Crude Injustice in the Gulf: Why Categorical Exclusions for Deepwater Drilling in the Gulf of Mexico are Inconsistent with U.S. International Ocean Law and Policy

Abstract

Those who cannot remember the past are condemned to repeat it. (1) I. INTRODUCTION II. HIGHSTAKES PROSPECTING IN A FRAGILE OCEAN. A. Overexploitation B. Pollution 1. Nutrient Loading 2. Synthetic Pollutants 3. Oil Pollution C. Climate Change and Ocean Acidification D. Deepwater Environments-The Last Frontier III. THE SEARCH FOR LIQUID GOLD; HIGH STAKES PROSPECTING IN THE GULF A. Gulf of Mexico: The Nation's Testing Ground B. Deepwater Horizon: Leaving a Legacy of Environmental Harms IV. NEPA AND OFFSHORE OIL PRODUCTION A. Council on Environmental Quality B. NEPA Compliance C. NEPA's Hard Look Requirement D. NEPA and Offshore Oil Drilling E. Deepwater Horizon-MMS Review of BP Plan 1. MMS: Environmental Review for BP Lease 2. Categorical Exclusion of BP's Exploration Plan V. Analysis and Recommendations A. Categorical Exclusions for Exploration Plans Violate NEPA and OCSLA 1. MMS: Failure to Assess the Impacts of a Catastrophic Oil Spill 2. MMS: Failure to Assess the Impacts of Using Dispersants in Deep Water 3. MMS: Categorical Exclusion of BP's Exploration Plan B. The Existing Environmental Review Process for Deepwater Drilling in the Gulf is Inconsistent with U.S. Ocean Policy C. Categorically Excluding Exploration Activities on the Outer Continental Shelf from Environmental Review Is Inconsistent with U.S. Obligations under International Law VI. CONCLUSION I. INTRODUCTION In an instant, oil and gas fumes raced from the well to the surface through the drill collar, exploding on contact with the semisubmersible oil rig's motors. Equipment designed to prevent such well blowouts failed, and oil flowed freely to the surface to fuel a massive fire that consumed the rig and caused it to collapse into the Gulf of Mexico. As the rig fell to the sea floor, the underlying well structure broke apart and allowed oil from the well to spew unimpeded into the ocean. Month after month the world watched in horror as tens of thousands of gallons of oil flowed into the Gulf's prime fishing grounds each day. Every effort to contain the oil failed. As some workers drilled relief wells to lower the pressure at the site of the blowout, others sprayed dispersants onto the growing oil slick to break down the oil before it reached the coast. Workers raced to implement measures to mitigate the environmental impact of the oil on beaches, inlets and estuaries. Politicians impatiently demanded accountability and financial commitments from responsible parties. Within days of the spill, the Gulf ecosystem revealed its fragility and vulnerability to human activity. White sand beaches turned black, seabirds lost their ability to fly, and marine organisms washed ashore dead--all victims of oil exposure. Technology proved inadequate to remove most of the oil from the water column. After millions of gallons of oil had been released into the Gulf, workers finally found a way to cap the well and stop the flow of oil, leaving the Gulf with a toxic legacy and an uncertain future. The account above bears a remarkably close resemblance to the April 20, 2010 Deepwater Horizon (DWH) oil well blowout that occurred off the coast of Louisiana, killed eleven people, and led to the largest oil spill in U.S. history. (2) Sadly, it is not. It is actually an account of the 1979 Ixtoc I oil well blowout in Mexico's Bay of Campeche that caused the release of approximately 147 million gallons of oil into the Gulf of Mexico (Gulf). (3) The oil contaminated 162 miles of Gulf shoreline, including large sections of the Texas coast. (4) The migration of oil from Mexican to U.S. waters caused a wide variety of damages to natural resources in the Gulf and caused economic hardship for many people who relied on the ocean to earn a living. …