an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
I have tried to give the Obama Administration the benefit of the doubt during the Gulf/BP oil disaster. There was a "grand ole party" at Interior for at least eight years. Many Republicans in Congress would have tried to block nominees for Interior who were committed to environmentalism. But the more I read about the controversy, the harder it gets to excuse current players for their actions. Consider just one issue: the use of dispersants in response to the spill.
On May 14th, two days after the first video of the gusher was released, the government allowed BP to apply a toxic dispersant that is banned in England at the source of the leak – an unprecedented practice in the deep ocean. "The effort should be in recovering the oil, not making it more difficult to recover by dispersing it," says Sylvia Earle, a famed oceanographer and former NOAA chief scientist who helped the agency confront the world's worst-ever oil spill in the Persian Gulf after the first Iraq War. The chemical assault appeared geared, she says, "to improving the appearance of the problem rather than solving the problem."
Now we are learning that the some of the dispersants had "no toxicity studies" done to support their use, and we cannot even find out what is in them:
[T]he dispersant products, branded Corexit 9527A and Corexit 9500A, were made exclusively by a former Exxon subsidiary now owned by a company called Nalco. Exxon researchers had already acknowledged that they were significantly toxic for aquatic life. But just how toxic was mysterious -- particularly for humans. The publicly available data sheets for both products revealed that they have the "potential to bioconcentrate," but added this stunner: "No toxicity studies have been conducted on this product."
Information about their precise composition was also vague, clouded by a veil of secrecy based on "proprietary" concerns. I found the information scarcity outrageous. A private company fouls a vast public resource and then dumps hundreds of thousands of gallons of a toxic chemical potion into it. Doesn't the public have the right to know precisely what's in that potion?
Even more depressing, the issue of oil company trade secrecy is not a new one. Residents in the vicinity of hydrofracking methods have been worried about their effect on water supplies for some time. Congress has launched an investigation into gas drilling practices. As Abrahm Lustgarten's pathbreaking article for ProPublica noted, "it is difficult to pinpoint the exact cause of each contamination, or measure its spread across the environment accurately, because the precise nature and concentrations of the chemicals used by industry are considered trade secrets." According to Lustgarten, "Not even the EPA knows exactly what's in the drilling fluids. And that, EPA scientists say, makes it impossible to vouch for the safety of the drilling process or precisely track its effects."
Respect for "property rights" via trade secrecy has put many lives and our environment at risk, as St. John's law professor Mary Lyndon has been documenting for years. And yet the Obama administration appears unwilling to "go to the mat" to test the strength of this deeply troubling assertion of corporate prerogatives.
As the oil spill in the Gulf of Mexico follows on the heels of the financial crisis, we can discern a toxic recipe for catastrophe. The ingredients include risks that are erroneously thought to be vanishingly small, complex technology that isn’t fully grasped by either top management or regulators, and tricky relationships among companies that are not sure how much they can count on their partners.
But what happens when that lack of understanding of "complex technology" is by design, rather than by accident? What happens when regulators are so indifferent to public safety that they can't be bothered to demand some disclosure from an "egregious and willful" violator of public standards? We then have to worry that the lesson to be drawn from the Wall St. crisis is not Thaler's, but Robert Kuttner's, who calls Obama's presidency "in peril" because of its close ties with irresponsible corporate actors.
Books like 13 Bankers put relationships like this at the very center of financial reform efforts. The choices for the future of oil industry regulation are similarly stark. Exactly what types of revolving doors exist between Interior and the industry? What are the potential rewards for lax regulators? And if the bureaucracy is hopelessly captured, what other types of creative solutions can be developed?