BILOXI, Miss.—Michael White is the kind of person who doesn’t get the point of dry land. Born and bred on the Mississippi Gulf Coast, he’s never pursued a career, or a life, too far away from the waters he fished and sailed on as a young boy.
Now, he’s taken his lifelong passion to a charming extreme, captaining an old-school paddle boat called the Betsy Ann and selling tickets to tourists to see the Biloxi coastline up close.
On lucky days, visitors taking the Betsy Ann get a chance to see ospreys soaring through the sky and even dolphins, but White knows that spotting wildlife isn’t a given. The Gulf ecosystem has been consistently devastated by nutrient pollution, extreme hurricanes and, over a decade ago, the Deepwater Horizon oil spill, the biggest in U.S. history.
“It was unbelievable… the oil was thick, heavy and gooey like peanut butter,” said White. “We were filling eight 40-yard dumpsters with oil a day for four months straight.”
White traveled to Southern Louisiana to assist with clean-up after the spill, an event that then-President Barack Obama called the nation’s worst environmental disaster due to its devastating effects on seabirds and marine ecosystems.
Over a three-month period beginning on April 20, 2010, over 200 million gallons of oil spilled into the Gulf of Mexico because of a catastrophic blowout and explosion that rocked the Deepwater Horizon, an offshore oil rig 41 miles off the Louisiana coast operated by British Petroleum, killing 11 workers and injuring 17 others.
In Biloxi, the effects of the disaster on seabirds and sea fronts are mostly gone except in the memories of residents. But the measures designed to prevent a similar disaster lay in the hands of a federal court in Louisiana, Interior Department officials in Washington and lawmakers on Capitol Hill.
Former President Donald Trump’s administration weakened many of the drilling safety measures adopted under Obama after the disaster. Most notably, Trump partially repealed a federal regulation that required increased testing and monitoring of underwater drilling equipment and well-control operations.
As over 80 operators continue to drill and pump oil in the Gulf today under the weakened regulation, environmental activists are in federal court in New Orleans trying to get Trump’s partial repeal thrown out.
Although President Joe Biden has put the partial repeal on a long list of Trump administration actions to review, it’s unclear whether his administration will simply try to revert to the Obama well safety regulation, or try to strengthen it.
There’s always the potential for something catastrophic to happen like “another Deepwater Horizon spill,” said Chris Eaton, a senior attorney with Earthjustice and a lead counsel in the case challenging Trump’s partial repeal, which remains in effect. “It’s important to make sure that to the extent that there is oil and gas development still happening, that it’s done safely.”
Megan Baldino, a spokeswoman for BP, said the Deepwater Horizon accident “forever changed” the company.
“We will never forget the 11 people who lost their lives or the damage that occurred as a result of this tragedy. In 2010, we committed to becoming a safer company and helping restore the Gulf of Mexico region economically and environmentally,” she said in a statement. “Since the accident, BP has strengthened its safety management systems, and the lessons we learned have become the foundation for our culture of care. We have shared our lessons with the industry and regulators around the world, including by participating in global forums. We continue to honor our commitments and remain keenly aware that we must always put safety first.”
The Campaign to Criminalize ‘Ecocide’
As the litigation over the Trump rollback proceeds, another group of lawyers working as part of a campaign to make “ecocide” an international crime is poised to release its definition of that offense—systematic destruction of the environment—on Tuesday. If ultimately adopted by the International Criminal Court in the Hague in a process that could take years, ecocide would become the fifth crime within the court’s jurisdiction, alongside genocide, crimes against humanity, war crimes and crimes of aggression.
The United States is not a member of the court, and any future prosecution of this new crime would only be prospective, meaning executives from British Petroleum could not face criminal proceedings related to the Deepwater Horizon spill.
Beyond its legal definition, the term “ecocide,” first coined to describe the U.S. military’s use of the toxic defoliant Agent Orange during the Vietnam War, is gaining currency as a way to describe the global impacts of climate change and a range of destructive environmental practices, including deepwater drilling.
Polly Higgins, the late Scottish barrister who began the movement to criminalize ecocide more than a decade ago, wrote in her 2012 book, “Earth Is Our Business”:
”The Deepwater Horizon spill was an obvious example of a tragedy born of a history of decisions to cut costs to ensure a lean operation unburdened by too many safety regulations. Various environmental regulations do not add up to a law that prohibits ecocide: BP [executives] were free to destroy a vast tract of sea and its inhabitants without having to pay the true price for the damage to many species. What was valued was protection of their business, even where that caused damage to others. Intrinsic values, such as caring for the community of fishermen adversely affected by the pollution, was not a primary consideration. Intrinsic values, such as the well-being of the fish, was not a primary consideration.”
Still Unknown Effects on the Environment
Scientists estimate that more than 1 million seabirds were killed as a direct result of the oil spill. A study found that bottlenose dolphins living in particularly hard hit Barataria Bay, Louisiana, suffered 46 percent more failed pregnancies than normal and an estimated 800 died.
Abby Darrah, a biologist at the Audubon Mississippi Coastal Bird Stewardship Program, said that the potential long-term effects on seabirds and marine life are unclear.
“There have been some studies done on seabirds that ingested fish that have been exposed to oil,” said Darrah. “There’s a lot of unknown effects in the long term that we just don’t know.”
The spill’s damages to the Gulf economy are staggering. Estimates of the loss in the Gulf coastal economy due to decreased tourism were projected up to $22.7 billion through 2013.
White said that, even though the amount of oil reaching Mississippi wasn’t extreme, Biloxi businesses, including hotels and restaurants, suffered for years due to the lack of visitors.
But in the Southern Louisiana marshes, White also saw just how much oil there was in areas hit the hardest.
“We came up with a neat little deal where we took an excavator, you know, a big, long-arm excavator and put a giant squeegee on it,” White said. “We would squeegee all of that oil up and then all the marsh grass that we just cut, mix it all together so that we could grab it and put it in dumpsters.”
The Blowout Preventer Systems and Well Control Rule
The Deepwater Horizon exploded, caught fire and ultimately sank after rig operators misread pressure in the oil well and took ineffective steps to control a surge of oil and gas before a massive piece of equipment called a blowout preventer failed to seal the well.
After the disaster, Obama convened a group of experts, the National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling, to examine the causes behind the Deepwater blowout and to make safety recommendations that would ensure such a disastrous spill would never happen again.
The commission ended up developing over 25 detailed recommendations to make offshore oil drilling safer, including whistleblower protections for those who expose safety hazards on oil rigs. But many of the commission’s proposals were never implemented.
“We got a lot of blowback from the industry because one of the conclusions in our report was that this was a systemic problem,” said Terry D. Garcia, a commission member and former deputy administrator of the National Oceanic and Atmospheric Administration. “The fact remains that not BP, not Chevron, not Exxon, none of these companies had the ability to respond when the incident occurred. They didn’t have the capability of dealing with and containing the spill.”
When presented with the recommendations, Congress moved slowly and never passed legislation to improve offshore oil safety. It was up to Obama and his executive agencies to ensure some form of government oversight be put in place.
One of the most important actions happened in 2016, when an Interior Department agency created under the Obama administration, called the Bureau of Safety and Environmental Enforcement (BSEE) finalized the Blowout Preventer Systems and Well Control Rule.
The rule significantly tightened safety requirements on underwater drilling equipment and well-control operations, including requiring that onshore personnel monitor drilling in real time. This would put more expert eyes on the operations and guard against mistakes, like a faulty pressure test conducted by the Deepwater crew.
A pivotal process when drilling for oil in deep water and layers of earth is to maintain a balance of pressure within a well. Workers insert drilling mud, a thick, heavy fluid, while drilling to balance the pressure from the massive layers of rock squeezing in on the well. Mismanaging pressure in the well can result in gas and salt water kicking back up the well, resulting in a blowout.
The rule attempted to minimize mistakes in the drilling process by implementing a safe pressure margin that could only be waived in exceptional circumstances, which ensures that a safe pressure is maintained in the well and leaves room for error so that corrective measures can be taken if sudden changes in pressure occur.
When workers finish drilling, they insert cement into the well to maintain pressure and ensure that oil and gas from the reservoir below are not driven up into the well. In the Deepwater Horizon blowout, the cement job failed to effectively block out those fluids.
The rule mandated increased oversight in identifying and fixing faulty cement jobs like the one that caused the loss in the balance of pressure at the Deepwater. It also required the drill team to ensure that well cement jobs are sufficient before taking further actions and to obtain BSEE approval before taking any remedial actions for an inadequate cement job.
According to Don Boesch, a professor of marine science at the University of Maryland and a commission member, one of the most important aspects of the initial disaster was the failure of the blowout preventer.
“It was apparent back in 2010 that the blowout preventer didn’t work,” said Boesch. “If you have a vital piece of equipment, you have to make sure it’s inspected regularly, ensure that it’s working correctly.”
Blowout preventers are the last line of defense when fluids shoot up the well. A massive piece of machinery composed of huge pistons and shear rams, blowout preventers can close wells for a short period of time or seal them for good if a well is hopelessly compromised.
The rule attempted to make blowout preventers foolproof to the point that they could close or seal the well at any time. It required they have redundant shear rams, sufficient hydraulic power on the seafloor, “autoshear” and “deadman” systems capable of shearing and sealing a well when connection to the rig is lost, and a mechanism to center the drill pipe for cutting.
Testing of vital systems was also improved, setting minimum standards for inspection such as requiring reports for blowout preventers each year and a complete breakdown inspection with a government safety expert every five years. Any equipment failures had to be reported directly to BSEE.
Finally, if a spill did occur, the rule required that operators have the ability to deploy containment equipment quickly to avoid the months of continual oil spilling that happened after the Deepwater accident.
Trump Rolled Back the Obama Rule Before it Took Effect
When the rule was finalized, BSEE gave the industry until 2019 to comply. But the Trump administration announced in May 2019 that it was rolling back the Obama well safety rule, weakening many of its provisions before they ever took effect.
For example, the partial repeal eliminated the required onshore monitoring requirements and made it easier for companies to get waivers so they would not have to adhere to the default safe-drilling margin. It also changed the system of independent safety inspection by government and BSEE officials, allowing the industry to conduct inspections with its own auditors.
The Trump administration and the oil industry said that the partial repeal gave oil drillers greater flexibility while still using the most up-to-date safety technology and practices. When the partial repeal was made public, the Interior Department estimated that the changes were expected to save the oil industry about $824 million over 10 years.
“The safety of our workers, our operations and our communities, along with protection of the environment, is the oil and natural gas industry’s number one priority. The revisions strengthen the rule and enhance a robust regulatory framework to ensure updated, modern, and safe technologies, best practices, and operations,” a spokesperson for the American Petroleum Institute said in a recent interview.
But with severe stressors on the economics of the oil and gas industry, including the fallout of the Covid-19 pandemic and consistently falling oil prices before a recent rally, environmentalists are worried that the industry could put cutting costs over safety without tougher regulation.
Beyond the Deepwater Horizon disaster, there are thousands of spills that occur every year, “especially in the Gulf of Mexico, where most of the drilling is occurring,” said Devorah Ancel, a senior attorney with the Sierra Club. “That could be prevented or avoided if the more stringent safety regulations are put in place.”
The Next Move in Court Belongs to the Biden Administration
The environmental activists suing in federal court to block the Trump administration rollback argued that Trump’s Interior Department disregarded the extensive evidence that went into the original rule and failed to consider how the rollbacks could harm offshore safety and the environment. The case has dragged on, with the Biden Justice Department just now assuming representation of the Interior Department.
While the Biden administration has put the Well Control Rule on its list of agency actions for review, the Justice Department will presumably drop its defense of the Trump rollback. But more than that will be required to finally put the Obama rule into effect.
Attorneys involved on both sides of the case say there are some aspects of the Trump rollback, involving small language fixes and technical matters, they would like to retain. The Biden administration could also use the opportunity to try to strengthen the Obama rule.
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Whatever the administration decides, the attorneys say it’s almost certain that a new rule repealing most of the Trump rollback will have to be put forward and undergo the standard comment period and review process before it takes effect.
The Justice Department has been given a stay by the judge until June 25 to review its strategy and produce documents detailing the process behind the Trump administration’s rollback.
A spokesperson for the Interior Department said the Bureau of Safety and Environmental Enforcement is “reviewing the rule to determine if revisions are warranted” and has tentatively scheduled publication of a new proposed rule in September.”
Biden has focused his fight to reduce climate change on phasing out fossil fuels, but drilling in the Gulf of Mexico will continue as that transition takes place, making the safety of offshore rigs critically important.
“As much as some people would like to phase out fossil fuels, it’s going to be likely that we’re drilling and producing oil in the Gulf for at least a couple of decades,” said Boesch, the former Deepwater commission member. “We should be sure that it’s as safe as possible, particularly in an economic business model where the industry is going to be winding down.”
Back in Biloxi, White says he’s been a supporter of oil for a long time. He worked fixing pipeline leaks underwater in the Gulf of Mexico years ago and sees fossil fuels as a necessity for the economy and, more directly, for operating his riverboat.
But with powerful business interests still pumping and drilling oil not too far away in the Gulf waters, he thinks it’s only a matter of time before another devastating spill happens.
“These oil and gas companies I’ve worked for over the years, it’s always safety, safety, safety, safety, until the dollar’s involved,” White said. “I’m sure a spill will happen again.”