The Flow of Authority to Stop The Flow of Oil: Clean Water Act Section 311(C) Removal Authority and the BP/Deepwater Horizon Oil Spill

Frederick J. Kenney, Jr. & Melissa A. Hamann | Article

“Surround yourself with the best people you can find, delegate authority, and don’t interfere.”

–President Ronald Reagan

Though not the largest oil spill the United States has ever experienced, nor its worst environmental disaster, the BP/DEEPWATER HORIZON Oil Spill (DEEPWATER HORIZON) was enormous and devastating. Ignited by pressurized methane gas bubbling up from a depth of 18,360 feet below the sea, the DEEPWATER HORIZON oil rig exploded on April 20, 2010, killing eleven men. After the rig sank two days later, breaks in the riser pipe connecting the rig to the ocean floor began spewing hundreds of thousands of gallons of crude oil and gas into the Gulf of Mexico. At first, the spill was nearly impossible to control effectively. Oil flowing from the well washed up on the shores of Louisiana, Alabama, and Mississippi, and polluted thousands of square miles of ocean. Three months later, the well was successfully capped, ending the catastrophic flow of oil. Assessment of the ecological and economic damage continues, as do cleanup efforts.

Although some may believe that no one contemplated that an environmental disaster of such magnitude could occur, for catastrophes like DEEPWATER HORIZON, a coordinated national emergency response plan has existed in some form in the United States since 1968. The National Oil and Hazardous Substances Pollution Contingency Plan (NCP), created to respond to oil spills and hazardous substance releases, was borne out of the 1967 TORREY CANYON disaster off the coast of England. After the supertanker ran aground and spilled over thirty-one million gallons of crude oil into the Celtic Sea, the U.S. Government, recognizing the United States’ own vulnerability, created the NCP, which provided a national response strategy for oil spills. Many acts of Congress required amendment and expansion of the NCP over the years, culminating in the passage of the Oil Pollution Act of 1990 (OPA), which resulted in the most recent major revisions to the NCP.

The NCP anticipates a unified inter- and extra-agency response to large oil spills using the Unified Command System (UCS) led by the Federal On-Scene Coordinator (FOSC). When appropriate, the NCP allows the designation of a higher-level organization: the National Incident Command. As the first actual Spill of National Significance (SONS) and the first time a National Incident Commander (NIC) had been designated, the DEEPWATER HORIZON response organization morphed, in a somewhat unanticipated evolution, into an entity unto itself under the general umbrella of the Secretary of the Department of Homeland Security’s (DHS) authority under section 311(c) of the 1990 amendments to the Federal Water Pollution Control Act (Clean Water Act or FWPCA) and her Presidential Directive-5 (HSPD-5) authority.

This Article describes the evolution of, and provides terms of reference for, the organizational structure of the DEEPWATER HORIZON response through the NIC and the FOSC and the relationship of the response structure with the organizational structures of the DHS, with the Secretary of Homeland Security as the Principal Federal Official (PFO) and the United States Coast Guard as the lead agency for oil spill response in the coastal zone. In Part I, this Article reviews the development of the NCP. Next, in Part II, this Article explains the intended organizational structure for oil spill removal authority as outlined in the Clean Water Act, the NCP, and the agency organization of the U.S. Coast Guard (the agency responsible for responding to oil spills in the coastal zone, like DEEPWATER HORIZON). In Part III, this Article presents and discusses the issues that arose during the spill response, including the unanticipated ways in which section 311(c) removal authority was distributed and utilized. Finally, in Part IV, this Article makes recommendations for improving and clarifying the NCP, so that the United States is better prepared for the next environmental disaster.