When hoping for the best is official policy

Today's New York Times update on the Deepwater Horizon disaster opens with BP’s failed efforts to control the remaining two leaks via concrete, or remote control robots. Strangely, the article makes no mention of the missing remote shut-off valve called an acoustic switch. This $500,000 device might well have prevented this whole catastrophe. But, the United States does not require that deepwater oil rigs install an acoustic switch, and BP and Transocean decided to forego it. The United States considered requiring these switches in 2000, but Bush administration nixed the idea after industry pushback. My guess is that Vice President Cheney's secretive Energy Task Force had a hand in that, but since the Task Force operated entirely behind closed doors, we may never know the truth of how the United States made this ill-considered choice

Apparently, the Times does not consider the fact that this device, which is required in other major off-shore drilling countries, like Norway and Brazil, didn't make the company's cost-benefit cut, to be part of “all the news fit to print”.

With that critical piece of information missing, the Times tells us a tale of plucky engineers trying innovative solutions that, by gosh, just might work. The article is full of solemn quotes like "as so many other response efforts so far have shown, engineering problems that can be solved on the ground can prove perilously stubborn 5,000 feet underwater." The coverage has a "Gee, who could have guessed" quality that is extremely disturbing.
It is no surprise that things are different 5000 feet down. The concern that those differences would make it virtually impossible to respond to an oil spill is what has driven environmental opposition to this kind of drilling in the first place.

What is glaringly obvious is that BP, federal regulators and the rest of the oil industry should have thought this through before--there should already be a plan for what to do when there is a blow out that is pumping 210,000 gallons a day of oil is contaminating some the nation's most valuable and fragile ecosystems. It is really very simple. A worst-case scenario analysis, and a plan to deal with it, should be part of every regulatory approval process. That way, we get drilling only when (and if) it can be done safely--with plans in place to deal with obvious possiblities like blow outs and leaks. The Clean Air Act already requires this kind of analysis as part of the regulatory approval process. EPA used to routinely require a worst-case scenario analysis, but the Reagan Administration "got government off our backs" by eliminating the worst-case scenario analysis. And the Supreme Court let them.

We might have had sober analysis and careful planning. Instead, BP's response to its catastrophic oil spill is taking on the quality of a Judy Garland/ Mickey Rooney movie: "hey my dad has some new technology, lets try to stop an oil spill."

Cophenhagen by Way of Washington

Today begins the fifteenth conference of parties to the 1992 Framework Convention on Climate Change. Representatives from almost two hundred nations have gathered in Copenhagen for two weeks of intense negotiation as they seek a consensus on an international strategy for fighting global warming.

As the world focuses on Copenhagen, and amid high hopes that the world's leaders will develop a plan for confronting global warming, the United States EPA added its bit to the conversation. Today, the EPA announced that it had concluded that “greenhouse gas (GHG) emissions threaten the public health and welfare of the American people.” This critical ruling paves the way for EPA to regulate GHG emissions under the Clean Air Act—which means that, should Congress fail to pass new legislation dealing directly with climate change, the United States will still have a means (albeit less than ideal) by which to meet the GHG reduction commitments it makes in Copenhagen.

The Bush administration fought to prevent this result, stone-walling on the question until the United States Supreme Court forced the Bush EPA to confront it. Indeed, the Bush administration even went so far as to deliberately alter scientific reports in order to suggest that there was still doubt about whether the world was experiencing anthropogenically-induced climate change. Thankfully, those bad old days of the White House manipulating climate change science in order to mislead policymakers and the public about the dangers of global warming are over. As the right-wing blogosphere tries to use the recently hacked emails to try to foment doubt about the science of climate change, it is worth remembering who has really been manipulating the data to political ends ( and it is not those reporting the overwhelming global scientific consensus that it is happening.)

The evidence is clear and overwhelming. As a result of human activities, GHG concentrations in the atmosphere are at record high levels. The Earth has been warming over the past 100 years, with the steepest increase in warming in recent decades. Melting ice in the Arctic, the Antarctic, Greenland and disappearing glaciers around the world, bear this out. Among the more frightening consequences are increased ocean temperature and acidification, rising sea levels, changing precipitation patterns, and the dramatic effects on ecosystems and wildlife.

The United States is the second-highest emitter of greenhouse gas emissions, and the largest per-capita emitter. Its absence from climate change discussion over the last eight years have been keenly felt. Although long overdue, let’s hope EPA Administrator Lisa P. Jackson is right when she described this announcement as

“cement[ing] 2009’s place in history as the year when the United States Government began addressing the challenge of greenhouse-gas pollution and seizing the opportunity of clean-energy reform.”

EPA grants California's Clean Air Act waiver

From the press release issued by the U.S. Environmental Protection Agency:

EPA is granting California’s waiver request enabling the state to enforce its greenhouse gas emissions standards for new motor vehicles, beginning with the current model year. Using the law and science as its guide, EPA has taken this action to tackle air pollution and protect human health.

“This decision puts the law and science first. After review of the scientific findings, and another comprehensive round of public engagement, I have decided this is the appropriate course under the law,” said EPA Administrator Lisa P. Jackson [left]. “This waiver is consistent with the Clean Air Act as it’s been used for the last 40 years and supports the prerogatives of the 13 states and the District of Columbia who have opted to follow California’s lead. More importantly, this decision reinforces the historic agreement on nationwide emissions standards developed by a broad coalition of industry, government and environmental stakeholders earlier this year.”

Although this resolution of the waiver dispute was expected and has a somewhat limited impact as the Obama administration brings federal standards in line with California ones, the dispute itself highlighted complex federalism issues at the heart of the Clean Air Act and efforts to regulate climate change. (Prior IntLawGrrls posts on California and climate change here, here, here, and here.) I have written about the dynamics of the waiver dispute as an example of what I term diagonal regulation (cross-cutting efforts that are simultaneously horizontal and vertical), and am currently working on an article attempting to operationalize the concept of diagonal regulation and explore its implications for the Obama administration through an in-depth analysis of motor vehicles emissions regulation.

(Cross-posted at Teaching Climate Change Law & Policy blog)

California Greenhouse Gas Waiver

The New York Times reports that Obama is poised to grant California's waiver under the Clean Air Act that will allow it to regulate motor vehicle emissions more stringently than the federal government does. This action will have a major impact because at least thirteen other states plan to follow California's standards if the waiver is granted. The Obama campaign had said that they would take this action, and this announcement will be part of a number of environmental actions planned for Monday. As I have analyzed in depth in a forthcoming article, the California waiver dispute provides an interesting example of the battles over the scale of climate regulation and the diagonal regulatory role that climate change litigation can play.