Are Current Judicial “Blowout Preventers” Sufficient?

As a BP oil well in the Gulf of Mexico continues to prove, at the rate of thousands of barrels of oil per day, that modern technology is no fail-safe against disastrous environmental mishaps, it provides a metaphor for a risk of malfunction in the legal system on which the public also depends to prevent such disasters. The ongoing massive leak in the Gulf of Mexico is the result of the failure of a series of human and technological safeguards intended to prevent uncontrolled releases of oil and gas from occurring. The final element in that series of protections is a mechanical device known as a blowout preventer, a device designed to detect a leak and automatically plug the oil well to stop further release of oil and gas. In the Gulf of Mexico, the well’s blowout preventer should have triggered and clamped the wellhead closed. It failed for reasons apparently not yet known.

Oil DrillingThe public depends on a similar system of safeguards to prevent approval of drilling permits that do not incorporate adequate protections against the risks of environmental disasters like that in the Gulf of Mexico. The public looks primarily to legislation and governmental administrative agencies for protection against environmental mishaps. For offshore drilling, the Minerals Management Service of the United States Department of the Interior has primary responsibility for environmental review. When it fails, the public looks to the courts as the legal equivalent of a “blowout preventer.” The courts are supposed to detect a failure in the administrative process and stop a project before an inadequately addressed environmental risk is realized.

There is now real question as to whether the current legal protections are functioning adequately. A recent New York Times article has noted that administrative protections are not functioning properly with regard to imminent off-shore drilling in environmentally sensitive waters off the north coast of Alaska. The courts at first served as effective “blowout preventers,” rejecting prior actions in the environmental clearance for off-shore oil drilling north of Alaska. The Times article goes on to recount reports that the Alaskan office of Minerals Management responded to those court actions by limiting participation in and promoting secrecy as to its environmental reviews of the proposed oil drilling project. A recently completed report of the Government Accountability Office found that internal practices of the Alaskan office of Mineral Management “hindered their ability to complete sound environmental analyses under NEPA,” the National Environmental Policy Act.

A recent decision of the United States Court of Appeals for the Ninth Circuit may demonstrate that current law may so constrain judicial oversight that it disables the courts from giving meaningful protection against environmental threats from controversial oil drilling projects. In an unpublished decision issued earlier this month, the Ninth Circuit rejected challenges to the most recent environmental reviews by the Alaskan office of Minerals Management of the Shell Oil project. The decision was founded on key limitations on judicial review of such matters: a “deferential standard of review;” exclusion of “extra-record” evidence; and the imposition on the petitioners, Native Village of Point Hope and Alaska Eskimo Whaling Commission, of the burden of proving agency misconduct. Where an agency’s manner of conducting its environmental review tightly controls and manages the administrative record, current legal principles may render the courts incapable of exercising meaningful oversight. Simply put, as the events in the Gulf of Mexico have demonstrated, if earlier levels of protection against an environmental disaster fail badly enough, they may disable even the measures intended to backstop them.