Offshore Safety in the Wake of the Macondo Disaster: Business as Usual or Sea Change?

70 Pages Posted: 5 Feb 2014

Date Written: February 3, 2014

Abstract

Only two years after the disastrous blowout of BP's Macondo well in the Gulf of Mexico, all seemed back to normal in the Gulf. Additional lease sales occurred and more rigs were drilling in the deepwater Gulf than before the drilling moratorium imposed after the blowout. Several new entities have now been created to ensure better offshore safety in the U.S., such as the Bureau of Safety and Environmental Enforcement (BSEE), the Center for Offshore Safety and the Offshore Energy Safety Institute. Nonetheless, no new legislation has been enacted to require greater safety in offshore operations. This Article asks: Is the Gulf safer now than it was pre-Macondo?

This Article appears in two parts, in two successive issues of the Houston Journal of International Law. Part One discusses three significant changes to business as usual that have occurred without legislative change: (1) the recognition of complacency as negligence; (2) the moratorium as a technology forcer; and (3) the globalization of best practices, particularly through the adoption of industry Recommended Practices as federal regulatory mandates. Offshore operators must now have a Safety and Environmental Management System (SEMS), and these systems must be audited to validate operator compliance. Other best practices, such as collecting data for precursor analyses of "near misses," are also moving forward. Part One concludes with an assessment of these three changes and whether they have made drilling in the Gulf of Mexico safer today than it was before the Macondo disaster.

Part Two of this Article (forthcoming) focuses on the role of the regulator post-Macondo. All three of the changes analyzed in Part One require an effective regulator to ensure that the lessons of the Macondo disaster, most notably the lesson that complacency kills, are embedded into current and future offshore safety practices. Part Two examines the new entities that have been created to advance offshore safety in the Gulf and compares their accomplishments to date with the practices of experienced regulators of the offshore regimes used in Norway and the UK.

The Article concludes that the U.S. regulator, BSEE, has a steep learning curve to climb before it becomes a competent regulator. The industry's Center for Offshore Safety is now the most effective actor in advancing offshore safety in the Gulf. The Center's role is assessed in terms of the "new governance" of using private, third-party certification systems to enforce government regulations based in large part on industry's Recommended Practices. The Article offers six recommendations to help BSEE build competence and assure that the public interest is served when safety management is delegated to non-governmental actors. Finally, the Article warns that the weakness of the current offshore regulator is a "weak signal" that industry must heed in self-auditing its own safety practices.

Keywords: offshore regulation, offshore safety, offshore oil, oil and gas, safety management, energy policy

Suggested Citation

Weaver, Jacqueline Lang, Offshore Safety in the Wake of the Macondo Disaster: Business as Usual or Sea Change? (February 3, 2014). 36 Houston Journal of International Law 147 (2014), U of Houston Law Center No. 2014-A-3, Available at SSRN: https://ssrn.com/abstract=2390184

Jacqueline Lang Weaver (Contact Author)

University of Houston Law Center ( email )

4604 Calhoun Road
Houston, TX 77204-6060
United States

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