The dis­as­trous failure, which is spewing thou­sands of bar­rels of oil each day into the Gulf of Mexico, has raised many ques­tions about fed­eral over­sight of the oil industry. One emer­gency mea­sure after another has failed to stop the flow, and even if the latest con­trol efforts suc­ceed, the Gulf and its coast­line will suffer unprece­dented eco­log­ical and eco­nomic harm. Lee Breck­en­ridge, asso­ciate dean and pro­fessor at Northeastern’s School of Law, answers ques­tions about the long-​​term legal and envi­ron­mental effects of such a large-​​scale spill.

Why weren’t U.S. laws strict enough to pre­vent this oil spill?
The United States actu­ally has many strong laws to reg­u­late the industry and deal with oil spills. Fed­eral law, which was greatly strength­ened after the Exxon Valdez and Santa Bar­bara oil spills, requires careful envi­ron­mental assess­ment and plan­ning, con­trol of oil dis­charges in water and wet­lands and spe­cial pro­tec­tion of marine mam­mals and other des­ig­nated species. Existing legal require­ments, if prop­erly fol­lowed and enforced, ought to have pre­vented a cat­a­strophe like this.

What went wrong?
Fail­ures in the reg­u­la­tory review of BP’s plans may be partly to blame. Even though the U.S. Min­erals Man­age­ment Ser­vice has the power to insist on safe­guards and lim­i­ta­tions on off­shore oil drilling, BP appar­ently avoided close scrutiny and took advan­tage of lax agency reviews and exemp­tions. BP cal­cu­lated a “worst-​​case sce­nario” even larger than most experts’ pro­jec­tions for the actual spill, as reg­u­la­tions required, but BP then gained per­mis­sion to go ahead with drilling without gen­uinely preparing for the risk of a mas­sive spill in deep water.
Seem­ingly, no one in a posi­tion of authority took the worst-​​case sce­nario seri­ously enough to address the con­se­quences or con­sider the alter­na­tives. There may also have been impor­tant vio­la­tions of legal require­ments during BP’s oper­a­tions, both before and after the explo­sion on the rig. Such details should become clearer as cur­rent inves­ti­ga­tions get under way.

The U.S. Depart­ment of the Inte­rior is set to restruc­ture the off­shore drilling reg­u­la­tory agency, sep­a­rating safety and envi­ron­mental enforce­ment activ­i­ties of the Min­erals Man­age­ment Ser­vice from those relating to rev­enue gen­er­a­tion and col­lec­tion. Why was this deci­sion made?
The main pur­pose of the restruc­turing plan is to reduce the appear­ance of a con­flict of interest and to pro­tect public employees who eval­uate and reg­u­late envi­ron­mental risks from being pres­sured or biased toward allowing com­mer­cial activ­i­ties. Fed­eral agen­cies’ leasing of fed­eral public lands — national forests and grazing lands, as well as sub­merged lands on the Outer Con­ti­nental Shelf — has always cre­ated dif­fi­cult ten­sions between the goals of eco­nomic devel­op­ment and fed­eral respon­si­bil­i­ties to pro­tect the envi­ron­ment.
Oil and gas oper­a­tions pose espe­cially dif­fi­cult prob­lems for effec­tive envi­ron­mental over­sight because of the high eco­nomic value of the resources, the per­va­sive polit­ical influ­ence of the petro­leum industry and the enor­mous rev­enues gen­er­ated for public and pri­vate cof­fers alike.

Will this reor­ga­ni­za­tion be ben­e­fi­cial?
An agency restruc­turing might help, but simply reor­ga­nizing the staff is unlikely to do enough. Strong lead­er­ship, explicit com­mit­ments to upholding the intent of envi­ron­mental laws and ade­quate funding and staffing sup­port for envi­ron­mental assess­ments and other science-​​based work will be crit­ical to bringing leasing prac­tices into line with sound envi­ron­mental policy.

What legal actions and changes are we likely to see in response to this oil spill?
Even if BP is not at fault, it will have to pay the costs of cleaning up the oil, restoring the aquatic habitat and mit­i­gating envi­ron­mental harm. But lit­i­ga­tion over poten­tial crim­inal claims, as well as the amounts of civil penal­ties and dam­ages owed to fed­eral, state and pri­vate par­ties could easily last for decades.
We can also expect to see new leg­isla­tive pro­posals imposing more safe­guards on drilling prac­tices, raising penal­ties for non­com­pli­ance and increasing the penal­ties that com­pa­nies must pay for eco­nomic and eco­log­ical harm.

Are cur­rent poli­cies on the exploita­tion of fossil fuel resources effec­tive in bal­ancing the need for eco­nomic growth with the goal of eco­log­ical pro­tec­tion?
The United States has made great strides in con­trol­ling indus­trial pol­lu­tion, but U.S. laws and poli­cies remain woe­fully inad­e­quate to ensure the sus­tain­able and eco­log­i­cally wise devel­op­ment of energy resources.
The failure to limit green­house gas emis­sions and address the dan­gers of global cli­mate change, in par­tic­ular, is a matter of grave con­cern. Will the crisis in the Gulf only divert leg­is­la­tors’ atten­tion from these looming climate-​​change issues, or will they spur gen­uine efforts to reform national energy policy? One can only hope that con­tro­ver­sies over the oil spill will boost rather than derail ini­tia­tives to reduce the national depen­dence on fossil fuels and develop alter­na­tive sources of energy.