Saturday, May 7, 2016

BP's Macondo: Spill and Response

In the fall of 2010, policymakers in Washington were thinking of revamping the U.S. regulatory system for offshore oil exploration. A disaster at BP's Macondo well in the Gulf of Mexico earlier in the year had led to the largest offshore oil spill in U.S. history, and cries for change were everywhere. President Barack Obama had devoted his first oval office speech to the subject, and his administration had instituted a moratorium on all deepwater drilling. (See Exhibit 1 for excerpts from Obama's speech, and Exhibit 8 for a list of directly affected companies.) In addition, Interior Secretary Ken Salazar had divided the Minerals Management Service (MMS) into three offices. One would collect royalties, one would lease oil resources, and one would regulate drilling (though the last two would report to the same assistant secretary).
Meanwhile, in Congress, many bills had been introduced. Several sought to punish BP, a few by raising the liability limit of offshore accidents (retroactively to April 15) from $75 million to $10 billion, others by preventing firms that had an accident history similar to BP's from future exploration and production of oil in the United States. Other bills changed U.S. government institutions. One, for example, created a special-purpose organization in charge of responding to future oil spills. As policymakers thought about these proposed changes, they needed to take into account the role of offshore drilling in the U.S. economy and the lessons they should draw from the spill.
On the evening of April 20, 2010, the well at Mississippi Canyon Block 252 (the Macondo prospect) seemed nearly complete. The Deepwater Horizon rig had reached its goal of digging 13,000 feet starting at a sea depth of 5,000 feet and had found oil 41 miles off the coast of Louisiana. Its goal was now to plug the well so that it could be open later for production. As it was completing the final steps, there was a blowout: a column of methane traveled up the well and exploded. Chaos ensued, with crew members moving into lifeboats or even jumping into the ocean without waiting for instructions. Of the 126 crew members onboard, 11 died. The $560 million rig sank while a mixture of oil and gas spewed from the drill hole at the bottom of the sea. By the Lime the flow of oil was stopped on July 12, 2010, the U.S. National Oceanic and Atmospheric Administration estimated that 4.9 million barrels of oil had come out of the hole.The causes of the blowout were still somewhat uncertain in the fall of 2010. At the hearings conducted jointly by the U.S. Coast Guard and the Interior Department to find out what had happened, several witnesses refused to testify. While the hearings were purely investigative, many civil lawsuits had been filed already and the possibility of criminal prosecution was in the air. Much effort was thus spent shifting blame. Anadarko, a 25% minority partner in the project, squarely blamed BP's "reckless" decisions concerning, for example, the well's design.
BP sought to shift some of the blame to Halliburton, a contractor in charge of cementing the well. After drilling an oil well, workers dropped a tubular metal casing in it to stabilize the hole's walls and then inserted cement around the casing. (See Exhibit 2 for a diagram.) Cement was also used at Macondo to temporarily plug the well so that it could be abandoned until the well was put into production. Mistakes in these cementing processes might have allowed methane to escape. A Halliburton employee suggested that cement failures might have been due to BP's using too few centralizers. BP, for its part, issued a statement saying, "If Halliburton had significant concerns about its abihty to provide a safe and high-quality cement job in the Macondo well, then it had the responsibility and obligation to refuse to perform the job. To do otherwise would have been morally repugnant."1
What seemed certain was that the well had posed problems for some Lime; an engineer had even sent an e-mail calling it a "nightmare well." As a result, it was behind schedule and over budget. On the day of the explosion, some pressure readings were unusual. This led to arguments, some of which were between BP employees and employees of Transocean, the company that owned the rig. In the hearings, there was some jostling concerning which of the two companies had responsibility for which decisions. It was recognized that BP had ultimate authority, but BP claimed that Transocean employees determined much of what went on in the rig.
In drilling an oil well, workers pushed a material called drilling mud down through the drilling string; the mud helped the drilling process itself and was supposed to be heavy enough to help keep gas and oil from rising through the well. In a decision that may have been fatal, crew members at the Macondo well chose to take only limited readings before replacing much of the well's drilling mud with seawater. Pushing down lighter seawater to recover the mud for future use may thus have made it easier for methane to escape. While several commentators second-guessed this replacement decision, it was part of a plan that the MMS had approved just a few days before.2
The well's last line of defense, the blowout preventer (BOP), had clearly failed. BOPs sat on the seafloor and contained several redundant pieces of equipment that were supposed to close wells in emergencies. When the BOP at the Macondo well failed to work, BP dispatched underwater vehicles to turn it on from below. This effort was also in vain, and BP blamed the failure on Transocean's modifications of the BOP at the Macondo well. Some people speculated that the problem lay in the BOP's batteries; others suggested that the BOP had in fact been activated but that it had closed the well only partway. Some of its elements might have been unable to fight the strong pressure of the oil rising through the well, while the ultimate line of defense, the shear ram, might have had trouble cutting through the drilling pipe itself.
Drilling crews regularly tested BOPs by interrupting the drilling, closing the well using various components of the BOP, and applying pressure. These tests, which took about eight hours, sometimes revealed problems. A 1999 study reported 117 BOP test failures (of which 20 were safety critical) in a sample of 83 gulf wells operated for 4,009 BOP days. The Deepwater Horizon's BOP had been tested in this manner on April 10. The industry had been pushing the MMS to reduce the frequency of BOP testing, and a consultant's study sponsored by the MMS and the industry agreed that some testing intervals could be lengthened.3
Following the blowout, BP immediately sent skimming vessels and aircraft to the area. The latter released chemical dispersants, whose purpose was to separate oil molecules so that they could be more easily digested by bacteria. Environmentalists were concerned about both the leaking oil and the dispersants, but BP's CEO, Anthony (Tony) Hayward, said, "Given the current conditions and the massive size of our response, we are confident in our ability to tackle this spill offshore." At the time, BP and the U.S. Coast Guard estimated that the spill was spewing 1,000 barrels a day (b/d) of crude oil.4 A week later, the Coast Guard raised this estimate to 5,000 b/d and BP started to burn oil offshore. Environmentalists questioned this estimate also, but BP held to it for a month, even after it had managed to attach a tube to the leaking pipe that was siphoning off about 1,000 b/d. Eventually, it was thought that the Macondo well had been leaking about 60,000 b/d.5
The oil reached shore around May 1, prompting Louisiana, Florida, Alabama, and Mississippi to declare states of emergency. Oyster beds and shrimping grounds in Louisiana were closed, and lawsuits started to be filed against BP. Hayward accepted responsibility for paying for the cleanup operation, noting, "Where there are legitimate claims for business interruption, we will make them good." With polls saying that 70% of respondents disapproved of BP's handling of the situation, Attorney General Erie Holder announced that he was looking into filing criminal charges. The White House's press secretary, Robert Gibbs, said, "We will keep our . . . boot on the throat of BP to ensure that they're doing all that is necessary while we do all that is humanly possible to deal with this incident." Some commentators from the United Kingdom complained that the anti-British rhetoric was going too far, in part because some U.S. policymakers referred to BP by its pre-1998 name of British Petroleum.6
At around this Lime, the federal government designated the spill as having national significance and named Coast Guard head Thad Allen as incident commander. The increased federal responsibility led state officials to blame both BP and the federal government for the insufficient supphes of boom, a vinyl material meant to keep oil from physically reaching beaches. The governor of Alabama, Bob Riley, was particularly incensed when the Coast Guard took boom that his state had specially flown in from Bahrain and gave it to Louisiana. Even where boom deployment was approved by the Coast Guard, coordination with BP contractors often led to delays. The governor of Louisiana, Bobby Jindal, was also angered by the federal government's initial refusal of a permit to build sand berms to prevent the oil from reaching shore. Eventually, the federal government relented, and a little later Allen ordered BP to pay for the berms.7
Some Republican commentators drew parallels with the government's response to Hurricane Katrina, which Democrats had criticized as being insufficiently vigorous. In a poll at the end of May, only 35% of respondents approved of the administration's response to the spill, while 45% disapproved. Sentiment had also turned against offshore drilling. While 64% had favored increased drilling in 2008, only 45% were so disposed now. (See Exhibit 7 for other polls.) At this point, Obama sought to extend a moratorium on deepwater drilling for an additional six months. 8
In mid-June, Obama chose the gulf spill as the topic for his first national address from the Oval Office. The speech sought credit for the government's efforts, assured viewers that BP would pay for what it had done, and promised to return the gulf to a pristine state. The next day, June 16, Obama met BP executives in the White House. At the meeting they signed an agreement under which BP would put $20 billion in an escrow account for the purpose of compensating victims of the spill. BP and the White House agreed that this fund would be administered by Kenneth Feinberg, an
arbitrator who had determined the payments made from the $7 billion fund the government set up to compensate the victims of the September 11, 2001, terrorist attacks.
BP was to deposit $3 billion into the fund in the third quarter of 2010, with the rest coming later. It was also to stop issuing dividends for 2010 and start selling assets. Obama announced that BP would set aside an additional $100 million to compensate workers who had been negatively affected by the administration's deepwater drilling moratorium. The administration had been suggesting that BP should pay the damages to these workers in full, so this agreement represented a small retreat in its requests. Having lost about $91 billion in value since the explosion, BP's stock price rose slightly on the day of this announcement.9 (See Exhibit 3 for BP's stock price from April to September 2010.)
When Tony Hayward next appeared in front of a House of Representatives panel, most members lashed out at him. In reaction to the lashing-out, Texas representative Joe Barton, the ranking Republican on the energy committee, said, "I'm ashamed of what happened in the White House yesterday. I think it is a tragedy of the first proportion that a private corporation can be subjected to what I would characterize as a shakedown, a $20 billion shakedown." After a furor, Barton apologized for his comment. Individual donations to Barton's fah 2010 reelection campaign dropped from past levels, although his donations from political action committees (several of which were funded by oil and gas companies) rose.10
BP's first major effort at controlling the leak consisted of placing a giant funnel on top of the blowout area to capture the spewing oil. Such methods had succeeded in shahow waters, but the low temperature at Macondo's seafloor impeded success. Later, BP attempted to clog the leaking pipe by shooting a mix of materials into it. Meanwhile, BP was drilling a weh parallel to Macondo. The idea was to reach the same depth as Macondo, then bore horizontally, perforate Macondo, and fill it with cement from the bottom. BP expressed confidence that drilling a relief weh would work, though some observers pointed out that this approach had sometimes proved slow due to the difficulty of finding the original weh when boring horizontally. Before the relief weh was ready, BP succeeded in capping the Macondo weh by placing a new blowout preventer on top of the one that had failed. After this, BP let cement flow into the weh through the new BOP and, when the cement solidified, removed both BOPs. The government supervised these activities closely. When BP was criticized for not having applied its successful solution more promptly, it pointed to an earlier government veto of the plan; the government had been concerned that the cap might cause an underground blowout.11
From early on, BP had engaged in an extensive public relations drive to communicate its efforts at dealing with the spill and its commitment to make things right. It had not only purchased traditional advertising but made sure that links to its own stories were widely available on the Internet. Unfortunately for BP, the media paid much more attention to what were seen as signs of insensitivity. At one point in an interview, Hayward had said, "There's no one who wants this thing over more than I do. I'd like my life back." He later apologized for that comment; still, BP replaced Hayward with Robert Dudley at the end of July. Dudley, who had not had direct responsibility over either oil production or refining, would become the company's first American CEO.12
In 2009, BP's revenues of $367 billion placed it fourth on the Fortune 500 ranking of America's largest corporations (after Sheh, ExxonMobil, and Walmart) and its profits for that year totaled $21 billion. While its oil-based products constituted the bulk of BP's revenue, its slogan "Beyond Petroleum" played up the fact that the company had made substantial investments in solar panels and wind-power generation. The company's origins went back to its exploitation of Iranian wells at
the beginning of the 20th century. It changed its name from the Anglo-Persian Oil Company to British Petroleum in 1954, after Iran expropriated its fields. The British government owned a substantial stake in British Petroleum at the time, though the company was subsequently privatized. It later acquired the assets of several large U.S. oil companies and thereby became a major refiner and gasoline retailer in the United States. In 2010, its U.S. wells in the Gulf of Mexico accounted for 11% of its production.13
CEO Tony Hayward started BP's 2009 annual report by saying, "Our priorities have remained absolutely consistent—safety, people and performance — and you can see the results of this focus with improvements on all three fronts." The report stated that "safety is BP's number one priority" and Hayward noted that, in 2009, the number of oil spills (234) and "recordable personal injuries" (0.34 per 200,000 hours worked) were the lowest in 10 years. Safety measures determined 15% of one of the bonuses given to executives, headcount and employee satisfaction determined another 15% of this bonus, and financial and operational outcomes determined the remaining 70%. DeAnne Julius, chair of BP's remuneration committee, noted that in 2009, "Nearly all targets were exceeded, some substantially, with particularly strong performance on cost reduction, exploration success, production startups and refining performance."14
Hayward had reason to be happy with this performance, particularly in deepwater fields (those that lay beneath 1,000 feet of water), which were regarded as the areas of highest potential for oil exploration. By 2009, BP had become the largest deepwater producer in the world as well as in the Gulf of Mexico, where it extracted about 400,000 barrels of oil a day. In September 2009, it proudly announced a giant find at the Tiber well in the gulf. This well, one of the deepest ever (approximately 35,000 feet of total depth) had been dug by the Deepwater Horizon. BP was its operator, while U.S.- based ConocoPhiUips and the partially state-owned Brazilian company Petrobras had minority stakes.
BP also had an active research program. Five days after the Macondo explosion, BP was granted a patent on a new method for testing blowout preventers. BP's patent covered a method that cut the required time for these tests by using a digital algorithm rather than relying on crude visual observations. BP had validated this test with data from the Deepwater Horizon and had requested that the U.S. Minerals Management Service allow this new testing method to replace the traditional one.15
Before Hayward became CEO, BP's safety record was far from exemplary. In 2001, workers at the Prudhoe Bay oil fields in Alaska complained that, as a result of poor maintenance and staff reductions, many critical valves were not being properly tested and did not close properly. The particular spill they regarded as emblematic was initially dismissed by BP as being like a minor "leaking faucet" that had fueled a "candle-sized" flame. A subsequent investigation by BP and a team of consultants revealed that 10% of BP valves failed to pass state tests and that BP's testing often did not follow the company's own written procedures.16
In March 2005, oil gushed out of a relief tank at BP's Texas City refinery; the resulting explosion killed 15 people. While various pressure readings before the explosion were anomalous, operators did not understand them well enough to prevent the accident. According to U.S. federal investigators, numerous safety system deficiencies lay underneath these human errors. The U.S. Chemical Safety Board (CSB) noted that the Occupational Safety and Health Administration (OSHA) had, at one point, asked for the replacement of the relief equipment that failed. BP convinced OSHA that it should be allowed to make a cheaper change, though OSHA, in turn, never carried out the inspection of the change that it had originally demanded. Beyond blaming the accident on particular
equipment failures, the CSB blamed it on maintenance budget cuts, worker fatigue, a routine tendency not to follow written procedures (while still checking boxes as required by procedures), a bigger focus on personal safety (shps and falls) than on process safety, and a culture that did not encourage the reporting of safety incidents.17
Under Hayward, BP settled all the lawsuits brought against it for the March 2005 explosion, including those brought by the government. It agreed to plead guilty to one felony violation (for not following proper procedures) and to pay record fines to OSHA ($21 million) and for violations of the Qean Air Act ($50 million). It also agreed to modify its procedures and make major investments.
Some vii tims sought to have the agreement with the government scrapped on the grounds that the penalty was too slight and that BP was not complying with it. While OSHA sided with BP at the end of 2008, saying that "BP has and is making progress at the facility," it proposed another $87 million in fines in October 2009 on the basis of 270 failures to comply with its earlier agreement and 439 new violations. BP agreed in August 2010 to pay part of this fine. Contrary to OSHA, BP still claimed that its system of pressure relief valves met industry standards.18
As of 2010, deepwater oil production accounted for about 6.4% of the 84 million barrels a day of global oil production. (See Exhibit 4 for in formation about the main producers and consumers of oil.) About a fifth of deepwater oil production came from the Gulf of Mexico, while a quarter came from Brazil, where huge reserves had been found recently. Because about half of new oil discoveries in the last few years had been in deepwater, many observers expected the importance of deepwater to grow over Lime. In the United States, deepwater production had risen so rapidly in the recent past that, after years of declines, the country had recently experienced some growth in total production. The overall growth had occurred even though production in the shallow waters of the Gulf of Mexico continued to decline. Major oil companies were excited about deepwater in the United States. While the drilling costs were obviously larger than in shallow water, the wells tended to be much more productive.19
Another important trend was that exploration and production made increasing use of specialized contractors. In the case of deepwater drilling, it was common for a producer to rent the entire drilling rig from a company that also provided most of the rig's crew. This explains why of the 126 people aboard the Deepwater Horizon on the day of the April 20, 2010, explosion 79 worked for Transocean, 41 worked for other contractors such as Halliburton, and only 6 worked for BP.20
Transocean had Louisiana origins but had recently moved its headquarters to Zug, Switzerland, to reduce its corporate taxes. By the end of 2009, it had become the world's largest deepwater driller, with a fleet of 39 deepwater rigs. Of these, 13 were in the Gulf of Mexico. By one metric at least, Transocean's safety record in the gulf had worsened recently. Between 2008 and 2010, the company accounted for 73% of all deepwater incidents investigated by the Minerals Management Service even though it accounted for only 42% of the rigs. These two percentages had been more closely aligned before 2008.21
The United States also had underwater reserves elsewhere. After a 1969 blowout that spilled 5,000 barrels of oil six miles off the California coast at Santa Barbara, however, a combination of state and federal actions had prevented almost all new offshore drilling except off the coasts of Texas, Louisiana, Mississippi, and parts of Alaska. On March 31, 2010, Obama proposed to partially reverse this moratorium and open up some parts of the mid-Atlantic and Florida coasts.
In defending this proposal, Obama said, "We'll employ new technologies that reduce the impact of oil exploration. We'll protect areas vital to tourism, the environment, and our national security. And we'll be guided not by political ideology, but by scientific evidence." Many environmentalists were nonetheless opposed to this move, whereas Governor Bob McDonnell of Virginia said, "The president's decision to allow energy exploration off Virginia's coast will mean thousands of new jobs, hundreds of millions in new state revenue and tens of billions of dollars in economic impact for the commonwealth."22
Until 2010, the government managed the nation's offshore oil resources through the MMS. The MMS decided what areas to open for bidding, collected the resulting revenue, specified the requirements for drilling plans, and occasionally inspected rigs to verify that oil companies adhered to these plans. As a federal government revenue source, it was second only to the Internal Revenue Service. There was a widespread sentiment that the MMS had too few resources to be effective. A report by the Department of Interior questioned whether the MMS had staff "with the requisite expertise to review and vet standards" developed by trade associations. According to the report, almost half the inspectors said they had insufficient training for their job. Between 1983 and 2007, the inspection staff had been cut by 36% while the number of leases soared. As a result, there were only 55 inspectors assigned to the 3,000 facilities in the Gulf of Mexico.23
One oft-expressed concern with the U.S. approach to offshore oil production was that it was too generous to oil companies. Several studies seemed to show this by comparing the government take in different jurisdictions. (See Exhibit 5 for an example of one such comparison.) Government take was defined as the ratio of a government's oil-dependent revenue over extracted oil's value. It thus included any payments that firms made for the right to drill, any royalty charged by the govern men L, and any tax on the profit of oil companies (including the economy-wide corporate profit tax). The precise mix of payments varied from one country to another. For example, Norway had imposed no royalties between 1992 and 2002 and gave out large investment tax credits to this sector. On the other hand, it required all offshore drilling to be made in a 50% partnership with a majority state-owned oil company (Statoil) and subjected the resulting profits to a 50% special corporate profit tax rate on oil over and above the standard 28% corporate profit tax rate.24
The low government take in the United States helped convince the Alaska legislature to increase its corporate tax rate on oil firms in 2006. Aside from corporate income taxes, the U.S. government take came in two forms. First, the MMS held periodic bids for tracts. Firms submitted sealed bids, and the MMS could then lease the tracts to the highest bidders for the amount bid. One important change in 1983 was that the United States increased the number of tracts, particularly deepwater tracts, it put out for bid on each occasion. The result was a sharp reduction in the highest bid per tract and in the number of bidders per tract. In the case of Lease 206 in 2008, which included Macondo, the MMS put 5,000 tracts out for bid and received 1,057 bids on 615 tracts. The MMS proudly noted that the high- bid total, $3.7 billion, was a record. The MMS had the right to reject bids but did so rarely.25
Second, well owners had to pay a royalty equal to a fraction of their production. The base royalty had recently been raised to 18.75%. A controversial program remained in place, however, by which companies drilling in deepwater could avoid royalties up to a production cap under certain conditions. Some economists theorized that, even though low royalty rates ought to lead to higher bids, low royalty rates would still lead to overall revenue declines. The reason they gave was that a reduction in the royalty rate should increase the dispersion in bidders' perceptions of the dollar
profits of individual tracts. Bidders would then have less to fear from shading their bids and would therefore bid less aggressively.26
Most offshore drilling regulations were spelled out in a 470-page block of the U.S. Code of Federal Regulations, which could be changed only after a period of public comments. In addition, the MMS issued supplementary Notices to Lessees (NTLs). A relatively small number of the drilling regulations involved specific details, such as "The drilling crew must have ready access to a wrench to fit each manual valve." There were also regulations mandating tests of equipment and of the well at predetermined intervals. The regulations listed a large number of industry standards, as specified in publications of trade associations such as the American Petroleum Institute, by which firms were supposed to abide. There were also regulations providing objectives such as "You must take necessary precautions to keep wells under control at all Limes." This was regarded as important enough that firms were instructed to "use the best available technology to monitor and evaluate well conditions." One area in which regulations were more specific was in stating the reporting requirements of drillers to the MMS. The MMS had to accept a drilling plan before lessees could drill. Lessees needed to report pollution and to seek approval for particular procedures, such as the method proposed by BP to temporarily cap the Macondo well. The MMS gave BP's proposal the go- ahead on April 16, 2010.
Drilling plans in the Macondo area of the Gulf of Mexico had been exempted from the requirement of giving a scenario describing a possible blowout. The MMS apparently did not find these scenarios in formative. Drillers did have to file an Oil Spill Response Plan, which had to include evidence that the driller had contracts with providers of needed services after a spill. Firms drilling in the gulf tended to file very similar plans. The CEOs of BP, ExxonMobil, Chevron, and ConocoPhillips were ridiculed by a congressional panel for having plans that discussed the protection of walruses even though there were no walruses in the gulf.27
Environ men Lalists complained that the MMS had exempted BP's drilling plan for the Macondo well from having to spell out its environmental impact. As the White House clarified some Lime later, the MMS had followed a standard procedure based on the MMS's already extensive environ mental impact analyses for all its proposed leases. In particular, an 85-page environmental assessment (EA) for Lease 206 had been written before bids were accepted. This EA discussed effects on air and water quahty, coastal regions, and marine life as well as recreational, archeological, and human resources. It provided estimates of the likely effect of the lease on these resources and discussed the steps lessees needed to take to minimize harm. It anticipated, for example, that 38 green turtles would die over the 40-year lifetime of the lease as a result of the drilling. The MMS prided itself on spending considerable resources on environ mental analyses.
The MMS also anticipated that the leases would have two to three blowouts, though it expected the impact of these blowouts to be minor. It said that blowouts "could have modest, short-term economic consequences" and "are expected to have temporary localized impacts on water quahty." Not everyone had been so sanguine. At hearings in November 2009, Senator Robert Menendez had pointed to a photograph of an Australian rig in flames and had asked whether he was "just being old- fashioned" in worrying about the possibility of a similar blowout in the gulf.
The dramatic Australian blowout, at the Montara well in the Timor Sea, had leaked 2,000 barrels a day for 74 days before it was stopped. The MMS's deputy director, Walter Cruishank, responded to Menendez by saying that U.S. regulatory requirements "should have prevented the drilling operations in the Timor Sea, as we understand them." He pointed particularly to the pressure tests
that the United States required after cementing jobs that "would have likely identified the problem with the primary cement job on the Timor Sea well."28
Another reason for the MMS's optimism was that past spills from platforms in U.S. waters had been small. A report that the MMS commissioned in 1993, titled "Moving Beyond Conflict to Consensus," noted that "90% of the wells in the Gulf of Mexico required artificial lifting of their oil with pumps or the use of gas. . . . Such reservoir characteristics make extremely large spills improbable."29 Although not in U.S. waters, a blowout had caused a 3-million-barrel spill in the gulf in June 1979. The Ixtoc spill had occurred in 160 feet of water off the coast of Mexico. The well's blowout preventer had failed, as had initial containment efforts, and so Ixtoc spewed oil for almost 10 months.
Critics who accused the MMS of being too cozy with industry could point to a 2008 government report concerning its Lakewood, Colorado, office. This office administered a controversial in-kind royalty program in which the MMS took delivery of oil and had to market it itself. According to the report, 8 of the 60 staff members at the facility had accepted gifts from oil companies in excess of the allowed $50 a year, and there were some inappropriate relations between staff and oil executives. The report painted the office's organizational culture as "lacking acceptance of government ethical standards." One of Ken Salazar's first acts as interior secretary was to visit the Lakewood office and give a stem speech in which he said, "The 'anything goes' will end."30
Some congressional leaders renewed their cries of outrage at the publication in 2010 of a new investigative report. This one said that, before 2007, a number of employees at the Lake Charles, Louisiana, facility in charge of offshore inspections had received gifts from oil company executives. It noted, however, that the "culture of acceptance of gifts" appeared to have declined after one employee was fired in January 2007.31
These episodes notwithstanding, the oil industry did not always agree with the MMS. An analysis of accidents had convinced the MMS that firms should be required to have a Safety and Environ men Lai Management System (SEMS) focused on four areas: studying rigs to minimize uncontrolled releases of oil and gas, determining the possible adverse environ men Lai consequences of modifications, reviewing operating procedures, and setting up procedures to ensure the use of environ mentally sound equipment. The MMS proposed specific SEMS regulations in 2009 and BP, Chevron, and ExxonMobil responded with critical comments. They agreed that SEMSs were useful, but they preferred a voluntary American Petroleum Institute (API) standard that the MMS had deemed valuable in the past and with which they already complied. They objected that the rules now proposed by the MMS were too prescriptive and therefore burdensome.32
On March 24, 1989, the tanker Exxon Valdez struck a reef near the coast of Alaska and spilled around 500,000 barrels of oil. In part because the area was remote, the response was slow. The results included contamination of about 1,300 miles of coastline, deaths of about 250,000 birds and 2,800 otters, and recovery of natural habitats that took years. Exxon paid for the cleanup itself. A jury initially required Exxon to pay $287 million in compensatory damages and $5 billion in punitive damages. Exxon appealed the punitive damage award all the way to the Supreme Court, which in 2008 cut the punitive damages to about $500 million. While the captain of the Exxon Valdez had previously been an alcoholic, had been absent from the bridge when the tanker ran aground, had been seen drinking on the evening of the accident, and still had significant alcohol in his blood 10.5 hours after the accident, he was ultimately cleared of almost all charges filed against him. Explaining why he was found guilty only of a negligent discharge of oil, and not of "reckless endangerment," a juror said, "Reckless, no; negligent, possibly."33
Congress reacted to the Exxon Valdez spill by passing the Oil Pollution Act of 1990, a law that resembled bills that had been introduced before while also prohibiting any ship that had spilled more than 1 million gallons of oil after March 22,1989, from operating in Alaska. This law put the federal government in charge of significant offshore oil cleanup operations while still requiring firms that caused oil spills to pay for the cleanup costs. It also limited these firms' liability for damages. In the case of oil tankers, this liability cap depended on the vessel's tonnage while it equaled $75 million for offshore facilities. This cap did not apply, however, if the spill was caused by gross negligence or willful misconduct or by the violation of a federal regulation. The cap had been binding in the case of several shipping accidents. Consistent with the 1990 law, further damages had been paid by the government from the Oil Spill Liability Trust Fund, which was funded by a tax on imported oil. When he was appointed head of the Coast Guard, Thad Allen said that the fund had $1.6 billion.
Several witnesses at hearings for predecessors to the Oil Pollution Act of 1990 had argued for modest liability caps on the grounds that operators needed to prove they could cover their liability before operating. They further said that insurance companies would charge high premiums (or refuse to insure) companies subject to large liability payments. The result, they claimed, would be "that only the largest global corporation could afford the expense. This would drive out competition and cause monopolistic pricing and practices."34
BP might also be required to make two additional kinds of payments. First, it might have to compensate the MMS for its share of the oil that BP had involuntarily "extracted." Second, BP could expect fines for spilling oil under the Clean Water Act. The minimum for these fines was normally $1,100 per barrel spilled, with a maximum of $4,300 per barrel if the spill was due to gross negligence.
Several of the lawsuits filed after the Macondo explosion pursued Transocean, on the grounds that it had contributed to the accident. Transocean, however, had gone to federal court in an attempt to curb the impact of these suits. It argued that an obscure maritime law of 1851 limited its overall habihty to the remaining value of the vessel and its cargo, which it calculated to be $26.9 million because the rig itself was now worthless. Some observers speculated that Transocean would benefit from filing this claim even though it was unlikely to prevail because the statute required that the loss be due to forces outside the firm's "privity and knowledge."35
While the oil exploration business was global in scope, each individual country had its own regulatory structure. Nonetheless, there were similarities among different countries' regulations. Canada and the United Kingdom, for example, also required firms to pay cleanup costs for spills while limiting their liability for the damages caused by those spills. In the United Kingdom, regulations had been changed after 167 people were killed in 1988 by the explosion of the Piper Alpha platform. One change was that regulation and oversight were moved from the Department of Energy to the Health and Safety Executive. Robert Paterson, an executive at a trade association, said, "The disaster prompted the [UK] government to change its set-up from a very prescriptive regulatory environment towards a more goal-setting system."36
The Norwegian approach evolved similarly. Norway moved its regulation and oversight function from the Ministry of Petroleum and Energy to an organization called the Petroleum Safety Authority (PSA), which belonged to the Ministry of Labor. Norwegian drillers were required to have a demonstrable management system in charge of compliance. Moreover, the PSA's regulations prescribed goals such as "Well control equipment shall be designed and shall be capable of being activated so as to provide for barrier integrity as well as control" and "Facilities shall be designed so that no employee is exposed to noise that is harmful to hearing." The PSA also provided more
detailed guidelines. These were not mandatory, though firms that did not abide by them needed to be able to justify why their approach was equally good. These guidelines required blowout preventers to be fitted with remote acoustic switches. All drillers used such switches in Norway, though alternative control systems were acceptable as well.37
After a fire on a platform killed 11 people in 2007, the Brazilian government also required the use of remote acoustic switches in BOPs. In the United States, the MMS considered mandating such switches but did not act, perhaps because a 2003 study that it commissioned said that "acoustic systems are not recommended because they tend to be very costly."38
Oystein Noreng, a professor of petroleum economics at the BI Norwegian School of Management claimed that the Norwegian regime had better performance than the U.S. one, with one example being that its oil spills from production were lower as a fraction of total production. (See Exhibit 6 for a comparison of offshore drilling activity and accidents.) He attributed this not only to Norwegian rules but also to the influence of Norwegian unions. In Norway, elected labor representatives looked after safety and had the right to stop operations.39
In early August 2010, the U.S. government announced that only about a quarter of the spilled oil from the Macondo well remained in the water. The number of oiled birds found dead or alive was about 7,000. Some environmentalists continued to express concern about the possibility of adverse long-term impacts, even as the visible damage appeared modest relative to that of the Exxon Valdez spill. They pointed, particularly, to an oily dead layer of several centimeters that covered the seafloor in areas near the spill. On the other hand, a government study had found only 35 miles of the Louisiana coast to be heavily oiled and observers deemed the damage to the coast mild relative to its continued destruction by the reengineering of the Mississippi River. An expert from Louisiana State University declared, for example, "This looks fairly minor." The difference between the Macondo spill and the Exxon Valdez spill was attributed to favorable currents, to the lightness of gulfs oil and to the gulf's higher temperatures, which aided in the oil's decomposition. An additional difference between the gulf's and Alaska's ecosystems was that natural seepage of oil from the seafloor was relatively common in the former.40
In spite of dire predictions that the drilling moratorium would lead to a massive exodus of drilling rigs, only 2 of the 33 deepwater rigs in the gulf had departed by the end of August. Moreover, the workers in the remaining rigs had not lost their jobs. People working in the paralyzed seafood and tourist industries did not fare as well. To take care of all those who had lost income as a result of the spill, BP had set up 35 offices to process their claims. These offices had made $399 million in payments before Kenneth Feinberg took over as administrator at the end of August 2010.
This late start had given Feinberg an opportunity to hear a range of opinions regarding how payments should be determined, and he had, in turn, started to announce the criteria he intended to apply. Feinberg decided that claimants could ask for six months of emergency funding and receive it without forgoing their right to ask for more. They then had three years to ask for a lump-sum final settlement. Feinberg would then make them an offer conditional on promising not to sue BP (and possibly other companies) for the explosion. In an effort to convince people to file claims under his process, Feinberg said, "I'm determined to be more generous than any state court will be or any federal court."41
At the end of August, Feinberg publicized that ehgibihty for payments would depend on the claimant's location and industry. His decision to base payments on geographic proximity to the spill was met with heated opposition. Even though most of Florida's coast was far enough from the spill to be undamaged, Florida hotel owners claimed that they had lost business because potential tourists were afraid of finding their beaches sullied. An industry representative said, "It's clear that the spill is going to cost Florida's tourism billions of dollars," and the governor of Florida asserted that BP could end up owing $1 billion in lost tourism taxes. 42
Outside the United States, the response to the spill was fairly muted. Govern men Ls promised to review their regulatory structure and to study the lessons of Macondo, but almost all of them kept their drilling programs, including their deepwater programs, on track. Norway did ban the start of new deepwater wells, but it made clear that the ban was temporary and leased new deepwater tracks in June 2010.43
The Minerals Management Service was reorganized in June 2010; the new organization in charge of regulating offshore drilling, the Bureau of Ocean Energy Management, Regulation and Enforcement (BOEMRE), issued new regulations on October 14 and officially lifted the deepwater moratorium. Industry members were concerned, however, that the moratorium would continue de facto unless the agency hired additional personnel to process applications. This worry was also fueled by the unusually slow pace at which shallow-water wells had been approved since April 20.44
The new regulations required drillers to obtain certificates from approved engineering firms. These would vouch that blowout preventers and cementing plans fulfilled certain specifications. In addition, more documentation was required, further tests of BOPs and cementing jobs were mandated, and rig workers were ordered to obtain more training in well control. BOEMRE estimated that this would cost the industry $183.1 million annually. Using historical data, it estimated that a major spill costing $16.3 billion could be expected to occur once every 26 years, so that the annualized cost of spills was $631.4 million. While it recognized that the new regulations would not reduce the probabihty of these events to zero, it still thought the benefits of its rule exceeded its costs.45
Congress, meanwhile, was considering a large number of bills concerning offshore drilling. Some were targeted at BOPs, and wanted these to have acoustic shut-off technology or use the best available and safest technology. Others wanted to repeal retroactively the 1851 Limitation of Liability Act, which Transocean was using for protection. Still others wanted to increase safety by providing additional protection to whistleblowers. BP, for its part, sought to thwart congressional efforts to curtail its future operations by, for example, making permits to drill conditional on not having had more than 10 fatalities in a facility and not having had to pay more than $10 million in fines for violations of the Clean Air or Qean Water Acts.
David Nagle, BP's executive vice president for BP America, responded to this legislation by saying it would make it harder to "fund things, fund these programs." He was referring to BP's willingness to honor a variety of requests from state officials. Responding to such requests, BP had already donated $32 million to Florida's marketing efforts and $15 million each to Alabama, Louisiana, and Mississippi. It was currently contemplating Louisiana governor Bobby Jindal's call for $173 million to test, certify, and promote Gulf of Mexico seafood. Faced with these conflicting pressures, policymakers both in the White House and in Congress needed to think about how they wanted to reshape the offshore oil industry.46

“BP’s Macondo: Spill and Response”
1) What were the underlying cases of the spill?
2) Evaluate the political and economic logic of the $20 billion fund from both President Obama and BP’s point of view.
3) Should the U.S. government change the way that it regulates this industry?

No comments:

Post a Comment