The NEPA Side of the Gulf Oil Spill, Jacob Wall

My research paper was on the NEPA side of the Gulf oil spill that is still spilling today. NEPA (National Environmental Protection Act) was established forty years ago to protect the environment from projects. A company that is going to do the project has one of three options. There is a Categorical exemption, Environmental Assessment (EA) and Environmental Impact Statement (EIS). The government can excuse a company from doing a assessment or impact statement by giving them a categorical exemption, and is usually given to projects that don’t have any possibility of hurting the environment. An EA or EIS is used to further analyze projects potential affects on the environment. BP got a categorical exemption for drilling in the gulf, and this is now a highly controversial topic of whether they should have or should have not gotten one. These interviews show three peoples opinions on this topic.

Mathew Wells – NEPA

BP got a categorical exemption for drilling in the Gulf, What types of projects have you seen been exempted?

Projects that I have been a part of that have been categorically exempted include building a single family residence and building trails on public land. The concept of a categorical exemption is that actions that are considered to be fairly small or inconsequential to the environment should not need to go through the whole NEPA process, whereas if it potentially has an impact on the environment it should go through the whole NEPA process, such as an Environmental assessment and or an Environmental Impact Statement.

Since BP was drilling deeper than previous drilling, should a different type of NEPA evaluation been used?

I think that they should have at least done an EA on the project because there is a significantly higher risk when moving to deeper waters, and even if they weren’t moving to deeper waters a project like this has high risks to the environment even if it is the same depth as other drillings that were successful.

Before President Regan the NEPA process included “Worst case analysis,” but was renounced to “reasonably foreseeable,” what does this mean? And do you think that if BP did a Worst case analysis there would have been a different outcome?

Before Regan in the NEPA process companies had to account for all freak accidents and possible things that could happen. I think that it sounded great on paper, the “Worst case analysis” but was incredibly hard to implement, and it gave judges free range. It was a great tool to stop projects or slow down projects but was not a great decision making tool at the end of the day. Judges could say that they did not cover all of the worst case things that could happen and this would delay the process. I think that “reasonably foreseeable” is a lot more effective tool.

Do you think that if BP completed an EA or EIS there would be a different outcome today?

IF BP did an EIS there would be almost certainly a different response from the public. However, I do not believe there would be a different outcome of the situation in the Gulf. In the south there is a much different view on the environment and affects on the environment then in the Northwest. If a EIS or EA was done for the oil rig I do not think there is a kind of organized opponents who would have stopped the process in the south, whereas in the Northwest there is this presence. So, if the drilling was occurring in the Pacific Northwest there may have been a totally different outcome if an EIS was filed because there is a public presence which will fight against these things, unlike the South. Therefore I do not think that a EIS or EA would have made a difference because mainly of the location. But I do think that this incident will make an enormous difference in the future of oil drilling and the NEPA process in general.


Garret Voerman – Former EPA (Environmental Protection Agency) worker
BP got a categorical exclusion for drilling despite moving into deeper waters. Does it seem logical that BP got an exemption?
Based on what happened no it does not seem logical. The people who granted the exclusion are the ones to ask. Minerals Management Service is the responsible permitting agency. They publish the proposed categorical exclusions in the federal register and the public and other agencies have an opportunity to comment. The President's Council on Environmental Quality (CEQ) publishes the regulations for complying with the National Environmental Policy Act (NEPA) which requires that each federal agency must conduct an environmental evaluation before permitting any project which is likely to have a substantial environmental impact. Those regulations allow for categorical exclusions for projects that individually or cumulatively have minimal adverse environmental impacts. CEQ has the authority to deny categorical exclusions for projects. All parties rely on the environmental documentation provided by the permitting agency (in this case the Minerals Management Service).
Should drilling in deeper more dangerous waters trigger a different type of evaluation?
Drilling in deeper waters with the potential for major environmental impacts should have triggered a more comprehensive risk and environmental assessment.
In your experience when have you seen exemptions applied?
They have been applied only for project which have minimal environmental impacts individually and cumulatively; for example repairing a stormdrain outfall where there was not additional encroachment into water beyond the original footprint (considered routine maintenance).
Do you think that if BP did an EA or EIS there would be a different outcome or not?
The Minerals Management Service is responsible for preparing the EA or EIS to assess environmental impacts. It is my understanding that an EA was produced but that it indicated the risks and extent of any environmental impacts were very low. The quality and extent of the analysis is what is in question here. Did they do an adequate job of assessing the risk of a spill and the environmental consequences if a spill did occur. They apparently did not.
Do you think that the region in which the spill occurred had a factor, for example their pro drilling attitude?
Undoubted this has an influence although it is difficult to prove. A more worrisome issue is the relationship of Minerals Management Service (the regulating agency) with the Oil Industry. There have been congressional reports on this that show an inappropriate relationship (they should be available on line). The concern is that the agency may have not done a thorough job in assessing the risk and environmental consequences of an event such as the spill that is happening because they wanted to permit the exploration regardless of consequences. Congress is looking into this issue at the present time.

John Kudnutsen – Fish biologist for environmental consulting firm called Tetratech

In the Gulf there are tons of oil rigs and a lot of drilling going on. Previous oil rigs that have drilled in the Gulf must have completed EIS’s and or EA’s on past developments. These set the standard for all the oil rigs in the gulf and BP developed simple mitigation for all of the problems. Therefore one EIS and EA would cover all of the BP oil rigs even though some, such as the Horizon went deeper than others.
I have experience with this type of thing when I was working in Alaska with water quality discharge I developed a plan that covered all of the projects that were going on there. This is called a Blanket Permit and then you do not need to do anymore analysis.
For the BP’s blanket permit the EIS and EA would say that on every oil rig there is a blowout preventer that will shut the valve if something happens. Since there is the protection (blow out preventer) on this oil rig just like the last one we did the EIS for, we do not need to do another EIS. However since the Deepwater Horizon was drilling deeper, and different conditions were present it seems like BP should have taken further action and have done an EIS or EA.
I have worked with stream pipeline, and when analyzing the pipe for an EIS we did not take into account the chance of the pipeline blowing up because it is not a likely to occur action. In an EIS you do not deal with accidents that seem unlikely. The people analyzing the blanket permit for BP may have thought that the oil rig blowing up is an accident that is very unlikely to occur, or they could have not even done a risk assessment.
I have worked on hydroelectric projects on both the east and west coast and the Northwest has a lot more intense regulations than the east because it has a much more aware public in environmental matters. In my experiences the developer in the East and South get the benefit of the doubt, but in the Northwest the environment does. People from Houston are currently working in the same department as me and they are wondering why there are so many steps and surveys here compared to where there from. Also, 15% of Louisiana’s industry comes from oil whereas only 3% comes from fishing. This shows that the people in the south are dependent on oil, and that is why the governor of Louisiana is questioning president Obama about how he has postponed all drilling in the Gulf. However, in Alaska, their numbers are pretty similar to those of Louisiana and they have a lot more environmental awareness than the south.


I tried to interview a family friend who works for EPA as an environmental lawyer and this is the response I got:
I don't think anyone at EPA is in a position to comment on theissues you want to discuss. What you are essentially asking iswhether MMS, a sister federal agency, did its job. And I don't thinkthat is something an EPA staff person can or should comment on rightnow. So while I'd like to help, I really can't nor can I suggest that anyoneelse at EPA do that. Once a lawyer, always a lawyer!