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Gulf Disaster
The New York Times, September 17, 2010

Enviro Groups Ignored Gulf Before BP Disaster
By Mike Soraghan, Greenwire

Since the fiery sinking of the Deepwater Horizon rig last spring, environmentalists have scolded federal regulators for neglecting problems with offshore drilling in the Gulf of Mexico.

They were right. But environmental groups ignored the Gulf, too.

Focused on climate change and watch-dogging drilling in Alaskan waters, environmentalists were wary of upsetting a détente that blocked oil production on both coasts and the eastern Gulf of Mexico. They had ceded the drilling zone off Alabama, Louisiana and Texas as hostile territory.

"The Gulf of Mexico was pretty much written off as a sacrifice zone," said Kieran Suckling, head of one of the country's most aggressive environmental litigants, the Center for Biological Diversity. "The focus was put on more pristine areas."

That focus can be seen in the number of lawsuits filed by environmentalists and others under the National Environmental Policy Act, or NEPA. In the eight years that George W. Bush was president, they filed suit against federal agencies more than 1,000 times.

But only one lawsuit was filed by an environmental group involving oil and gas production in the Gulf.

So, regulators at what was then the Minerals Management Service had little to fear if they rubber-stamped oil companies' plans, even if they included claims that now seem ridiculous. Lawsuits are sometimes the only way to ferret out and fix problems in the government's voluminous environmental plans.

"That's one component of accountability," David Bernhardt, who contended with many of those NEPA lawsuits as solicitor at the Interior Department under Bush. "There was a failure to carefully review these documents. That's because no one was challenging their decisions."

That could be one reason the Interior Department had never assigned lawyers to New Orleans, home to an MMS regional office.

"The closest lawyers were working in D.C.," said Bernhardt, who now works in the Washington office of Brownstein Hyatt Farber Schreck. "I believe the regional office made many decisions without any legal review."

Bernhardt's point is backed up by the Congressional Research Service. In a carefully worded August report (pdf) looking back on the spill, CRS indicated a lawsuit challenging a 2007 MMS environmental analysis might have highlighted how unprepared industry was for a large spill.

"A court could consider the adequacy of not reviewing the environmental effects of spills over 10,000 [barrels] when MMS calculated a greater than 99 percent probability that such a spill would occur," CRS lawyer Kristina Alexander wrote.

BP and other companies promised they had the resources to clean up any spill (Greenwire, June 2). They asserted that deepwater drilling had little or no environmental effect or listed walruses as a local species (Greenwire, June 30). None of that was true. But a court never "considered the adequacy" of those claims. Neither did anyone else, until the Macondo well blew.

BLM, Forest Service awash in lawsuits

In total, three NEPA suits were filed against MMS from 2001 to 2008, according to a Greenwire analysis of data from the White House Council on Environmental Quality. In the wake of the spill, MMS has been changed to the Bureau of Ocean Energy Management, Regulation and Enforcement.

Court records indicate one was filed by the state of Louisiana about Gulf drilling, and another challenged drilling off Alaska's North Slope.

The environmentalist suit that challenged drilling in the Gulf was filed in 2007 by the Center for Biological Diversity and other groups. It challenged the Bush administration's five-year plan for offshore drilling in the Gulf and Alaska. But even that suit focused on greenhouse gas emissions and plans to drill off Alaska more than oil spills in the Gulf.

By contrast, the Forest Service was sued 388 times under NEPA during the same period, spurring the agency's leaders to complain of "paralysis by analysis" and ask Congress for new exemptions to the law. The 126 NEPA lawsuits filed against the Bureau of Land Management had oil and gas producers complaining that environmentalists were "locking up the land." Environmental groups said they had to go to court to preserve uses of public land other than drilling, logging and mining.

Environmental leaders say there are many reasons they were not challenging drilling off the Gulf Coast. Their explanation boils down to this: The oil-soaked Gulf region is a legal no-man's land for environmentalists. The Gulf is already teeming with oil and gas rigs, and it has no local constituency ready to fight drilling.

Even industry-friendly states such as Alaska and Wyoming, they say, have a small but fierce core of locals willing to fight to keep oil and gas wells out of their wild land. Preservation efforts in places like Louisiana generally involve protecting or rebuilding marshes, they say, not chipping away at a pillar of the local economy.

And activists say the legal deck is stacked in favor of offshore drillers in the Gulf. Federal law allows 30 days to challenge a lease sale in the Gulf, versus six years for a forest plan. And, unlike drilling elsewhere, challenges are routed past trial courts to the 5th U.S. Circuit Court of Appeals, a court much less likely to block drilling with restraining orders.

In addition, said one Gulf litigator, "All the lawyers in those cities who become judges are from the oil business."

Nature groups chose instead to fight industry incursions into unspoiled areas like Alaska's Bristol Bay, Montana's Rocky Mountain Front and the Gulf Coast of Florida.

Still, Suckling said he was shocked as his legal team dug into MMS records after the spill.

"In Alaska, MMS at least made an effort to enforce the law," he said. "We assumed that was the case everywhere. I can't even describe how blown away I was."

Enviro groups' lawyers head to Gulf

The inattention of national environmental groups has not gone unnoticed by Gulf Coast politicians.

In a recent speech at the National Press Club, New Orleans Mayor Mitch Landrieu upbraided "national environmental groups," who he said "cluster on the East and West coasts." They have abandoned the Gulf Coast, he said, and the naturalists who live there.

"National environmental groups, in my opinion, have kind of skirted past Louisiana because, I've heard it said before, 'They kind of deserved what they got because they like the oil companies so much,'" Landrieu said. "It doesn't work anymore. We have to change."

What is changing is the free passes the petroleum industry and Interior Department regulators got from environmental lawyers for decades.

Since the spill, the Center for Biological Diversity alone has filed seven environmental lawsuits, and the number of people working on Gulf drilling legal issues there has risen from zero to six. The BP spill has spawned more than 300 civil lawsuits in the four Gulf states (Greenwire, July 7).

That kind of legal scrutiny, Suckling said, will inevitably slow down and limit oil production in the Gulf.

"Had the environmental movement gone after oil drilling in the Gulf of Mexico in the '80s and '90s," Suckling said, "we'd be living in a very different world."

Copyright 2010 E&E Publishing.

Photo © Paul S. Hamilton