Auditing the President's Oil Spill Commission

The National Commission on the BP Deepwater Horizon Oil Spill (the Oil Spill Commission OSC) just finished its last set of public meetings as it prepares to submit its report to the president, due January 12, 2011. There is good news and bad news.

The good news is that its report will be released after the Republicans take control of the House of Representatives in January. The bad news is that left to its own devices and predispositions, the administration will likely do to the offshore oil industry what the Carter administration did to the nuclear power industry in the wake of the Three-Mile Island accident: effectively destroy a critical energy industry in which America is the world technology leader.

To prevent that catastrophe, the Republicans need to get up to speed with a responsible program for continuing offshore oil development. However, this program must incorporate the lessons that need to be learned from the BP accident into the culture of the oil companies that will go back to drilling. Government will necessarily have a major role going forward, so the upcoming report from the commission will play a part in the discussions, but it must not be allowed to set the agenda on its own. This report needs to be examined as the post-accident lessons learned by one of the major players -- the Obama administration. The situation is analogous to the Bly Report, which was BP's lessons learned from its unique perspective. Congress should put pressure on other major players, particularly Transocean and Halliburton, to finish and present their own internal investigations. Then all the separate investigations can be combined into a comprehensive understanding of the accident and its consequences.

Based on the self-congratulatory tone of the meetings, one can expect the OSC to consider its report the last word on policy going forward. Congress should disabuse them of that notion in no uncertain terms. The OSC should be viewed as just one more lobby trying to influence the public policy that needs to be set by The People's elected representatives, not some bureaucrats in the executive branch. It is also important to note that the executive branch played an active, real-time decision-making role in the response to the oil spill and therefore needs to be subjected to independent scrutiny under the separation of powers principle.

One may imagine that an administration so fond of czars might bristle at the thought of being subjected to intense congressional oversight, but the stakes are so high that Congress must strongly assert its power and responsibilities. So how might Congress go about humbling the narcissists of the West Wing? Let's take a look at a staff recommendation from each day of the meetings.

The New Orleans Times-Picayune continues to be a resource for those seeking information on the status of the investigations, as the people there are both the victims of the oil spill and the beneficiaries of the offshore drilling industry. Here is an excerpt from their report on the December 2 proceedings

Based on the discussions at Thursday's meeting, it appears nearly certain that the commission's call for increased attention to safety will include a recommendation that the inspection of drilling operations, and oversight of the safety and environmental soundness of those operations, be placed in the hands of the an independent safety and environment authority. It would be run by a nonpolitical administrator with a fixed five-year term who could either report directly to the Secretary of the Interior or operate outside his jurisdiction.

"Let me say as emphatically as I can: the oil and gas industry needs to embrace a new safety culture," said Reilly at the meeting, which was held a few blocks from the White House and was Webcast but not otherwise open to the press or public. "The series of decisions that doomed Macondo evidence a failure of management, and good management could have avoided the catastrophe."

"We're not dealing with a sick or failing or unsuccessful industry but with a complacent one," Reilly said.

The staff went on to describe their intent that the "independent safety" authority would resemble the National Transportation Safety Board, which has played such an important role in improving the safety of the airline industry. Totally missing from the staff report was the fact that Congress has already empowered such an agency, the U.S. Chemical Safety Board, to complete an investigation of the BP/Transocean Deepwater Horizon Oil Rig Blowout. Republicans ought to ask about this: why grow the government when there already exists a government entity with the technological expertise that the OCS admits the Interior Department lacks?

Given all the media attention to BP's history, particularly the 2005 Texas City refinery explosion, one might have expected that the OSC staff would have been aware of the existence of the CSB and its current investigation for Congress! It seems that the enormous self-regard of the OCS has put the blinders on when it comes to assessing the role of the executive branch in this disaster.

It is also worth noting that the financing for the commission comes out of the Energy Department budget and that Energy Secretary Steven Chu was the individual who aborted the top kill operation when it seemed on the verge of success, having "stopped the hydrocarbons from coming up the well bore," in the words of National Incident Commander Thad Allen. It is highly suspect that the OSC has not required Secretary Chu to submit a detailed report on his actions under oath in the same manner as Admiral Allen and the employees of BP, Transocean, and Halliburton have done. Checks and balances demand that Secretary Chu be put under oath before Congress.

The general context of the December 3 meeting was to discuss divvying up the money BP will have to pay in fines. The news from this meeting is presented in the Times-Picayune article "BP disputes government estimates of volume of Gulf of Mexico oil spill":

BP believes that the amount of oil that gushed out of the Macondo well in the Gulf of Mexico may be as little as half what the government now estimates, the deputy chief counsel of the National Oil Spill Commission informed the commission on its last formal day of meetings Friday.

"BP has not offered its own numbers yet, but BP has told us that it thinks the government's numbers are too high," Priya Aiyar told the commissioners, some of whom seemed stunned by the revelation. "It thinks the actual flow rate could be 20 to 50 percent lower." [SNIP]

"They're going to argue that it was 50 percent less than that possibly?" former Florida Sen. and Gov. Bob Graham, co-chairman of the commission, asked Aiyar. "Wow."

The idea that BP will argue about the total volume estimate will not come as news to AT readers who have seen the video of the inside of the blowout preventer. Once again, the OSC displays its ignorance of the facts, though the video was taken under the watchful eye of the executive branch the commission represents. A further demonstration of incompetence was the admission by the staff that they could not tell the commissioners the status of Kenneth Feinburg's consultations with "the litigator" regarding whether proximity to oil would affect compensation to claimants. Yet the results of that consultation have been publicly reported and indeed have already been codified into paragraph II (G) of the Gulf Coast Claims Facility Protocol:

G. Causation

The GCCF will only pay for harm or damage that is proximately caused by the Spill. The GCCF's causation determinations of OPA claims will be guided by OPA and federal law interpreting OPA. Determinations of physical injury and death claims will be guided by applicable law.

Clearly, the new Republican House has a lot of work to do to save the offshore oil industry from the incompetence of the Obama administration.