Just before the July 4 recess, Representative George Miller, Chairman of the House Education and Labor Committee, introduced the Miner Safety and Health Act of 2010. Recent explosions at Massey Energy’s Upper Big Branch Mine, Tesoro’s Anacortes (WA) refinery, BP’s Deepwater Horizon drilling platform, and U.S. Steel’s coke oven in Clairton (PA), highlight the life-threatening hazards that American workers face on a daily basis. Despite these hazards—and the myriad other less serious or even chronic hazards that don’t make headlines—workers continue to do their jobs day in and day out.
Contrast these workers’ diligence with that of certain members of Congress, who, in advance of today’s committee vote on the Miner Safety and Health Act, have said that they want to hold off on legislating until they see the official reports on the causes of the Upper Big Branch explosion. Sure, official reports on that explosion will reveal important details about exactly what caused that particular disaster, notable for its severity and harrowing death toll. But as MSHA proved with its five-day “inspection blitz” of 57 underground coal mines in April, miners continue to work in conditions that we know are hazardous. The problem isn’t that we don’t understand the hazards that lead to explosions or other dangerous conditions, it’s that companies are choosing not to comply with the standards that would protect their workers. In just three days, MSHA issued more than 1,500 citations for violations of federal mine health and safety standards. MSHA had to order a halt to operations at six mines in Kentucky because of rampant violations. Clearly, economics—not workers’ safety—is the driving force for these companies’ decisions about compliance with federal law.
The Miner Safety and Health Act is designed to alter the current economics of noncompliance, where the penalties for violating worker safety protections are too often seen as just the cost of doing business. Among other things, the law would increase penalties, force mining companies to fix workplace hazards while they contest citations, and give whistleblowers a right to sue employers on their own behalf when the government’s whistleblower protection agency works too slowly. The bill is a systemic response to systemic problems. Waiting for official reports about the specific causes of one disaster will only shift the debate toward piecemeal reforms that will leave millions working in the same dangerous conditions without the full array of new protections afforded by the bill as introduced.
Full textCross-posted from Legal Planet.
As he had promised, Interior Secretary Ken Salazar on Monday issued a new decision memorandum suspending certain deepwater drilling operations.Monday’s decision replaces the moratorium that the federal District Court in New Orleans enjoined on June 22, and which the Fifth Circuit declined to reinstate last week.
As I made clear in my post on the Fifth Circuit decision, I think both the District Court and the Fifth Circuit were wrong on the first moratorium. Even if they were right, however, this new one should pass muster.
The new decision calls a halt to exploratory drilling by rigs using subsurface blow-out preventers (the kind that failed on the Deepwater Horizon) or surface blow-out preventers on floating rigs, and to issuance of new permits for that kind of drilling. Like the first moratorium, it does not restrict production from existing wells. It will last until November 30, 2010, but could be lifted earlier if circumstances warrant.
The new decision squarely addresses the key concern of the District Court, which was that the first moratorium did not clearly explain the boundary line it drew (suspending exploratory drilling in more than 500 feet of water) or its conclusion that deepwater drilling threatened serious damage. The first time around, Secretary Salazar issued only a one-page memorandum. This time, he explains his reasoning in a detailed 30-page document, which in turn refers to a number of reports and other analyses since the Deepwater Horizon explosion.
Full textCross-posted from Legal Planet.
Previously I wrote about the shortcomings of ESA consultation on the Deepwater Horizon and other offshore oil rigs. Today I take up the implications of the spill itself under the ESA.
At least one ESA lawsuit has already been filed, and at least partially resolved. The Animal Welfare Institute, Center for Biological Diversity, Turtle Island Restoration Network and Animal Legal Defense Fund filed a complaint on July 1, accusing BP and the Coast Guard of killing endangered and threatened sea turtles in the course of burning off oil slicks in the Gulf. This morning, the Christian Science Monitor reports that BP and the Coast Guard have agreed “to allow wildlife rescuers to pluck sea turtles out of corralled oil patches to keep them from being incinerated alive,” and in return the environmental groups have withdrawn their request to enjoin all controlled burning. The Monitor also reports that due to bad weather controlled burns have been halted until at least Tuesday.
Another suit against BP may be filed in a few weeks. The ESA’s citizen suit provision requires that citizen plaintiffs notify the United States and prospective defendants of their intent to sue at least 60 days before actually filing suit. On May 25, Defenders of Wildlife and the Southern Environmental Law Center sent BP a Notice of Intent to Sue based on “take” of listed species by the Gulf spill.
Full textIn an op-ed in this morning's Raleigh News & Observer, CPR Member Scholar Victor Flatt describes why it is that BP was allowed to drill its Macondo 252 deepwater well -- the one that is now spewing oil into the Gulf -- without conducting a serious analysis of the risks of a blowout, and providing a detailed and realistic plan describing what it would do in such a scenario. Flatt writes:
The National Environmental Policy Act requires that federal agencies analyze the environmental risks before they agree to permit activity under their jurisdiction (like drilling and operating a deepwater oil well). We know that in the Deepwater Horizon case, the MMS [Minerals Management Service] approved the drilling and operating permits without undergoing full NEPA analysis, instead allowing the permitting under a NEPA exception known as a categorical exclusion, an exception to be used only when there are definitively no risks of impacts on the environment.... BP as well as all of other deepwater operators claimed that there was very little risk of a blowout, and that in case of one, they had the necessary tools (the blowout preventer systems) to stop anything bad from happening (which is how they got the categorical exclusion in the first place). And the MMS would have accepted this because it did not have independent resources to verify these analyses....
So how do we prevent this and other things like it from happening again? One easy step would be to make a simple regulatory change to NEPA so that in cases where there is any uncertainty about environmental impacts, the applicant must produce what is known as a "worst-case analysis." Then at least the MMS (and the public) would have understood and realized that if a blowout occurred and the blowout preventer systems failed, that there would likely be deaths, and that we had no way of immediately stopping the gushing of oil from causing severe environmental harm.
A worst-case analysis in the Deepwater Horizon permitting application might have prompted the MMS to examine how likely a blowout would be to occur, and ask for at least some changes based on that likelihood.
For more of what CPR's Member Scholars have been saying about the BP spill on the nation's op-ed pages, go here.
Full textCross-posted from Legal Planet.
The media have paid a lot of attention to the cavalier attitude of the former Minerals Management Service (now called the Bureau of Ocean Energy Management, Regulation, and Enforcement) toward the National Environmental Policy Act (I blogged about it here and here and Dan weighed in here). Less has been said, so far, about the Endangered Species Act. (One conspicuous exception is Keith Rizzardi’s ESA Blawg, which called on May 29 for a review of ESA implementation.)
As more oil nears shore, the impacts of the spill on sea life are becoming more obvious. The most recent report from the federal response team lists a total of 1240 oiled birds collected, 359 of them dead, 113 oiled sea turtles (11 dead), and 5 oiled marine mammals (3 dead). That’s undoubtedly only a small total of the affected wildlife, since many animals which encounter oil at sea will never be found.
And there’s clearly more trouble to come. The Washington Post reports that the Fish and Wildlife Service plans to collect the eggs of the threatened loggerhead sea turtle from nests along the Gulf Coast and move them to Florida’s east coast, a risky operation but one that seems necessary to save the hatchlings from swimming “to their certain doom” (according to David Godfrey, executive director of the Sea Turtle Conservancy) in oiled waters.
Full textCross-posted from The Pump Handle.
Cong. George Miller (D-CA) is a man of tough talk and swift action. Today, along with 15 other House members, he introduced H.R. 5663 a bill to upgrade provisions of our nation's key federal workplace health and safety laws. Every year, tens of thousands of workers are killed or made ill because of on-the-job hazards, and this year the toll of death made headline news. The Deepwater Horizon disaster and the Upper Big Branch mine explosion alone cut short the lives of 40 workers, with their coworkers' and families' lives changed forever.
H.R. 5663 will modernize whistleblower protections for workers who express concerns about safety and health, raise the maximum civil penalty amount that can be proposed by OSHA for serious, willful and repeat violations, and allow for criminal sanctions against employers who knowingly violate safety regulations that contributed to the death of a worker. Deb Koehler-Fergen, whose son Travis Koehler, 26, was killed while working for Boyd Gaming at the Orleans Hotel in Las Vegas enthusiastically endorsed the bill.
"Employers who put workers lives at risk should be held accountable for their actions, including much stiffer penalties and the possibility of jail time."Full text
Senate Bill 3516, introduced by Senators Bingaman and Murkowski in response to the BP oil spill to reform the Outer Continental Shelf Lands Act (OCSLA), proposes many intelligent and much-needed changes (the Energy & Natural Resources Committee will hold a hearing on the bill today). Among these, the legislation would imposea long-overdue mandate for best available technology for oil exploration and extraction, require that proponents of drilling evaluate the possibility of a well blowout and develop a response plan for a blowout, require a review of royalty and bonding requirements, and increase from 30 to 90 days the timeframe for the agency to review exploration plans, with an option for an extension if needed. The legislation would also significantly improve the structure of what was MMS (now the Bureau of Ocean Energy Management, Regulation and Enforcement) to separate incompatible functions, enhance the agency’s enforcement and investigative powers and its capacity to assess the environmental impacts and safety of proposed drilling operations, and build agency expertise in the technology and risks associated with OCS oil drilling through a research program. These are all very positive steps and a responsible response to the immediate crisis and the most patent problems with the OCSLA that this disaster has revealed.
These fixes would not be enough to get the job done, though. Perhaps it’s expecting too much of one bill, but the risk is that once Congress addresses reform of the OCSLA in a comprehensive bill like S.3516, there will almost certainly not be a second chance. That's just how lawmaking in response to disasters works.
The OCSLA was a statute in desperate need of updating and reform. There are fundamental shortcomings that remain untouched by S.3516 and that contributed to the outcome we face today: unprecedented, unimaginable, and incalculable damage to the natural resources in the Gulf of Mexico and the attendant devastating effects on the lives of people who depended on those resources.
Full textThe second segment of last night's Daily Show interview with David Axelrod featured a couple minutes on the broken regulatory system and questions of trust in government competence in the wake of the BP disaster.
Axelrod: "I think we've tested the proposition of what no regulation means, and what you get is .. the leak, the mine disaster in West Virginia, and you get an economic crisis."
Full textCross-posted from IntLawGrrls.
On Thursday Judge Martin Feldman of the U.S. District Court for the Eastern District of Louisiana refused to delay the effect of the preliminary injunction he issued on Tuesday, overturning the U.S. Department of Interior’s May 28, 2010, Temporary Moratorium on deepwater drilling. (Related court documents available here.)
Several facets of the June 22 decision are truly astonishing.
Nowhere in the decision is there any recognition of the unique, emergency circumstances or the grave threat to the public that the agency was seeking to combat. Nor did the judge pay much attention to the express and explicit congressional intention that offshore oil activities be suspended when necessary to protect against environmental threats. Instead he elevated the desire of private companies to continue their profitmaking activities over the health and safety of an entire region. His decision raises a vital question about where our defaults should be when faced with uncertain threats: should we err on the side of protecting the environment or on the side of protecting business? Judge Feldman clearly opted for the latter. It was a poor choice, but 
hopefully wiser heads will prevail, and the Moratorium, instituted in the wake of the Deepwater Horizon explosion (left) will be restored. (prior IntLawGrrls posts available here) (photo credit)
On purely legal terms, the decision was not a very good one.
Full textIs the Gulf of Mexico disaster a reason to pass climate legislation – or is that legislation largely irrelevant to curbing our oil use? A Greenwire article Tuesday quoted a number of economists arguing that the leading proposals in Congress wouldn’t do much to change our dependence on petroleum.
The only reasonable response is “yes, of course.” Climate proposals such as Kerry-Lieberman, Cantwell-Collins, or Waxman-Markey will have limited effects on oil consumption for two reasons: first, they are market mechanisms; second, they are weak market mechanisms.
To start with the good news, reducing carbon emissions from electric utilities is cheaper than reducing oil use. Any market mechanism is supposed to prompt us to do the cheapest things first; that’s the whole point. There are many ways to make electricity with lower carbon emissions than a coal plant; putting a price on carbon makes those alternatives cheaper relative to coal. There are also many ways to promote energy efficiency, incrementally reducing electricity use.
For most Americans, on the other hand, there is only one way to make transportation, and it runs on oil. In the short run, with all of us driving the cars we now own, there is very little chance to change our gasoline use. In the closing words of one of the best satirical videos about the oil spill, “BP: you’re not mad enough to not drive your car.”
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