Dispersants: The Lesser Of Two Evils Or A Cure Worse Than The Disease?

The April 20, 2010, BP oil spill is widely regarded as the nation’s worst environmental disaster. The explosion of the Deepwater Horizon oil rig resulted in the death of eleven crewmen, and thousands of fish, sea turtles, birds, and marine mammals. The federal government estimates that 4.9 million barrels (or 205.8 million gallons) of oil spilled into the Gulf of Mexico from the rogue well. In addition to the direct effect on wildlife from the spilled oil, which includes reduced ability to regulate temperature, forage, and nest, the unprecedented application of dispersants also likely impacted wildlife. During the oil spill, BP released roughly 1.84 million gallons of dispersants into the Gulf, 1.07 million gallons to the surface and 771,000 subsea. The Environmental Protection Agency (EPA) approved these measures despite its admission that no one fully knew the environmental effects of the dispersants, particularly at such great depths or volumes. Lisa Jackson, EPA administrator, called her decision to approve BP’s subsea dispersant use the hardest decision she ever made. As days turned to weeks and the oil continued to spill, it became obvious that both BP and the government were woefully unprepared to respond to a spill of this magnitude. The horror and chaos of the oil spill put the government in the awkward position of leading the efforts to respond to the spill while relying on industry resources and expertise. This also resulted in a tug-of-war within the Obama Administration between its enforcement and regulation roles and its need to cooperate with BP in order to stop the flow of oil and recover from the spill. The use of subsea dispersants most clearly exemplified this conflict as the government’s lack of knowledge about the effects of dispersants made it almost impossible for it to fulfill its legal duty to protect the nation’s waters and wildlife from pollutants. Two U.S. federal laws, the Clean Water Act (CWA) and the Endangered Species Act (ESA), contain provisions that specifically ensure that dispersant approval and use will not jeopardize imperiled wildlife and the resources on which they depend. In light of the general lack of knowledge regarding the effects of dispersants used in response to the Deepwater Horizon oil spill, and the harm they may have caused, it has become evident that these two environmental laws, their implementation, or both, were inadequate to safeguard the environment and wildlife from the disaster response. This Article examines the use of dispersants in response to the BP oil spill. The authors describe the ways in which the CWA and the ESA authorize the EPA to regulate the use of dispersants and suggest how the regulation of dispersants could be strengthened. Part II discusses the development of contingency plans for oil spills in the Gulf of Mexico and the pre-spill consultation process for dispersants’ effects on wildlife. Part III describes BP’s dispersant use in response to the Deepwater Horizon oil spill and recent scientific research identifying potential effects on the ocean and marine wildlife. Part IV discusses lessons learned from the oil spill and concludes that future preparedness will require better agency implementation or even legislative action