American Energy. Walter A. Rosenbaum

natural resource related expenses. Ongoing litigation, enough to employ a convention of lawyers, and large federal penalties for violation of the Clean Water Act, have driven some estimates of BP’s total expense close to $100 billion.

      Federalism With Raw Edges

      The Deepwater catastrophe from its inception was also a crisis of governance. Federal, state, and local governments are deeply implicated legally, economically, and politically in the production of every major source of American energy, and especially in the regulation of fossil fuel from exploration to consumption. Governmental collaboration in domestic energy management, while never ensured, has usually been cooperative. Here was an unprecedented regulatory disaster requiring an immediate federalized response—incisive, coordinated, and technologically sophisticated. Unfortunately, the Gulf explosion demonstrated that intergovernmental energy collaboration isn’t ensured.

      Since the Deepwater disaster was a federalized emergency, it quickly mobilized multiple governmental stakeholders. The peak of the response involved more than 45,000 individuals drawn from federal, state, local, and regional governmental agencies. What followed were weeks of difficult and often highly contentious efforts by the federal government to coordinate the rapidly multiplying array of other governmental stakeholders determined to protect their own interests.

      The National Contingency Plan (NCP) existed to coordinate federal, state, and local governmental responses to such disasters. The governmental responses to the explosion, however, quickly degenerated into a persistent conflict between federal, state, local, and private interests about their respective roles and responsibilities as each attempted to intervene in some manner to stifle the oil leakage and to minimize their own anticipated risks from the impending environmental and economic damage.

      The disaster plan called for the federal government, led by the US Coast Guard, to assume primary responsibility for controlling the spill and coordinating other governmental agency support. Other federal agencies quickly responding included the Department of the Interior, the Department of Homeland Security, the National Oceanographic and Atmospheric Administration, and the Department of Energy.

      All the state and local governments within the Gulf, especially those closest to the spill from Louisiana, Texas, Mississippi, and Alabama, were aggressively involved and immediately dissatisfied with the federal response and soon created a “considerable confusion, delay and controversy that still prevails.”⁴ The contention early reached a level that persuaded the Coast Guard’s Admiral Thad Allen, the very experienced and capable response Director, to warn his staff about the onrushing problems. “This isn’t a sprint, or even a marathon,” he cautioned, “this is a siege.”⁵ A final report on the Deepwater event noted the confusion:

       During this spill … the Governors and other state political officials participated in the response in unprecedented ways, taking decisions out of the hands of career oil-spill responders. … Because the majority of the oil would come ashore in Louisiana, these issues of control mattered most there. Louisiana declined to empower the officials that it sent to work with federal responders within Unified Command, instead requiring most decisions to go through the Governor’s office.6

      During the more than two months required to cap the stubborn oil leak, the local governments surrounding the Gulf also created their own, improvised responses to the spill without regard to whatever might have been prescribed by the National Contingency Plan. Louisiana’s county governments (called “parishes”), for instance, attempted to assume as much independence in controlling the leaked petroleum as the state had asserted. Many parishes purchased their own equipment and created their own disaster management organization. Numerous private organizations, as well, rushed to share in disaster management often without regard for the managers and strategy of the National Contingency Plan.

      ”A Different Disaster”: The Media Sends a Message

      The omnipresent national media powerfully influenced the public’s interpretation of the disaster and shaped profoundly much of the political repercussions. Once the national media had swiftly converged on the accident, they captured an enormous national audience for weeks while fashioning a narrative persuasively interpreting Deepwater’s significance and shaping a public verdict concerning the responsibility for the disaster.

      The Pew Research Center called Deepwater “a different kind of disaster” and observed that the spill “was a slow-motion disaster that exceeded the usual media attention span, commanding substantial media coverage week after week. From April 20 through July 28, the Gulf spill overwhelmed every other story in the mainstream media.”⁷ And the public was remarkably attentive. During three months following the explosion, an average of more than 54 percent on a major national poll reported that they were watching news of the catastrophe “very closely.”⁸ Media coverage, deliberately or not, also left most Americans convinced that BP was largely responsible for the tragedy— entirely responsible, according to many polls at the time.⁹

      The Challenge of Policy Reform

      For more than four decades preceding the Gulf event, a broad coalition of conservationists, environmentalists, and numerous allies had been waging a strenuous campaign to compel federal agencies to become more aggressive and rigorous in their regulation of domestic offshore energy exploration. Seven major Gulf oil spills had already occurred in the decade preceding the Deepwater incident.¹⁰ For the critics, the Gulf had become a flagrant example of environmental risk and laggard regulatory oversight. But progress was slow and unsatisfactory, even though the Barack Obama administration had promised to deliver better regulatory management of offshore energy development.

      Energy reformers were confronting a stubborn reality inherent in the design of the national governmental system: the powerful and pervasive tendency for national policy to change slowly and fitfully—an “incremental” policy style created by the American Constitution. But sudden bursts of rapid innovation and expansive policy reform do occur, albeit infrequently. This pattern of persistent incrementalism occasionally interrupted by bursts of accelerated change produces what has been called in policy studies a “punctuated equilibrium.”¹¹ Just such a surge of policy transformation is what reformers might have expected from the Deepwater affair.

      Critics had hoped the Gulf catastrophe would pack a political punch potent enough to drive Obama’s relatively moderate offshore regulatory reforms in a much more aggressive and ambitious direction. The opportunity seemed obvious. The disaster, it was concluded in a later presidential investigation, had “undermined public faith in the energy industry, governmental regulators, and even our own capability as a nation to respond to crises” and thus seemed a compelling demonstration that something was dangerously deficient in current energy regulation.¹² Even while emergency workers were still fighting to control the underwater spill, the repercussions began to alter the Obama administration’s regulatory reform agenda and unsettle the federal government’s energy regulatory agencies. But, well into Obama’s second presidency, the actual policy impact is disputed, and the sweeping reform of offshore energy regulation apparently so plausible in the wake of the crisis remains elusive.

      ”Only the First Step”

      Some significant policy change was evident in the immediate wake of the Deepwater accident. A month before the accident, Obama had modified his original opposition to new oil exploration in the Gulf and had approved new drilling. The accident immediately compelled a White House reversal and a new drilling moratorium. Blaming the disaster on BP and on the federal Minerals Management Service (MMS) responsible for regulating offshore petroleum exploration, the administration initiated a sweeping investigation of BP’s incompetent disaster management and the MMS’s deficient regulatory oversight. And there was plenty of mismanagement and negligence to find.

      The immediate results from this initial burst of investigations were new, numerous, federal indictments of BP for corporate violation of federal regulatory laws, the abolition of the discredited MMS and its replacement by a new federal regulatory agency with increased