American Energy. Walter A. Rosenbaum

presidential investigations of the disaster and its aftermath. The Department of the Interior (DOI) initiated measures to improve coordination between federal and state governments in Gulf disaster management.

      But these policy innovations, and others soon initiated, evolved slowly and contentiously while the public impact of the disaster—a critical consideration in producing an accelerated and comprehensive redesign of drilling policy—seemed to dissipate within weeks. Four months after the disaster, for instance, while the Gulf oil slick was still invading Gulf beaches, national polls reported that more than 50 percent of the public still approved of offshore oil exploration, and the disaster itself ceased to command major media attention.¹³ Moreover, Louisiana and other Gulf states with economies enriched by royalties and employment flowing from Gulf energy exploration wanted no long-term interruption in these benefits—Deepwater explosion notwithstanding—and successfully applied pressure on the Obama administration, which reluctantly relaxed the new moratorium after only a few months.

      Within months of the disaster, the federal courts—a certain venue in any important conflict about national energy regulation—were drawn into the conflict and will remain for years to come. The federal government sued BP to recover damages for criminal negligence and for violation of the federal Clean Water Act. Others with claims of injury against BP, including state and local governments, environmental groups, private parties, and other corporations, have initiated litigation.

      More than three years after the disaster, both the presidential committee originally investigating the Deepwater explosion and a subsequent inquiry by the National Research Council concluded that the Obama administrative reforms were impeded by serious delays and but “a first step” toward a needed comprehensive reform and much more was required.¹⁴ The Gulf disaster had receded so far from public consciousness as to virtually disappear, along with the momentary flicker of public interest in energy itself as a major public issue. Meanwhile, despite almost continuous congressional hearings since the event, by 2014 only two significant bills had been passed in response to the Obama administration’s call for a much more comprehensive redesign of federal energy regulation. In short, after a brief burst of modest innovation and reform, policy was moving along incrementally.

      Making Energy Policy: A Primer

      The slow and meandering pathway of policymaking unfolding in the aftermath of Deepwater Horizon is not unique to the Gulf tragedy nor to energy policy. The Gulf tragedy became a political stage throwing into sharp relief many elements common to the design of all domestic American policymaking, energy matters included. The influence of these policymaking fundamentals—along with some distinctive to energy policy—will be evident throughout later chapters as well, and merit a brief introduction.

      The Constitution

      The Constitution creates a master design for all US public policymaking. It is a document originally written by men deeply suspicious of a government armed with concentrated power and intended for a nation of farmers, shopkeepers, tradesmen, and merchants. What resulted was a government of countervailing forces with the power vested in each major institution limited by others and, in turn, limiting them.

      This was not a government intended to “govern” energy production, or much else. The government that controls pollution and petroleum imports, licenses microwave ovens, regulates energy prices, fights oil spills, and oversees a thousand other programs now considered essential to energy management would have been unthinkable to the Framers. The Constitution has survived the enormous changes in American society and politics while preserving the political institutions it originally ordained. At the same time, the embedded cost is a continuing struggle to adapt constitutional institutions to the rapid and apparently accelerating pace of social, economic, and technological change nationally and globally.

      Two of the Constitution’s fundamental principles for dividing and limiting power—the elaborate checks and balances within the federal government and the division of power between the federal government and the states—fragment policymaking authority, exacerbate conflict between governmental institutions, and slow the pace of innovation. This dispersion of power often encourages deliberation and sensibility to a wide range of interests in policy issues, but at the constant risk of delay, conservatism, and unpredictability in making and implementing policy.

      Checks and balances. The Constitution, as Richard E. Neustadt reminds us, creates a government of separated institutions sharing power.¹⁵ This deliberate overlapping of authority, together with the Constitution’s vagueness in describing the nature of these powers and their proper division between governmental institutions, requires the institutions to collaborate if they are to govern and simultaneously incites rivalry between them. The checking and balancing of one institution by others, “ambition made to counteract ambition” in James Madison’s words, overlays all policymaking within the federal government.

      Institutional collaboration and conflict are most readily apparent at the national level in the relationship between the presidency and Congress. The Constitution invests each institution with unique powers, but it also compels them to share authority in legislating, taxing, and spending; oversight of the executive branch; and many other policymaking activities. Thus, the president may be responsible for ensuring that the Minerals Management Service enforces safety regulations on Gulf of Mexico oil drilling, but Congress writes the law the MMS implements. Without such collaboration, policymaking would be virtually impossible. The president and Congress, however, are divided by responsibility to different electorates, by institutional rivalries, by competing party loyalties, and by a constitutional obligation to check each other. Congress itself is a house divided into partisan factions, one congressional faction always committed to the electoral defeat of the White House incumbent.

      Federalism. The Constitution also divides the government “vertically,” granting some exclusively to Washington, some exclusively to the states, and some to be shared. This mixture of shared and separated authority encourages political rivalry as well as collaboration among the states and between the states and the federal government. Federalism gives a political form to state and regional interests, arms them with authority, and makes them influential participants in national policymaking. In the United States, policy is often the result of negotiation between a plurality of governmental entities—federal, regional, state, and local—whose distinctive interests are protected by federalism. One has only to observe the collaboration and collision between Washington and the Gulf States over management of the Deepwater explosion to confirm that federalism is alive and well today.

      Incrementalism, “Punctuated Equilibrium,” and Lurches

      The governmental institutions created by the Constitution strongly encourage the incremental pace of policymaking, familiar to American government, in which “what is feasible is that which changes social states only by relatively small steps.” Hence, decision makers, concerned with energy or otherwise, typically consider, among all the alternative policies that might be imagined to consider, only those relatively few alternatives that represent small or incremental changes from existing policies.¹⁶

      But institutions and policymakers are sometimes shaken out of this deliberate pace by a potent fusion of sudden events and mobilized political interests that force rapid policy acceleration and innovation, producing what leading policy scholars Frank Baumgartner and Bryan Jones have characterized as a pattern of “punctuated equilibrium.” In broad perspective, they note, “American political institutions were conservatively designed to resist many efforts at change and thus to make mobilizations necessary if established interests are to be overcome. The result over time has been institutionally reinforced stability interrupted by bursts of change. These bursts have kept the US government from becoming a gridlocked Leviathan despite its growth in size and complexity since World War II.”¹⁷ Thus, American policymaking is characterized by “long periods of relative stability or incrementalism interrupted by short bursts of dramatic change.”¹⁸

      These bursts of change, often called “shocks” and “lurches,” have power but not always endurance. Perhaps the most powerful shocks to American