When an oil production platform caught fire in the Gulf of Mexico near the Louisiana coast last week, a collective gasp would have been appropriate – from the residents of coastal Louisiana, who are no strangers to offshore oil rig disasters, from the fossil fuel industry, which is priming itself for a golden age under the incoming Trump Administration, and from the American public, whose oil reliance remains unchecked despite increasing awareness of both the massive downside of fossil fuel use and the increasing availability of clean, renewable energy sources.
If anyone was holding his or her breath, he or she soon exhaled. The rig fire was extinguished, no lives lost, no oil reported spilled. The people of the Gulf Coast, the oil industry, and the environment dodged a bullet, because the woefully inadequate, even counterproductive cleanup measures that were in place during the 2010 Deepwater Horizon disaster have not been improved since that catastrophe killed eleven rig workers and ravaged human health and the environment throughout the region.
As GAP’s ongoing investigation into the Gulf Disaster has exposed, the damage from that disaster, incidentally, has still not been fully remediated; the effects are being felt nearly seven years after the incident. Worse still, the industry continues to argue that significant changes are not necessary.
A History of Inadequate Responses to Tragedy
Human beings have an exceptional capacity for foresight, and yet we tend to act not preventatively, but rather, mostly, in response to crisis.
In the late 1960s, an increasing number of sizable oil spills raised public concerns about safe and effective remediation. The result in the US was the passage of the National Contingency Plan for oil-spill cleanup. The law describing the plan has been updated several times since its inception, but the last time was in 1994 – in the wake of Oil Pollution Act of 1990, itself the response to the catastrophic Exxon Valdez spill along the Alaskan coast in 1989. The necessary updates based on the lessons of Deepwater Horizon have, like dispersed oil, been submerged.
The 2010 BP Deepwater Horizon disaster was the worst accidental oil spill in human history. The explosion on the oil rig killed 11 workers, and approximately 200-million gallons of oil erupted from the compromised well-head on the floor of the Gulf of Mexico. As GAP comprehensively describes in its reports on the incident and its aftermath, remediation efforts arguably worsened the situation: the application of nearly two-million gallons of chemical dispersant – both at the water’s surface and underwater near the gushing well-head – created a chemical mixture far more toxic than the oil itself. And, because it is what dispersants do, the oil was reduced to smaller, less visible droplets – harder to detect, but more easily bioaccumulated. That is, the dispersed oil is readily absorbed into living tissue, where it is consumed by larger and larger organisms up the food chain, winding up – if not properly monitored – as the weekly special at your favorite seafood restaurant.
Although the concerns raised by the spill’s fallout led the Environmental Protection Agency (EPA) to craft a new rule for the Contingency Plan’s ‘Subpart J’ – the section dealing with dispersant use – that rule has lingered in legislative limbo for years now, constantly facing delays for no apparent reason – other than the lack of a new major disaster to re-stimulate public concern.
That new disaster nearly occurred last week. Luckily, the fire on the oil platform did not result in loss of life or spilled oil. Unluckily, that means we will wait even longer to see an improvement in cleanup methodology, and to see adequate study of the real threat posed by virtually unrestricted dispersant use.
Out of Sight, Out of Mind – but Not Out of the Environment
As the GAP reports describe, the use of dispersants is strongly encouraged by existing rules – in fact, their use has been more strongly encouraged with each revision to the Contingency Plan. As the GAP reports also describe, these dispersants – now stockpiled in massive quantities – are not well understood; laboratory studies and post-cleanup monitoring have proven inadequate. Yet improving requirements for study of impacts on human health and the environment is exactly what the industry is opposing by standing against EPA’s proposed rule.
Investigations following the Gulf disaster demonstrated that dispersants do not remediate the problems associated with an oil spill, and in fact – when used in tremendous quantities under real-world conditions – create negative outcomes. Studies have shown that oil mixed with dispersant results in a mixture that is over fifty times more toxic than the oil itself. The impacts of this chemical cocktail affected cleanup crews – who were discouraged from wearing protective gear (when it was even provided) due to industry fears that such hazmat suits would give the public an (accurate) impression that dispersants are harmful. It affected local fishing and tourism – dispersed oil bioaccumulated in shellfish, and local beachgoers developed symptoms from exposure to chemically-dispersed oil that was not visible, but nonetheless present at popular beaches along the Gulf.
Existing rules do not require sufficient testing or monitoring for making an accurate determination of the safety and efficacy of dispersants, yet the ‘risk-based’ analysis on which current rules rely calls for a determination of ‘Net Environmental Benefit.’ Any rational person must ask: how can one determine the net benefits of existing cleanup protocols when the harms posed by dispersants – on which these protocols heavily rely – are not acknowledged, or even understood?
During the period for public comments on the proposed new rule, thousands of groups and individuals submitted their opinions. Of these, 596 were direct comments, rather than sign-ons. Of the 596, only 24 came from the oil industry or from groups of individuals supporting the industry’s position that Subpart J is just fine, and the recommended change to a ‘hazards-based’ system is pointless.
This ‘hazards-based’ system demands that industry consider the risks posed not only by spills, but also by remediation measures – such as the use of toxic dispersants. The industry and its supporters believe that any method to clean up spilled oil is good, as long as the public does not see stark impacts like oil-covered sea life or oil-drenched beaches. If the net result is that oil is (or appears to be) gone, the fact that ecosystems and human health are being ravaged is irrelevant. By this reasoning, if the cure for cancer causes fatal heart attacks, at least we’ve cured cancer.
Self-Interest Over Public Interest
Consistent threads throughout the 24 pro-industry comments include fears of added cleanup costs, unsupported beliefs that dispersant use is the best and safest way to manage a major oil spill, concerns that additional testing and monitoring will somehow not improve understanding of efficacy and toxicity or help improve cleanup techniques, and the already-described out-of-sight, out-of-mind mentality.
Stakeholders along the Gulf Coast learned the hard way that oil that cannot be seen can still be hazardous. Through experience and a basic understanding of science we know that improved testing and monitoring help us understand the pros and cons of any product or activity. Dispersants have not been adequately tested or monitored to accurately determine their safety or efficacy in real-world circumstances. If additional costs must be incurred to ascertain a reasonable level of safety for the public and the natural resources on which we depend, then the fossil fuel industry must cover those costs.
In essence, despite more than ample evidence to the contrary, the industry seems to believe that existing measures for cleaning up massive oil spills are adequate. They are clearly waiting for the next spill to decide to act – as if the Deepwater Horizon disaster were no longer relevant.
More Drilling = More Spilling
Even with the reality that the National Contingency Plan generally and Subpart J in particular offer inadequate protection of human health and the environment, oil companies remain determined to drill anywhere and everywhere they think they might feasibly be able to extract oil. The incoming Trump Administration, including Secretary of State pick Rex Tillerson, is sure to see the relentless exploitation of dirty energy sources as a desirable goal. The more the oil companies drill, the more likely it is that another spill occurs very soon. Their bottom line may be able to withstand the cost of cleanup, but it may not handle the public relations backlash that is sure to follow another disastrous remediation effort.
The Deepwater Horizon spill was and remains a catastrophe for human health and the environment. Even if adequate monitoring is not obligatory under the current contingency plan, independent researchers will study the impacts of oil spills and the dispersants used to hide their visible impacts. With what has already been learned following the Exxon Valdez and Deepwater Horizon disasters, the risks cannot be ignored.
The industry has three options moving forward. The first is pure fantasy: invest in the development of renewable energy, and minimize the risk of an oil spill by decreasing oil production; prioritize safety in extraction, processing, distribution, and consumption, and develop a comprehensive, adaptable plan for cleanup in the event of a spill, with many local stakeholders involved, thorough monitoring to determine what techniques and material are most effective, and a design that allows for adaptive improvement based on observed outcomes.
Because the industry has shown little interest in such sustainable approaches, the second option, more realistically, is to make every effort to prevent spills (short of reducing production) – which arguably they do, even if motivated only by their bottom line – and assure that cleanup practices are as safe and effective as possible.
By fighting against the hazards-based approach and by denying that dispersants are themselves hazardous chemicals, the industry in cynically hoping that when the next spill happens, ‘out of sight, out of mind’ will rule the day – because the industry’s third option is to do nothing. This option has proved to be very effective – until such time as another spill occurs.
Environmental Counsel Adam Arnold worked with GAP’s clinical program while earning his J.D. from the University of the District of Columbia’s David A. Clarke School of Law, is a member of the Maryland Bar, and has an LL.M. in International Environmental Law and International Organizations from American University’s Washington College of Law.