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Throwing Precaution to the Wind: NEPA and the Deepwater Horizon Blowout

Journal of Energy and Environmental Law, 2011

14 Pages Posted: 13 Feb 2011  

Sandra B. Zellmer

University of Nebraska at Lincoln - College of Law

Robert L. Glicksman

George Washington University - Law School

Joel A. Mintz

Nova Southeastern University

Date Written: February 12, 2011

Abstract

On April 20, 2010, BP’s Deepwater Horizon oil platform blew up. Eleven workers were killed in the explosion. When the platform sank to the bottom of the Gulf of Mexico two days later, oil erupted out of the riser - a 5,000-foot pipe connecting the platform to the well on the ocean floor. After a number of failed attempts to stop the leak, BP eventually capped the well in July, three months after the explosion. Nearly 5,000,000 barrels of oil were released into the Gulf, making the Deepwater Horizon the largest offshore oil spill in world history.

In this paper, we uncover some of the regulatory failures that led to the disaster. We focus on the National Environmental Policy Act of 1969 (NEPA), and describe how the government’s failure to take NEPA seriously reveals significant flaws in the oil and gas program as a whole. The precautionary nature of NEPA’s “look before you leap” mandate was completely undercut by the failure to prepare a “worst case analysis,” by the abuse of categorical exclusions, and by over-reliance on flawed assumptions provided by the industry. We assess how these shortcomings resulted in disaster, and suggests reforms to ensure that all potential risks of harm are identified and analyzed in a rigorous, accurate, and unbiased manner before a project like the Deepwater Horizon goes forward.

Keywords: NEPA, Worst Case Analysis, Precautionary Principle, Oil Leasing, Categorical Exclusion

JEL Classification: K23, K32

Suggested Citation

Zellmer, Sandra B. and Glicksman, Robert L. and Mintz, Joel A., Throwing Precaution to the Wind: NEPA and the Deepwater Horizon Blowout (February 12, 2011). Journal of Energy and Environmental Law, 2011. Available at SSRN: https://ssrn.com/abstract=1760425

Sandra B. Zellmer (Contact Author)

University of Nebraska at Lincoln - College of Law ( email )

103 McCollum Hall
P.O. Box 830902
Lincoln, NE 68583-0902
United States

Robert L. Glicksman

George Washington University - Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States
202-994-4641 (Phone)

HOME PAGE: http://www.law.gwu.edu/Faculty/profile.aspx?id=16085

Joel A. Mintz

Nova Southeastern University ( email )

3301 College Avenue
Ft. Lauderdale, FL 33314
United States

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