Oil Disaster Shows Need for Endangered Species

Of the many regulatory problems that helped make the Gulf of Mexico oil disaster possible, the Endangered Species Act’s shortcomings have received little attention — but fixing its flaws and loopholes could help prevent future catastrophes.

Oil companies never considered the impacts of a massive spill on the Gulf’s sperm whales or five sea turtle species. They didn’t have to, because the law doesn’t require it.

“We need to include disaster planning in the Endangered Species Act consultation process,” said environmental lawyer Keith Rizzardi. “We can learn from experience.”

So far, critics have focused on the Minerals Management Service’s evasion of National Environmental Policy Act, which requires federal agencies to evaluate environmental impacts when making decisions. The MMS essentially operated in collusion with the oil industry in what one federal investigator called “a culture of ethical failure,” allowing drilling to proceed without NEPA review. Those approvals have continued, with at least 19 environmental waivers granted since the April 20 explosion.

The MMS also ignored the Endangered Species Act, which demands consideration of impacts on endangered species. Since January 2009, the MMS has approved 346 drilling plans without getting required permits — but even if they’d followed the Act’s letter, it probably wouldn’t have mattered.

Reviews would only have considered the physical footprints of wells, ship traffic and other relatively small impacts. That’s because the Endangered Species Act only requires consideration of events that are “reasonably certain to occur.” That a wellhead would blow — as happened 36 times in the Gulf between 1992 and 2006 — and release a steady stream of oil was not so far-fetched as the industry insisted, but it wasn’t reasonably certain.

Rizzardi intends to discuss changes to the Act at the next meeting of the National Oceanic and Atmospheric Administration’s Marine Fisheries Advisory Committee, of which he is a member. Congress has the ultimate responsibility for changing the law, which would be relatively easy, requiring little more than amendments to its wording. “It’s more a matter of politics than law,” said Penn State environmental law professor Jamison Colburn.

Environmental law specialist J.B. Ruhl of Florida State University said that planning for every conceivable disaster would be difficult, and that far-fetched possibilities might discourage legitimate development. But he agreed that considering catastrophic risk is “a valid question,” and Rizzardi said that amendments needn’t paralyze development, but would simply require foresight and planning.

In the event of disaster, agencies and companies could say, “We can’t guarantee that it won’t cause extinction — but we can do everything possible to mitigate the disaster,” said Rizzardi. “We don’t do any of that now.” The lack of planning has been painfully evident in the Gulf, where deployment of obvious, first-line relief measures — oil skimmers, containment structures, chemical dispersants — were logistically delayed and poorly understood. Had the Endangered Species Act demanded it, those plans might have been made.

In addition to considering catastrophes, the Endangered Species Act also needs to restrict what’s called segmented consultation, in which impacts are evaluated only in incremental blocks — over, say, the first few years of a project, rather than its expected lifetime. That makes it easy to avoid thinking about long-term problems.

“Incremental step consultation is most appropriate for long-term, multi-staged activities for which agency actions occur in discrete steps, such as the development of oil and gas resources on the Outer Continental Shelf,” reads the ESA now. “Segmentation into oblivion goes on all the time,” said Colburn.

But Colburn warned that amendments are only a first step. Endangered Species Act enforcement is woefully underfunded. Total federal spending on endangered species amounts to about $562 million, including what’s given to NOAA and the Fish and Wildlife Service, who are responsible for protecting the animals and evaluating plans submitted by other federal agencies.

Both NOAA and FWS are barely able to handle what’s already asked of them, and have more incentive to complete reviews and reduce backlog than to do their jobs right, said Colburn.

“Americans don’t want to spend more money for environmental protection, but they have to,” said Colburn. “If you want to have a market economy with agents like BP out there, you need to have well-funded environmental enforcement.”