Through Another's Eyes: Getting the Benefit of Outside Perspectives in Environmental Review

30 Pages Posted: 7 Jan 2011

See all articles by Holly Doremus

Holly Doremus

University of California, Berkeley - School of Law

Abstract

The Deepwater Horizon blowout has important lessons to teach about environmental review. It is easy to scapegoat the Minerals Management Service for its poor implementation of the National Environmental Policy Act’s environmental study requirements, a product in part of its capture by the oil industry. But captive agencies are a common phenomenon. Oversight by environmental mission agencies is supposed to provide a check on the myopia typical of captive or primary-mission agencies. NEPA, the Endangered Species Act, and the Coastal Zone Management Act all provide for such oversight in the offshore drilling context. Yet none of the external reviews conducted in the course of permitting the Macondo Well uncovered MMS’s wildly incorrect estimates of the probability, magnitude, and consequences of a blow-out. This article details the external reviews that were conducted, explains why those reviews were ineffective, and offers suggestions for improvement. Reinvigorating worst-case analysis under NEPA and incorporating worst-case analysis into ESA consultation for activities that pose an uncertain risk of catastrophic harm could help focus the attention of reviewing agencies on actions that merit an especially close look, and justify the mobilization of the resources needed to evaluate action agency risk assessments.

Keywords: NEPA, OCSLA, ESA, CZMA, Worst-Case Analysis, Deepwater Horizon, Oil Spill, Environmental Review, Agency Capture

Suggested Citation

Doremus, Holly, Through Another's Eyes: Getting the Benefit of Outside Perspectives in Environmental Review. Boston College Environmental Affairs Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=1735748

Holly Doremus (Contact Author)

University of California, Berkeley - School of Law ( email )

790 Simon Hall
Berkeley, CA 94720-7200
United States
510-643-5699 (Phone)

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