The Odds of Failure
Cross posted from Legal Planet.
A couple of key observations about the oil rig blowout, based on my work on disaster issues.
First, “human error” is a cop-out when you’re dealing with major technology. It’s not like human fallibility is a surprise. Training, good management, and smart design should be the responses, not whining after the fact that the workers weren’t perfect. Or, if human error is unavoidable and the outcome would be catastrophic, you’d better rethink the project.
Second, it’s probably true that this was a very unlikely way for an oil rig to go wrong, but that doesn’t mean much. Suppose this was an eight-thousand-year event at any given oil rig. That is, you’d expect to have such an accident at that rig once in eight thousand years, or to put it another way, the odds in any given year at any given rig are 1 in 8000. You could imagine that the engineers might have thought that was pretty darn safe. (And not just engineers: in the Benzene case, the Supreme Court expressed uncertainty about whether a 1 in 1000 risk — nearly ten times greater — was significant enough to worry about.)
A one in eight thousand year accident sounds very remote, but it’s actually a recipe for disaster. As it happens, there are over 800 manned U.S. rigs in the Gulf. So you’d expect an “eight-thousand-year accident” to happen somewhere in the
A Great Case for Worst Case Analysis
Cross-posted from Legal Planet. The National Environmental Policy Act (NEPA) is the nation’s look-before-you-leap environmental law, intended to make sure that we understand what environmental problems we might result before we act. To that end, federal agencies must prepare an environmental impact statement (EIS) before they take, authorize, or provide funding for actions that may have significant adverse environmental impacts. Useful as NEPA analysis is, the Deepwater Horizon disaster vividly illustrates the need to fix one of its shortcomings. The
Recent Obama Administration Open Government Milestone; Tearing the Wall of Separation Between the American People and Their Government Isn't Easy
As the Obama Administration ought to know by now, open government isn't easy. There are a lot of constituent elements in the wall that separates the American people and their government. Getting open government right requires planning and dedication. Moreover, resource and legal constraints can thwart even the best-intentioned efforts by government agencies to operate in a more open fashion. Earlier this month, the Obama administration announced a number of new developments related to its Open Government Initiative, suggesting that the Administration
The Libertarian Case for Controlling Climate Change
Cross-posted from Legal Planet. Libertarians are, of course, deeply suspicious of government regulation. This may lead to a reflexive rejection of climate change mitigation. But Jonathan Adler, who provides a refreshingly distinctive view of environmental law from the Right, argues otherwise. In a forthcoming article (only the abstract is available on SSRN), he contends that libertarians are making a mistake in opposing climate mitigation: [E]ven if anthropogenic climate change is decidedly less than catastrophic – indeed, even if it
Inter-American Spotlight on the United States: Louisiana Residents Take Pollution Case to International Court
by Yee Huang | April 26, 2010
This is the April installment of CPRBlog’s series of posts highlighting legal developments in other countries and in international environmental law. Last month the New Orleans Times-Picayune reported that the Inter-American Commission on Human Rights (IACHR) granted a hearing to the residents of Mossville, Louisiana, based on their petition asserting that the U.S. government has violated their rights to privacy and racial equity by failing to address toxic pollution in their community. Advocates for Environmental Human Rights, the legal advocacy
Tenaska Deal Signals Sea-Change in Climate Change Regulation, but Itself May be Too Good to be True
On Monday, the Environmental Defense Fund announced that it had reached a settlement with Tenaska Inc. to withdraw opposition to that company’s proposed “Trailblazer Energy Center,” a 600 megawatt coal fired power plant in West Texas. In return for dropping its objections, the EDF signed an agreement with Tenaska that the company will sequester 85% of the CO2 it produces, selling much of the gas to companies who will use it for enhanced oil recovery (EOR) in the West Texas
Tyson Taken to Task: Oklahoma Jury Awards Poultry Growers $7.3 Million
by Yee Huang | April 22, 2010
Earlier this month an Oklahoma jury awarded $7.3 million to current and former poultry growers for fraud, negligence, and violations of a state consumer protection act committed by Tyson Foods, Inc. This verdict is not surprising as Tyson, like other major poultry processors, wields considerable economic clout in its relationship with poultry growers. This imbalanced relationship suggests that the “independent contractor” status of poultry growers that Tyson and other major poultry processors describe is a trick for the companies to
EPA's Rule on Lead Paint a Cause for Celebration, but Challenges Remain
Guest blogger Patrick MacRoy is Director of Community-Based Initiatives and RRP Training Program Manager for the National Center for Healthy Housing. He launched the first “train-the-trainer” program to help increase the supply of accredited RRP training providers and has been working on related policy issues. Today marks a major milestone in the century-long battle against childhood lead poisoning in the United States: the EPA will be officially implementing the Renovation, Repair, and Painting rule. Known as the RRP rule, the
Christopher Schroeder Confirmed to DOJ Post
Former CPR Member Scholar Christopher Schroeder was confirmed today by the Senate for his position as Assistant Attorney General for the Office of Legal Policy. Schroeder, most recently a professor at Duke University School of Law, was nominated for the post in May 2009.
Eye on OIRA: Sunstein Brings Behavioral Economics to NHTSA Tire Fuel Efficiency Program
On March 19, OIRA Administrator Cass Sunstein issued the office's first Review Letter of the Obama Administration, telling the National Highway Traffic Safety Administration (NHTSA) to redo their studies on how to design the labels for the agency’s new “Tire Fuel Efficiency Consumer Information Program.” (For background on Review Letters and the other types of OIRA letters, see here.) Those new studies will delay implementation of the tire efficiency regulation by at least half a year, and likely longer. Under
Food, Inc. Airs on PBS; Put Your Hands on the Table and Step Away from the Hamburger
The tagline that the producers of Food, Inc. are using to promote their Academy Award-winning documentary is “You’ll never look at dinner the same way.” They’re quite right. The film airs on many PBS stations this evening (and on others throughout the course of the next week). See for yourself. I came to it expecting that I’d end up feeling guilty about being part of the industry-consumer web that subjects farm animals to “nasty, brutish and short” lives, before slaughtering them for hamburger. I
Eye on OIRA: Is EPA About To Take a U-Turn on Coal Ash?
For the past 6 months, OIRA has hosted an all-out assault on EPA’s proposed coal ash waste rule, as a parade of representatives from King Coal and the coal ash reuse industry have walked in to attack any and every aspect of the hybrid approach the agency reportedly proposed. (Under the hybrid approach, EPA would regulate coal ash waste as a “hazardous” substance, unless it was dedicated to certain forms of beneficial use, in which case it would be regulated
Riding a New Wave: EPA Considers Dramatic Changes to CWA Enforcement
by Yee Huang | April 19, 2010
A recent Water Policy Report article reported that EPA is considering dramatic changes to its Clean Water Act enforcement and permitting program and oversight of state permitting programs. Many of the changes under consideration, including prioritizing the most significant pollution problems, strengthening oversight of states, and improving transparency and accountability, are long overdue. Passed in 1972, the CWA contains much of the authority needed to clean up water pollution from point sources and certain other sources, but strong enforcement is
Who Needs Regulation, Anyway?
The Competitive Enterprise Institute is upset with the way administrative law works. On Thursday they released their annual report on the costs of regulations. I hesitate to dignify it with pixels, but here goes. CEI has a problem with agency rulemaking altogether: Congress should answer for the compliance costs (and benefits) of federal regulations. Requiring expedited votes on economically significant or controversial agency rules before they become binding on the population would reestablish congressional accountability and would help fulfill the
Crane Safety Rule One Step Closer to Reality
As the Pump Handle noted earlier this week, OSHA submitted its draft final rule on construction cranes and derricks to OMB on Friday of last week. It’s good news that the process is now moving along. The cranes and derricks rule has been a long saga, and it was one of the case studies in our report last year on the costs of regulatory delay. By OSHA’s estimates, 89 people are killed and 263 are injured each year in construction
Lautenberg's TSCA Bill is Up; Initial Reactions From Advocates
Senator Frank Lautenberg today released the "Safe Chemicals Act of 2010 ” -- a bill to reform the Toxic Substances Control Act. Representatives Rush and Waxman released a discussion draft of related legislation in the House. Here are reactions from Environmental Defense Fund, Environmental Working Group, Natural Resources Defence Council, and Safer Chemicals, Healthy Familes coalition. We'll have more on this in the coming days.
Mind the Climate Gap: New Study Highlights the Need to Design GHG Cap-and-Trade Policies to Improve Local Air Quality
In “Minding the Climate Gap: What’s at Stake if California’s Climate Law Isn’t Done Right and Right Away,” released Wednesday, researchers from several California universities have correlated the relationship between greenhouse gas (GHG) emissions and associated co-pollutants in several California industries. The results demonstrate that California’s climate law, AB 32, enacted in 2006, could help reduce not just carbon dioxide emissions, but a variety of co-pollutants that have contributed to the state’s persistent pollution. At the same time, the study
The Public Needs a Voice in Policy. But is Involving the Public in Rulemaking a Workable Idea?
by Bill Funk | April 13, 2010
Informal rulemaking under the Administrative Procedure Act was, as the late Kenneth Culp Davis opined, "one of the greatest inventions of modern government." It not only decreased the procedural requirements (and therefore the overhead) of “formal” rulemaking, but it also broadened the universe of persons able to participate in the informal proceeding to the public at large. Subsequently, other laws, such as the Freedom of Information Act, the Government in the Sunshine Act, and the Federal Advisory Committee Act, have