Wednesday, July 14, 2010

(c)Steffen Schmidt 2010. Grounded. (Shot at Sucia Island). Why we need an efficient and responsive bureaucracy to help prevent environmental disasters.

This is an earlier and expanded draft of the Op Ed piece published in July by the Des Moines Register.

The BP Oil Spill is Just the Tip of a Negligence Iceberg
Steffen Schmidt

Mines explode and people die. We discover that federal and state regulators have repeatedly issued warnings and fines but even with people dying, nothing further is done. Hurricanes hit and people die. FEMA the Federal Emergency Management Agency has become a national joke.

Oil wells explode, people die, and the Federal Government is helpless as a child in responding. Eleven people die, business in the Gulf States is severely damaged, wildlife and the ecosystem are probably irreparably damaged.

We discover that the Minerals Management Service, the federal regulatory agency, exercised no oversight of the oil industry and accepted emergency response plans from BP without questioning a single part of the 580 page plan even though it referred to BP's oil spill response plan referred to walruses in the Gulf of Mexico (there are none there). The agency made news before the BP disaster for its “ ... sex, drugs, free Sugar Bowl tickets, and massive royalty give-aways.” Sounds just like its role model the US Congress!

My research and the work of others who are only now starting to pay attention will show that the Gulf of Mexico has been a wild-east frontier with no law, no sheriff and no jail. Companies operating in this remote environment are not supervised, are not held accountable, have accidents as well as serious spills constantly with no consequences and no reporting. Many of them operate with foreign crews on foreign registry vessels. The workers are intimidated and threatened not to document or report anything. Many come from countries where the words “law,” “legal rights,” and “the environment” are unknown.

This is basically a no-man’s land that has been abandoned to profiteers large and small, giant oil companies and small firms that service the industry by both states and the federal government. “Don’t get in the way of business” may be a nice slogan but all of you fishermen, beach and resort owners, governors and local government officials who will see your tax and tourism revenue collapse, and the families of injured and dead workers are paying a huge price for that indifference.

When I studied for my PhD in Public Law and government at Columbia University in New York there was something called “Criminal Negligence.”

This defined as “The failure to use reasonable care to avoid consequences that threaten or harm the safety of the public and that are the foreseeable outcome of acting in a particular manner. Criminal negligence is a statutory offense that arises primarily in situations involving the death of an innocent party as a result of the operation of a motor vehicle by a person who is under the influence of drugs and narcotics or alcohol. Most statutes define such conduct as criminally negligent homicide. Unlike the tort of negligence, in which the party who acted wrongfully is liable for damages to the injured party, a person who is convicted of criminal negligence is subject to a fine, imprisonment, or both, because of the status of the conduct as a crime.” and WestLaw.

Much of what’s been going on qualifies as criminal negligence. If there are no consequences and not just fines, which are the price of doing business but serious jail time, nothing will change. If there were no serious consequences for murder just a token fine, murder would be out of control.

Recently NOAA, another agency that we have trusted, has come under serious fire for a huge scandal.

An editorial in the Gloucester Times (July 3, 2010), “Enforcement audit demands urgent action to clean up NOAA” is very interesting.

"Why aren't these people in jail?"

That question, raised by Gloucester-based attorney Steve Ouellette in reaction to the new audit spotlighting wrongdoing by the National Oceanic and Atmospheric Administration's law enforcement wing, may sound like an over-the-top response.

But Ouellette, who's documented and challenged wrongdoing on the part of NOAA enforcement for years, is asking a very legitimate question. And it's just the latest that deserves an answer from NOAA chief administrator Jane Lubchenco in the wake of the audit report made public Thursday by the Department of Commerce's Inspector General's Office.

The audit was limited to trying to untangle NOAA's Asset Forfeiture Fund, the account built upon the fines and other forfeitures turned over by fishermen charged with violating federal fishing law.

The report — carried out by the independent firm KPMG — found the fund didn't just hold some $8.5 million, as noted in the preliminary report the IG's office issued in January. The forensic audit concluded that NOAA law enforcement may have brought as much as $96 million into the account over a 4 1/2-year period from 2005 through June
2009 — while agents had spent some $49 million via more than 82,000 transactions, with absolutely no oversight.

On what? Well, among other things, KPMG's findings have uncovered that the agency owns significantly more vehicles (200) than it has officers (172). The fund was routinely tapped for overseas travel. Plus, the agency bought a $300,000 "undercover" vessel described by its manufacturer as "luxurious" — complete with a "beautifully appointed cabin."

So even when there are agencies charged with regulation and enforcing laws they become unsupervised rogue entities that undermine their mission and damage the public trust in government.

We stand at a fork in the road. One leads down the well-worn path of indifference, neglect, corruption and mismanagement by government oversight and regulatory agencies. The second leads to a renewal of civic minded, responsible, honest, and transparent conduct. It also leads to serious and consequential supervision of activities by business and industry.

Self-regulation of anything whether children’s behavior, the media, education, medical practice, government agencies, Wall Street banking and securities trading, credit card companies, or the oil industry is an oxymoron.

Research of the chemical industry by Andrew King and Michael Lenox “… suggest that effective industry self-regulation is difficult to maintain without explicit sanctions.” (“INDUSTRY SELF-REGULATION WITHOUT SANCTIONS”)

Now that’s an understatement. We are all responsible for demanding honest and robust supervision for the sake of our environment, our kid’s future, and ourselves.

Steffen Schmidt is University Professor of Political Science at Iowa State University, researches coastal zone management issues at Nova Southeastern University Oceanographic Center, and is Chief International and Foreign Correspondent for

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