Reconceptualizing NEPA to Avoid the Next Preventable Disaster

This Article develops two accounts of why the risks of technological failure at the root of the Deepwater Horizon disaster were roundly ignored by regulators and industry alike. First, we argue that the inattention to risk may have reflected a “groupthink” pathology within the homogenous community of regulators and industry actors, whereby an orthodoxy regarding the safety of drilling came to be not just accepted but required in order to succeed. Second, we argue that the inattention to risk may have been a rational industry decision in light of its ability to avoid bearing all the costs of a disaster, as well as its ability to capture regulators to avoid unwanted scrutiny. We argue, then, that no matter which account was in fact prevalent, the proposed reforms in the wake of Deepwater Horizon are not fundamental enough to address the risks. Building on a contractarian model, we argue for a reformulation of NEPA and other environmental reviews whereby it would be understood that industry engages in these reviews as a contractual quid-pro-quo for obtaining valuable rights (such as leases), and where those rights could be rescinded when it becomes apparent that the reviews were not conducted reasonably and in good faith. In other words, we believe that industry must come to “own” environmental review and, once that is so, the culture and calculations of industry leaders will change to make them more attentive to environmental risks