRDA process was created after the Exxon Valdez spill in Alaska. It was designed, pursuant to federal law, as a vehicle to assess and restore natural resources injured by an oil spill. The NRDA is essentially a legal process that is resolved through a claim for restoration submitted to the courts. The essence of the process is to determine the type and amount of restoration needed to compensate the public for harm or injury to our collective natural resources that occur as a result of an oil spill.
Garret Graves, Chairman of Louisiana’s Coastal Protection and Restoration Authority, noted that current NRDA efforts are funded “under an informal cooperative agreement between BP and the Trustees [in the NRDA process]. In effect, BP has to sign off on our assessment activities before we can begin in order for those studies to be funded by BP.” (see his written testimony)
According to Mr. Graves, this creates two very real problems – 1) BP can delay their review and approval for work plans, thereby threatening the timely collection of ephemeral data; and 2) BP can refuse to concur in assessments that are contrary to their legal interests, or make funding contingent on the elimination of assessment activities that they view as damaging to their case.
Mr. Graves described some of his negotiations with BP – one of which resulted in BP requesting that the location of study be changed from Barrataria Bay to the waters off the east coast of Texas, an area where the environmental damage was not as great. He also suggested that BP uses its control over the restoration funding to delay approval, which effectively denies studies entirely.
“In the case of ongoing oil spill response activities, this has evolved even farther,” Mr. Graves said in his written testimony. “It is a modern-day case of Stockholm Syndrome whereby responders are dependent upon the financial resources of and have repeatedly shown signs of empathy toward the Responsible Parties — who hold them financially captive to the detriment of the will and best interests of the public.”
At the end the hearing, Sen. Sheldon Whitehouse (R-Rhode Island) questioned Mr. Garrett as to whether he thought there was any truth to the allegations that BP was simply buying up all the scientists, and shading the science that was coming out of the Gulf region. Mr. Graves was adamant that BP’s control of funding and the procedural structure of the NRDA process were tools that were being effectively used by BP to suppress and interfere with the actual assessment of natural resources damage in the Gulf region.
There are inherent conflicts of interest that need to be addressed by the process that allows BP to dictate the scientific projects conducted to assess their liability for environmental damage. Witness Donald Boesch, President of the University of Maryland Center for Environmental Science and a member of the National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling, noted that his Commission recommended that the Trustees should ensure that compensatory restoration under the NRDA process is transparent, appropriate and, to the degree possible, apolitical by appointing an independent scientific auditor. The independent auditor would ensure that projects are authorized on the basis of their ability to mitigate actual damages caused by the spill, with special care taken to assess and provide compensation in connection with poorly understood marine impacts.
Responding to the accusation that the NRDA is dragging its feet, the opening panel, comprised of Cynthia Dohner, US Fish and Wildlife Service Southeast Regional Director, and Tony Penn, NOAA Deputy Chief of the Assessment and Restoration Division, cautioned Chairman Cardin and other subcommittee members that this process will take many years to complete.
Mr. Penn began his testimony with a description of NOAA’s role as a Trustee in the NRDA process, and then gave an update on the current status of restoration efforts. He described many “emergency restoration” efforts which, under NRDA regulations, are undertaken during the response phase to minimize or prevent (further) injury to natural resources. On April 21, 2011, the trustees announced an agreement, called the Framework Agreement, whereby BP agreed to fund $1 billion in early restoration projects.
Both Subcommittee Chair Ben Cardin (D-Maryland) and Ranking Member Jeff Sessions (R-Alabama) praised BP for coughing up these funds, despite not being legally required to do so. However, there was general agreement among the witnesses and subcommittee members that BP had much more to do. Restoration of damaged ecosystems were the chief concerns of Graves and R. Cooper Shattuck, representing the state governments of Louisiana and Alabama, respectively.
Additionally, Senator Vitter (R-LA) stressed the need for affected states to get access to money for restoration efforts as soon as possible, in order to most effectively and efficiently mitigate and repair the damage to the coasts. He then noted that he and Senator Landrieu, also of the Louisiana delegation, had filed legislation (S.662; House companion H.R. 1228) that would require responsible parties to make a down payment on their natural resource damage liabilities, as they relate to offshore oil exploration and drilling activities. Sen. Vitter also made a push for amendments to the Clean Water Act that would give 80 percent of the fines and revenues collected from BP from their CWA liability back to the Gulf states to be used specifically for environmental projects.
Sen. Vitter used most of his time to question the science that was being produced as it related to fish stocks and baseline determinations, in terms of assessing the natural resources damage. In order to properly assess damage from the oil spill, there must be a baseline from which to compare. For the most part, each of the witnesses agreed that, prior to the Deepwater Horizon spill, the government had not committed enough resources to studying fish stocks in the Gulf region, and accordingly, all subsequent calculations about the actual environmental damage from the oil will be very difficult to obtain. Each of the witnesses from the scientific community agreed that moving forward, both and federal and state governments should put more resources in funding and studying oceanic ecosystems to establish baselines in the event that something like this happens again.
One final note: never one to miss an opportunity, full committee Ranking Member James Inhofe’s (R-Oklahoma) written opening statement for the record includes this gem: “Perhaps time will tell us that the greatest threat to the Gulf came from the Obama Administration’s regulatory overreach on offshore drilling.”