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Shortcutting environmental reviews: the Deepwater Horizon disaster

The devastating 1969 blowout and oil spill at the Union Oil platform off the coast of Santa Barbara, which spilled an estimated 3-million gallon of crude oil into the ocean and created an oil slick 35- miles long, is widely considered to be one of the worst environmental disasters in the history of the United States. At the time, it was the largest oil spill ever in U.S. waters. Today, it still ranks third behind only the 2010 Deepwater Horizon and 1989 Exxon Valdez spills.

That January 28, 1969 blowout was ultimately found have been a result of inadequate safety precautions taken by Union Oil. The company had received a waiver from the U.S. Geological Survey allowing it to build a protective casing around the drilling hole that was 61 feet short of the federal minimum requirements at the time. [1] The resulting explosion was so powerful it cracked the sea floor in five places, and crude oil spewed out of the rupture at a rate of 1,000 gallons an hour for a month before it could be slowed.

In its aftermath, Congress passed the National Environmental Policy Act (NEPA), a law requiring the federal government and companies like Union Oil to engage in an environmental review process to discover if a project will have any significant environmental and public impacts before a decision is made and construction begins.

NEPA also brought a new level of transparency and accountability to government decision-making. Drawing on our democratic values, NEPA’s public comment periods helped to ensure that projects would be undertaken with the benefit of our communities in mind. With the passage of NEPA, the American public believed an environmental catastrophe like the 1969 Santa Barbara oil spill would never happen again.

Three steps forward, two steps back

As the 1970s energy crisis unfolded, however, Congress passed legislation dramatically expanding domestic oil production that enshrined exemptions to NEPA for the central and western Gulf of Mexico.

Specifically, a 1978 Amendment to the Outer Continental Shelf Lands Act (OCSLA) fast-tracked approvals for exploration plans and “expressly single[d] out the Gulf of Mexico for less rigorous environmental oversight under NEPA.” The Act exempted oil companies from submitting development and productions plans (which include environmental safeguards and are essential to the NEPA process) for agency approval.[2] Accordingly, Gulf leases, unlike those applicable to other offshore areas, “were not subject to the requirement of a NEPA environmental impact statement for development plans for a particular geographic area.” [3]

The Department of the Interior went even further. In January 1981, the Department promulgated final rules declaring that exploration plans in the central and western Gulf of Mexico were “categorically excluded’ from NEPA review,” and though it later allowed for NEPA reviews in certain circumstances, that proved to be the exception rather than the rule. [4]

Although laws like the Endangered Species Act and Clean Water Act remained in place and imposed substantive limits on activities, each of these have a narrow, discrete focus and statutory trigger: threats to endangered or threatened species or their habitat under the Endangered Species Act or, under the Clean Water Act, only the incidental aspects of oil and gas activities discharging pollutants into navigable waters.

The Santa Barbara oil spill a decade-old and fading memory, federal agencies and opponents in Congress began carving out exemptions and egregiously excluding entire categories of action from any environmental review.

The 2010 Deepwater Horizon explosion

That myopic decision to roll back the environmental review process for offshore oil and gas drilling in the Gulf of Mexico in the 1970s had tragic consequences some thirty years later when the Deepwater Horizon drilling rig exploded on April 20, 2010, killing eleven workers and spilling 210 million gallons of oil into the ocean.

It was the worst environmental disaster in US history – but it was also avoidable. A subsequent report by the specially appointed National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling found that that the Minerals Management Service was granted a categorical exclusion and “performed no meaningful NEPA review of the potentially significant adverse environmental consequences associated with its permitting for drilling of BP’s exploratory Macondo well” or subsequent drilling permits. MMS also “categorically excluded from environmental impact review BP’s initial and revised exploration plans—even though the exploration plan could have qualified for an “extraordinary circumstances” exception to such exclusion, in light of the abundant deep-sea life in that geographic area and the biological and geological complexity of that same area.” [5]

While the MMS assessed the environmental impact of drilling in the central and western Gulf of Mexico on three occasions in 2007 – including a specific evaluation of BP’s Lease 206 at Deepwater Horizon – in each case the prospect of a major blowout was severely downplayed.

In one assessment, the agency estimated that “a large oil spill” from a platform would not exceed a total of 1,500 barrels and that a “deepwater spill,” occurring “offshore of the inner Continental shelf,” would not reach the coast. At its peak, oil rushed out of the Macondo well at a rate of 8,000 barrels (340,000 gallons) of crude each day.

The commission concluded that “neither alone nor in combination [did] any of the laws come close to ensuring a reasonable level of overall environmental protection applicable to all aspects of oil and gas activities on the outer continental shelf.” [6]

To this day, opponents of the NEPA continue to peddle the pervasive falsehood that the environmental review process is the primary barrier to project completion. The conclusions of the bipartisan BP Deepwater Horizon Commission Deepwater disaster suggest that couldn’t be any further from the truth.

Even if Congress repealed NEPA tomorrow, project sponsors would still have to comply with laws and regulations governing endangered species, water quality, air quality, historic preservation, and wetland protection, among others. The biggest difference is that, without NEPA, these reviews would become balkanized and shielded from public scrutiny.

Such is the value of NEPA: the federal environmental review process works to counteract these organizations biases, requiring the government to take a holistic approach that ensures robust consideration of all potential environmental, economic, and public health impacts of a project.

Drill baby, drill

Like the Santa Barbara oil spill, the Deepwater Horizon disaster is a tragic example of the loss of life and irreversible harm to our environment harm that can occur when Congress, federal agencies, and oil companies seek to circumvent NEPA and other bedrock environmental laws.

And yet, opponents in Congress continue to introduce dozens of bills seeking to weaken or altogether waive critical protections for our environment and public health.

The “Offshore Energy and Jobs Act of 2015” (S. 1276), for example, was introduced in the last Congress by Senators Cochran (R- MS), Cornyn (R-TX), Vitter (R-LA), and Wicker (R-MS) – whose very constituents were most impacted by the Deepwater disaster. It would have placed severe restrictions on environmental review and eliminated any consideration of alternative courses of action.

Although supporters of reasonable protections and public engagement were able to fend off that as well as many other legislative attacks, the job isn’t getting any easier. Since the Deepwater disaster, dozens of similar bills have also been introduced seeking to expand offshore drilling at the expense of sensible protections for our environment.

Today, the House Natural Resources Committee will hold a hearing on yet another one of these bills, this one entitled the “Enhancing State Management of Federal Lands and Waters Act.” If passed, it would not only give states “exclusive jurisdiction” over offshore permitting and “regulation,” but also over leasing in so-called “enhanced management regions” (to be identified by states through an application process). All such state-managed activities would be entirely exempt from NEPA, the National Historic Preservation Act (NHPA), and the Endangered Species Act.

It gets worse – a lot worse. A provision buried in this bill would also force coastal states to make a choice between allowing inherently dangerous offshore drilling or paying the federal government potentially billions of dollars. If a state declines to approve more than 50% of the lease blocks within a lease sale in order to protect its coastal economies, beaches, and communities, then it would be required to pay a portion of the projected revenue from the lease sale to the federal government. Tantamount to extortion, states would be required to pay 10% of the anticipated value of the entire lease sale, plus an additional 10% for each lease block that brings the number of lease blocks withdrawn at the state’s objection to over 50 percent.

The bottom line is that if we don’t act now, Congress could, little by little, take away our right to have a say about federal government actions on our own coastlines and in our own backyards. Our message is simple: Never Eliminate Public Advice.  


[1] Martin Miller. “The Oil Spill that Sparked the Green Revolution.” The Los Angeles Times. November 30, 1999.

[2] National Environmental Policy Act; Revised Implementing Procedures, 45 Fed. Reg. 75336 (proposed Nov. 14, 1980) (proposed NEPA rules); National Environmental Policy Act; Revised Implementing Procedures, 46 Fed. Reg. 7485 (Jan. 23, 1981) (final NEPA rules); see 516 Departmental Manual, 2.3.A(2) (1980).

[3] “Deep Water: The Gulf Oil Disaster and the Future of Offshore Drilling.” National Commission on the BP Deepwater Horizon Oil Spill. January 2011.

[4] “Outer Continental Shelf Safety Oversight Board, Report to the Secretary of the Interior.” U.S. Department of the Interior. September 1, 2010. 

[5] National Commission on the BP Deepwater Horizon Oil Spill.

[6] Ibid.

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