In May 2010, at President Obama’s request, outgoing Coast Guard Commandant Thad Allen delayed his retirement and became National Incident Commander for the response to the Deepwater Horizon oil spill, serving until the conclusion of the emergency at the end of September 2010. From that experience, Admiral Allen observed what he called “social and political nullification” of the National Contingency Plan (NCP) arising from public hostility to the responsible party and demands of state and local political officials for more active roles in the response. The NCP is the federal regulation governing oil and hazardous substance response under the Oil Pollution Act (OPA), the Comprehensive Environmental Response Compensation and Liability Act (CERCLA), popularly known as Superfund, and section 311 of the federal Clean Water Act. If that rule works poorly in practice, as Admiral Allen’s comments suggest, then addressing “nullification” issues will be important for responding better to future large-scale oil spills and avoiding or reducing environmental damage and economic losses. Admiral Allen was uniquely situated to comment on such disaster response and problems with the NCP. Before his service as incident commander, he led the federal response to Hurricane Katrina and oversaw a 2002 simulation of government capacities to respond to a spill of national significance off the Louisiana coast. He made his “nullification” comments in September 2010 testimony before the National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling (National Commission). He explained that demands by state and local officials and the public resulted in substantial changes in the actual response from the approach dictated by the NCP. Some of these changes, the National Commission claims, resulted in costly and ineffective responses, overlapping and conflicting efforts, and diversion of response equipment and personnel from locations which needed the equipment most urgently. This article uses Admiral Allen’s observations and subsequent reporting by the National Commission to highlight “nullification” and other problems with the spill response, to identify correctible sources of these problems, and to suggest changes to the NCP and related authority recommended to help resolve nullification and related problems. I leave to other authors the discussion of environmental impact reviews of offshore leasing decisions and drilling permits. The NCP and disaster response issues addressed here include • assigning the lead cleanup role to the responsible party for a spill of national significance raised serious questions about the party’s competence, credibility, and culpability. These questions were further reinforced by the absence of significant in-house federal spill response capability; • elected state and local officials were poorly integrated into the spill response, and they initially understood the response procedures poorly. These elected officials demanded and eventually played a much more active role than initially assigned them. A similar political dynamic should be expected in future spills, requiring much greater inclusion of state and local elected officials in planning, practicing, and implementing future spill responses; • outside government, academic, and industry technical experts were poorly integrated into response efforts. Similarly, the federal government initially lacked an independent source of information about the volume and flow rate of the discharge. Far more robust federal technical expertise, independent sources of key information, and capable outside oversight contractors will be needed to maintain public confidence in future responses to spills of national significance.
Russell V. Randle,
Spills Of National Significance And State Nullification,
Ocean & Coastal L.J.
Available at: https://digitalcommons.mainelaw.maine.edu/oclj/vol16/iss2/6