Cross-posted from Legal Planet.
As already noted by Rick and Megan, last week BP pleaded guilty to 14 criminal counts arising from the 2010 Deepwater Horizon blowout in the Gulf of Mexico. Megan provided a good basic overview of the terms of the agreement. Here is the plea agreement itself. The amount of money BP has agreed to pay, in criminal fines and additional payments, has been the focus of most of the news coverage so far. The terms of BP’s probation have gotten less attention, but are well worth exploring.
Of course the amount of the fines and other payments matters. Never having had the experience of negotiating a plea agreement like this, I’m reluctant to speculate on whether the government could have gotten more out of BP. It’s too early to evaluate whether the punishment fits the offense, since civil sanctions and natural resource damages remain to be determined. The plea agreement specifies that the payments it requires do not affect its liability for civil claims or natural resource damages.
I was struck by the scope of the fines for the environmental offenses relative to the others. BP agreed to pay the maximum possible fine for each of the 11 manslaughter counts and the obstruction of Congress count. Together, the agreed fine for those counts totals $6 million, a tiny fraction of the total criminal fines. BP will pay another $100 million for violating the Migratory Bird Treaty Act, and a whopping (at least relatively speaking) $1.15 billion for violating the Clean Water Act.
Full textThis post is based on an article I wrote with Anne Havemann entitled “Too Big to Obey: Why BP Should Be Debarred,” published in the William & Mary Environmental Law & Policy Review.
Attorney General Eric Holder and his lead prosecutor, Lanny Breuer, are deservedly running a victory lap in the immediate aftermath of their criminal settlement with BP. The amount of money paid to settle the charges, $4.5 billion—is considerably larger than anything paid by past bad actors, although it represents just a few months of profit for the company. In addition, the two top supervisors on duty at the rig when it exploded will be prosecuted for manslaughter, sending the message that line managers put their futures on the line when they worry more about sparing costs for the company than the safety of their workers. But even these tough remedies fall far short of the “nuclear option” that should be invoked in this case: the permanent debarment of BP from ever doing business with the U.S. government.
Despite a shocking history of chronic law violations stretching a couple decades in this country—including an explosion at its Texas City refinery in 2005 that killed 15 workers--BP remains the Pentagon’s largest supplier of jet and vehicle fuel, with government contracts valued at more than $2 billion. In theory, at least, the United States only does business with “responsible” companies and, as I’ll explain further in a moment, BP is the corporate embodiment of irresponsibility, even if we ignore the catastrophe that happened in the Gulf. Yet any suggestion that the company should be debarred by the Department of Defense (DOD)--the government’s biggest spender--is summarily dismissed by observers who seem convinced that debarring BP would leave the Pentagon with nobody to sell it fuel.
Some statutes, including the Clean Air and Clean Water Acts, provide for immediate suspension for government contractors found guilty of violating their provisions. Unfortunately, however, the suspension is only applicable to the facility where the violation took place. The drilling rig that exploded is obviously no longer in existence.
Full textInternal EPA emails obtained by CPR though a FOIA request reveals that representatives from one or more of the EPA’s peer agencies second-guessed a critical scientific finding undergirding the EPA’s then-pending draft final rule to tighten the ozone standard, claiming that ozone is not associated with mortality impacts. The EPA’s final proposal rightly disregarded the unsound comments and included information on how reducing ozone pollution saves lives. The rule, estimated to save thousands of lives, was later blocked by the White House. The email provides a rare glimpse at how peer agencies abuse the interagency commenting process by attacking other agencies’ rules—often on matters on which they have comparatively little expertise.
In the August 3, 2011, email, sent while the draft final rule was still undergoing review at the White House Office of Information and Regulatory Affairs (OIRA), Karen Martin, an EPA scientist who was working on the rule, provided her colleagues her initial impressions on the interagency comments regarding the rule, which OIRA had just recently forwarded to the EPA. Martin noted that some commenters, un-named staff from one of the EPA’s peer agencies, questioned the EPA’s assumption that higher ozone levels contribute to premature deaths. Martin directly quoted a “set of commenters” who recommended that “EPA remove the assumption that ozone is associated with mortality impacts.” The interagency comments themselves are not available publicly and were not included in the batch of documents sent by EPA in response to CPR's FOIA request.
While technical-sounding, the assumption about the relationship between elevated ozone levels and premature deaths formed a critical part of the agency’s regulatory impact analysis for the rule. (The draft final analysis, which was the subject of the interagency complaints, is available here.) In the regulatory impact analysis, the agency explains that it included this assumption at the recommendation of the National Academy of Science (see page 3). The monetized benefits of preventing ozone-related mortality was to be the second largest source of the rule’s benefits (see page 34); thus, the failure to include these benefits would serve only to distort the rule’s cost-benefit analysis more. (As practiced, several inherent methodological flaws lead cost-benefit analysis to over-count costs while under-counting benefits, rendering it systematically biased against protective regulations.)
Full textCross-posted from Legal Planet.
Today’s FEMA is a lot different from the organization that flubbed the Katrina response. There have been a number of positive changes, mostly during the past four years.
First, as the Washington Post explains, FEMA’s authority has expanded:
Congress has broadened FEMA’s authority so that the agency can respond in advance of major storms, instead of waiting for governors to request federal aid after a disaster strikes. The measures earned plaudits from then-Gov. Haley Barbour (R) of Mississippi and Gov. Bobby Jindal (R) of Louisiana — usually tough Obama critics — and professional emergency managers who had sought the changes for years.
Second, unlike the hapless “Brownie” who headed FEMA during Katrina, the current director is an experienced professional. W. Craig Fugate was the head of the highly regarded Florida emergency response agency under Governor Jeb Bush. Fugate began his career as a firefighter, then became head of emergency management in Gainesville, Florida, before going to work for Bush. He knows what he’s doing.
Full textCross-posted from Legal Planet.
The federal role in disaster response dates back to the 1906 San Francisco earthquake, when General Funston sent troops from the Presidio to deal with the city’s desperate emergency. Governor Romney seems dubious about this century-old federal role. During one of the GOP primary debates, Governor Romney was asked what he thought about the idea of transferring FEMA’s responsibilities to the states. This is what he said:
Absolutely. Every time you have an occasion to take something from the federal government and send it back to the states, that’s the right direction. And if you can go even further, and send it back to the private sector, that’s even better. Instead of thinking, in the federal budget, what we should cut, we should ask the opposite question, what should we keep?
John King, the moderator, then asked, “Including disaster relief, though?” Romney responded:”We cannot — we cannot afford to do those things without jeopardizing the future for our kids.”
Perhaps explaining why the federal government should be involved in disaster relief is unnecessary, but just for the record, here are several reasons:
Full textHere’s a final compilation of our posts on the Clean Water Act at 40:
The Coalition for Sensible Safeguards has put together more links to commentary on the anniversary from around the web.
Full textThe Clean Water Act turns 40 today. One of the remarkable things about those four decades is the extent to which the Act has largely withstood repeated attempts by industry to water down its technology-based standard-setting provisions with cost-benefit analysis. Just three years ago, when the U.S. Supreme Court decided Entergy Corp. v. Riverkeeper, environmentalists largely lost one skirmish in this ongoing war, but the legacy of that opinion may actually be less harmful to the statute’s ability to protect clean water than appears at first blush. Understanding all that requires going back to the origins of the Act.
It’s not that there wasn’t a federal statute aimed at preventing water pollution back before 1972. It’s just that the old statute wasn’t working. A key problem was that the old statute set standards based on the water quality of a river or lake as a whole. This was difficult and cumbersome and made enforcement virtually impossible, because one polluter could always point the finger at another discharging into the same river in order to evade responsibility. The big innovation of the Clean Water Act of 1972 was to vastly simplify the standard setting and enforcement process by saying to polluters, “regardless of what others are doing, you must reduce the pollution levels coming out of your discharge pipe as much as is technologically feasible.” These technology-based standards were far easier to implement and enforce, and the result was a dramatic improvement in water quality throughout the nation’s rivers, lakes and streams in subsequent decades.
Industry fought these standards almost from the beginning, and one of their stock arguments was always that pollution standards should be set by a cost-benefit analysis rather than on the basis of the best technology available. Industry figured, correctly, that requiring EPA to prove that the environmental benefits of a given pollution standard outweighed its costs would bog the agency down in endless calculation and analysis and give industry lots of opportunities to delay and challenge rules and permits. Technology-based standards already take costs into account, because EPA and the courts have always interpreted the determination of whether a technology is feasible or “available” as including an estimation of the technology’s economic feasibility. But requiring the agency to specifically prove that the costs did not outweigh the monetized benefits of a standard would mire them down in exactly the kinds of cumbersome evaluations of overall water quality that Congress sought to avoid by enacting technology based standards in the first place.
Full textLast week I visited a dairy farm with my two year-old son. Complete with hayrides, homemade ice cream, cows mooing, and a bluegrass band, the fall festival provided us with some good, wholesome entertainment. My son giggled as the baby cows licked his hand, oohed and awed at the fluffy baby chicks, and, of course, consumed the decadent ice cream as if I had not fed him in weeks.
It was a memorable scene for us city-dwellers, but as my son climbed over hay bails and pretended to drive a tractor, I found myself longing for the ignorance of childhood. Because as he moved from one gleeful experience to the other, questions filled my mind as I took in each detail of the land and farming process. As I listened to the tour leader describe the careful separation of sick and antibiotic-treated cows during the milking process, I was unsatisfied with the mere assurances of this milk being separated from the milk bound for the grocers’ shelves or front doorsteps. I wanted to know, where did the “bad” milk go—down the drain? Driving past the chicken barn and cow fields and breathing in the air, pungent with what can only be described as “that farm smell,” made me wonder if they were taking appropriate measures to prevent contamination of surrounding streams, rivers, and even groundwater.
As I voiced some of these questions to my spouse and friends whose children also romped through the pastoral scene, most of them looked at me as if I was crazy and incapable of enjoying myself. “I’m sure a farm like this follows the rules. You worry too much,” my friend said. Again, a part of me wished for ignorance—in this case, my friend’s. In this farm’s defense, they at least appeared to be taking the initiative on many sustainable energy and soil conservation practices, but this was most likely not because of the rules or laws, especially when it came to water pollution.
Full textThis post was written by CPR Member Scholars Robert Glicksman and Sandra Zellmer.
Visual images of burning rivers, oil-soaked seagulls, and other grossly contaminated resources spurred the enactment of the nation’s foundational environmental laws in the 1970s, including the Clean Water Act (CWA). Similarly, evocative prose like Rachel Carson’s description of the “strange blight” poisoning America’s wildlife due to widespread use of pesticides played a critical role in alerting policymakers and the public to the need for robust legal protections for public health and the environment.
Environmental law, however, has always been about more than just repairing the damage wrought by past disasters or resource mismanagement. Senator Edmund Muskie, the principal sponsor of the CWA, was moved to action not only by the despoliation he witnessed but also by “[t]he beauties of nature . . . in almost pristine form” he marveled at while growing up.
Antidegradation Goals
The reasons to mandate the improvement of inferior quality natural resources are relatively obvious, and include ensuring that exposure to, or use of, those resources does not adversely affect human health, destroy critical wildlife or fish populations, or otherwise disrupt ecosystem functions. By contrast, no single goal explains legal mandates to prevent degradation of superior quality resources. Instead, antidegradation programs in the CWA and in other environmental laws rest on a variety of rationales, including the desire to protect special or unique resources, to provide a margin of safety to offset the risk that regulations will not provide enough protection due to imperfect knowledge or flawed regulatory implementation, to prevent the movement of industry to areas with superior environmental quality but more lenient requirements, to prevent interstate pollution, and to preserve opportunities for future generations and future growth.
Full textCongress adopted the “modern” version of the Federal Water Pollution Control Act, more commonly known as the “Clean Water Act,” forty years ago this week (Pub. L. No. 92-500, Oct. 18, 1972). As Congress faces persistent efforts to weaken this law, it is important to take stock of why the law was passed, how well we have met its goals and objectives, and how much is left to accomplish.
In the current anti-regulatory climate, it is easy to fall prey to “collective societal amnesia” about the severe problems that caused Congress to pass this historic legislation. At the time, the United States faced water pollution problems of crisis proportions. Nearly a third of U.S. drinking water supplies exceeded Public Health Service limits. The Food and Drug Administration and the Bureau of Sport Fisheries found unsafe levels of mercury, pesticides, and other toxic pollutants in the majority of fish sampled. The Hudson River had bacteria levels 170 times over safe limits. In 1969, over 41 million fish were killed in reported incidents alone. And in perhaps the most public and dramatic catalyst for action, on June 22, 1969 the Cuyahoga River caught fire, fueled by oil and industrial waste discharges (for more on this history, see The Clean Water Act: 20 Years Later, which I co-authored with Jessica C. Landman and Diane Cameron).
In response to these severe problems, Congress adopted one of the most aspirational of all environmental statutes, with an overarching objective “to restore and maintain the chemical, physical and biological integrity of the Nation’s waters.” Congress also set subsidiary but equally ambitious statutory goals to eliminate all discharges of pollutants into the nation’s waters by 1985 (the so-called “zero discharge” goal), and to achieve levels of water quality sufficient to protect fish and other aquatic life and to allow for safe public recreation in and on the water (the so-called “fishable and swimmable” goal) by 1983.
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