The leak started 30 days ago, oil as thick as paint is washing up on the shores of Louisiana and there are plumes of oil deep underwater poisoning the ocean and threatening the Florida Keys and the east coast. There have been many attempts to stop the leak and it appears that it won’t be capped for a long time to come. This disaster is killing all kinds of wildlife and will change the whole ecology of the Gulf as well as its economy for many, many years if not longer. Knowing that the consequences of a spill like this are so disastrous why was the Deepwater Horizon given a categorical exclusion from environmental analysis under the National Environmental Policy Act (NEPA)?
Under NEPA there are basically 3 levels of review a project can undergo. First, NEPA requires that an agency determine if the project is covered under NEPA, if it is not then the project is given a categorical exclusion. Second, if the project is covered under NEPA, the agency must determine whether it would have any significant environmental effects, if it doesn’t then the project is issued a Finding of No Significant Impact (FONSI) and an Environmental Assessment (EA) is prepared. Finally, if there are significant impacts then an Environmental Impact Statement (EIS) must be prepared.
The fact that the Deepwater Horizon was given a categorical exclusion is contrary to the guidance given for NEPA in the 2004 MMS Departmental Manual which says that a categorical exclusion should not be issued if the lease or exploration is:
(1) In areas of high seismic risk or seismicity, relatively untested deepwater, or remote areas; or
(2) Within the boundary of a proposed or established marine sanctuary, and/or within or near the boundary of a proposed or established wildlife refuge or areas of high biological sensitivity; or
(3) In areas of hazardous natural bottom conditions; or
(4) Utilizing new or unusual technology.
Here is some perspective. Recently, Western Watersheds Project settled on a lawsuit with the BLM, also an agency under the Department of Interior, over the issue of using categorical exclusions on grazing permit renewals. The BLM can no longer issue categorical exclusions on even the smallest grazing leases, they must do at least an EA but we argue that they should do an EIS since the practice is so harmful to the land and habitat.
When put into this perspective with how other projects are treated, it seems negligent that the Deepwater Horizon was given a categorical exclusion from NEPA. The Deepwater Horizon had the potential for far greater environmental consequences than was acknowledged and we can see the damage that has been caused by this extremely negligent disaster. Will anyone be held accountable? It was well known that the MMS had serious corruption allegations against it before Obama appointed Salazar as the Secretary of Interior, and Salazar said he would address those issues. He didn’t, and now we are facing one of the worst, if not the worst, environmental disasters our country has ever faced. I think Salazar is woefully unprepared for this position and should step down.
You can read more:
Sheldon Whitehouse Lists the NEPA Exclusions | Emptywheel.