We've Known the Risks in the Gulf for Forty Years

by Daniel Farber

June 01, 2010

Cross-posted from Legal Planet.

We’ve known all along that offshore drilling in the Gulf placed at risk exceptionally valuable and sensitive coastal areas.  We need look no further than a forty-year-old court decision on Gulf oil drilling, which made the dangers abundantly clear.

In 1971, President Nixon announced a new energy plan involving greatly expanded offshore drilling.  In a landmark early NEPA decision, the D.C. Circuit held that the environmental impact statement gave insufficient consideration to alternative energy strategies.  The opinion begins with a discussion of the risks of oil spills, drawn largely from the EIS.  The language is startlingly relevant today:

Adjacent to the proposed lease area is the greatest estuarine coastal marsh complex in the United States, some 7.9 million acres, providing food, nursery habitat and spawning ground vital to fish, shellfish and wildlife, as well as food and shelter for migratory waterfowl, wading birds and fur-bearing animals. This complex provides rich nutrient systems which make the Gulf of Mexico, blessed also with warm waters and shallow depths, the most productive fishing region of the country. . . .

The coastal regions of Louisiana and Mississippi contain millions of acres suitable for outdoor recreation, with a number of state and federal recreation areas, and extensive beach shorelines (397 miles for Louisiana, and 100 miles for Mississippi). These serve millions . . .

Oil pollution is the problem most extensively discussed in the Statement and its exposition of unavoidable adverse environmental effects. The Statement acknowledges that both short and long term effects on the environment can be expected from spillage, including in that term major spills (like that in the Santa Barbara Channel in 1969); minor spills from operations and unidentified sources; and discharge of waste water contaminated with oil.

These adverse effects relate both to the damage to the coastal region-beaches, water areas and historic sites; and the forecast that oil pollution “may seriously damage the marine biological community”-both direct damage to the larger organisms, visible more easily and sooner, and to smaller life stages which would lead one step removed to damage later in the food chain.

The Statement noted the diverse conclusions and comments in existing reports on oil spills, some minimizing damage done, others stressing that oil spillage has effects beyond the period of visible evidence; that oil may mix with water, especially in a turbulent sea, and disperse downward into the sea; that emulsifiers used to remove surface oil may have toxic consequences, etc.

The Statement asserted that while past major spills in the Gulf resulted in minimal damage, this was due to a fortunate combination of offshore winds and surface currents.

You can’t say we weren’t warned.

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Daniel A. Farber is the Sho Sato Professor of Law, Director of the California Center for Environmental Law and Policy, and Chair, Energy & Resources Group, University of California, Berkeley.

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