JURIST Special Guest Columnist Cdr. Tom Emerick (USCG), former counsel to National Incident Commander (NIC) for the Deepwater Horizon oil spill, retired Admiral Thad Allen, explains how existing regulatory rules and agency practices affected the response to the spill and says they need to be changed to better address large oil spills in the future…

The unprecedented impacts of the DWH oil spill have and will continue to lead to changes in our nation’s energy policy, how we regulate outer continental shelf activity and how we respond to big oil spills. As the former legal adviser to the National Incident Commander (NIC), retired Admiral Thad Allen, the below is my perspective on how existing legal authorities and policies effected this response, and how we might be able to do better.

The extraordinary complexity of the Deepwater Horizon disaster, combined with a lack of familiarity of the American people and leaders with how this nation responds to oil spills led to political and social frustration. This led some to blame existing legal authorities and polices as response inhibitors. The reality was that existing legal authorities and policies enabled the largest and most sustained disaster response in our nation’s history. The underlying problem with this response was the lack of adequate capability to quickly stop the massive amount of oil discharging from 5000 feet below the Gulf’s surface. Neither the private nor public sector was prepared for an event that was not supposed to be able to happen.

Regarding legal authorities and policies, this response was conducted under the National Oil and Hazardous Substances Pollution Contingency Plan (NCP) 40 CFR Part 300, which recognizes the need for a unified and interagency response to large oil spills. For spills in the coastal zone this unified response will be led by a Coast Guard Federal On-Scene Coordinator (FOSC), 40 CFR §300.120, and in cases of Spills of National Significance (SONS), a NIC can also be named to assist the FOSC with strategic coordination and communication, 40 CFR §300.323. During the spill the first FOSC, Rear Admiral Mary Landry, ordinarily the Commander of the Eighth Coast Guard District whose area of responsibility includes most of the Gulf of Mexico, was designated on April 21, 2010. The spill was designated a SONS on April 29, 2010 and Admiral Allen was designated the NIC on May 1, 2010.

The FOSC leads the Unified Area Command to ensure a well-coordinated response to the spill. This Unified Area Command brings all stakeholders (public and private sector) together in order to provide a coordinated response. As a stakeholder, BP was part of the unified command. This understandably did not sit well with most people. How could a company apparently responsible for the largest spill in our nation’s history have a major role in the response organization? This relationship led to the perception that BP was directing the response. This could not be further from the truth.

The underlying principle of the NCP, and the Oil Pollution Act of 1990 (OPA 90), which amended among other things §311 of the Clean Water Act, is that the polluter party pays and cleans up. This critical concept was a conscious public policy decision to put the onus on the responsible party during oil spill response. As a result, most spill response capability and capacity reside in the private sector. It would make no sense to exclude BP from the response, when they have access to most of the response capabilities and were writing most of the checks. As Admiral Allen, the NIC, aptly put it during a Whitehouse press briefing on May 24, 2010, when asked if BP should be replaced, “To push BP out of the way would raise the question, replace them with what?” In addition, the National Incident Management System anticipates participation of private parties in the unified command and this disaster required technical skills and capabilities only found in the offshore oil industry.

This public policy decision of relying on the private sector for critical response capability will be reevaluated post response. A decision must be made on what is the proper role of the public and private sectors. Should the public sector maintain response capabilities to respond to these low probability high consequence events, and shoulder a significant financial burden to acquire and maintain those capabilities, or should the private sector continue to bear this burden?

Although BP was a critical partner in this response, the federal government always remained in charge. Both the FOSC and the NIC had §311(c) authority under the Clean Water Act, which provides very broad authority to direct the responsible party to conduct appropriate removal actions. Both the FOSC and the NIC frequently used this authority to direct BP throughout the response. For example, the FOSC and NIC directed BP to fund a very large berm project off the Louisiana Coast, to build redundant containment systems to keep oil offshore, and to conduct seismic testing on the Gulf floor to ensure there were no additional leaks.

This response also highlighted how the NCP should work in coordination with Homeland Security Presidential Directive-5 (HSPD-5), Management of Domestic Incidents; the National Response Framework [PDF] (NRF); and the Stafford Act [PDF], 42 USC §§ 5121-5207.

In many disaster responses, such as a hurricane, federal assistance is generally only provided only upon request from the impacted state. This is the paradigm created by the NRF and the Stafford Act. In this paradigm, state governors have control over how and when federal assistance is delivered within their state. Under the NCP, the states have less control over the federal response. Although they certainly have the ability to influence decisions as part of the Unified Area Command, the federal government, through the FOSC and the NIC have primary decision making authority.

Since most of the major stakeholders (states, locals, and other federal agencies) were only versed in the NRF/Stafford Act where the states were in charge, many were not fully comfortable with the NCP paradigm where federal assistance is pushed vice pulled. This led to some friction. One example was in in the Louisiana Parishes, where autonomous home rule seemed to some to be at odds with the federally controlled response. Future SONS exercises must have full participation of stakeholders to ensure an understanding of oil spill response under the NCP.

The complexity of attempting to secure a wellhead 5000 feet under the Gulf surface, a palpable distrust of BP, and using a governance structure with which many stakeholders were unfamiliar led to resistance by some to work inside the NCP.

Despite the above, existing legal authorities and policies enabled the largest and most sustained disaster response in our nation’s history. However, there is significant room for improvement. Suggested improvements include:

• In the NCP and in statute the roles and the responsibilities of the NIC need to be better defined.
• The NIC should always have §311(c) federal removal authority under the Clean Water Act. In this response the NIC’s §311(c) authority was delegated during the response to the NIC.
• In the NCP and statute, provide additional emergency authorities and structures when a SONS is declared. For example:
• Expand Secretary of Homeland Security authority to recall Coast Guard Reserve
• Identify the composition of the interagency team supporting the NIC
• Establish a government led Flow Rate Technical Group to estimate the flow of oil

• Reconcile the differences between the NRF/HSPD-5 and the NCP through the issuance of a new HSPD or a modification of HSPD-5.
• Require review and amendment of Area Contingency Plans to account for uncontrolled deepwater wellhead oil discharges.

Tom Emerick is a Commander in the US Coast Guard Office of Legal Policy and Program Development and former counsel to National Incident Commander (NIC) for the Deepwater Horizon oil spill, retired Admiral Thad Allen. The opinions expressed in this article are the sole responsibility of the author and do not necessarily reflect the views of the National Incident Commander or the U.S. Coast Guard.

Suggested citation: Tom Emerick, Deepwater Horizon: Regulatory Context and Room for Improvement, JURIST – Forum, Sept. 6, 2010, http://jurist.org/forum/2010/09/deepwater-horizon-regulatory-context-and-room-for-improvement.php.