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I have read, on this site and elsewhere, with increasing frequency, a strident plea from a growing crowd that the federal government do something to make BP stop their incessantly leaking oil well.

While I understand the well-meaning emotion behind this ardent desire, born no doubt of frustration and helplessness, behind the emotion, there is the rule of law, and ultimately the Constitution, which binds the actions (or lack thereof) of our federal officials, the Coast Guard, and the President.

A recent FP diary encouraged me to outline the framework of authority within which our government is bound in this case.

Disclaimer: I am not a lawyer.

Authority, broadly defined, is what gives the government its power to act.  In the Bill of Rights, Articles 9 and 10 read,

Amendment IX:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X:
The powers not delegated to the United States by the Constitution, nor prohibited to it by the States, are reserved to the States respectively, or to the people.

What this means, in the context of the oil spill, is that the federal government only has the authority to act when such authority is specifically granted to it - and only within the defined scope of such authority.

We generally see this as a good thing and a bedrock of a "free society" - namely, that the government can't poke its nose into our business except when a law says it can.

In this case, the relevant law is the Oil Pollution Act of 1990 (OPA 90 - 33 USC 2701-2761).  OPA 90, among other things, provides authority for the government to hold financially responsible the people or companies (the "Responsible Parties") who spill oil.  The government can sue for cleanup costs as well as damage to the environment (as the latter is harder to quantify in dollar amounts).  OPA 90 also authorized the creation of the Oil Spill Liability Trust Fund (OSLTF), a budget for immediate response to oil spills, due to the inevitable delay in squeezing money from the RPs.  (OPA 90 did a lot more, too, everything from requiring double hulls on tankers to laying the groundwork for AIS, a vessel monitoring system, and requiring that the new class of Coast Guard buoy tenders include an oil recovery system - as we see in effect in the Gulf today.  But I digress.)

The complementary aspect to authority in this case is what in law enforcement terms is called the "use of force continuum".  Its military equivalent is ROE (Rules of Engagement).  The Use-of-Force continuum describes what levels of force are authorized, and when, in order to achieve compliance with a legal order from a law enforcement officer.  These rules are almost always quite strict, to avoid illegally hurting someone.  The levels on the Use of Force continuum typically range from very mild (Loud Verbal Commands with Task Direction) to severe (Deadly Force) with several intervening steps.  The law enforcement officer is trained to recognize which step is appropriate to use, and when to either escalate or de-escalate along the continuum.

Force is generally authorized in one of two situations:

  1. To protect the officer or other personnel (including the public)
  1. To achieve compliance with a lawful order

Force may rarely be authorized in other situations, such as to protect property (imagine a nuclear reactor).

While the verbiage (and specific legal meaning) varies, law enforcement officers are generally trained to use the minimum force necessary to compel compliance with their orders.

Also germane to the case at hand is that the Coast Guard does have law enforcement authority and jurisdiction in certain shoreside cases, including patrols of shoreside marine facilities; for customs purposes; and in prevention of or reaction to an act of terrorism (see 46 USC 70117, 19 USC 1589a, and 33 USC 1226).  However, the Coast Guard does not have specific legal authority to serve orders, make arrests, carry firearms, conduct searches, etc. when responding to an oil spill.  The Coast Guard's only statutory authority, as per OPA 90 and the National Response Plan, is strictly in a response capacity.  No law enforcement authority is expressed or should be implied.

So where does this bring us?  In a nutshell, neither the Coast Guard, nor any federal agency, nor the President has the authority to give task direction in this case to any private citizen or company (whether public or private, US- or foreign-owned).  The federal government can tell BP to comply with pollution laws "or else" be subject to fines, but the legal threat is the limit of their authority.  Furthermore, were they to issue such task direction, and were BP to take that advice, BP might then be able to claim they were absolved of financial responsibility for any further damage caused by their spill (as they would only be doing "what the government told them to do").  Cancelling BP's lease for the oil at that site, or inventing a specious reason to arrest the executives and toss them in jail, would also have questionable effects, as one assumes that in either case, BP would simply wash their hands of the whole mess and leave the government responsible for everything - including, most importantly, the bill.

The trick is to keep holding BP fully financially responsible while simultaneously trying to cajole them into taking what we hope are the most productive steps to shut down the leak so the massed armies of cleanup crews can do their job once and for all.  This is a case in which the invisible hand of "market pressure" of threatened fines does not seem to be touching BP at all.  So much for Adam Smith.

Finally, to those who have attacked the President for an equal effort to cajole state governors to his side, OPA 90 actually has his back:

The President shall consult with the affected trustees [anyone whose land, property, livelihood, etc. is affected by the spill]...on the appropriate removal action to be taken in connection with any discharge of oil.  For the purpose of the National Contingency Plan, removal with respect to any discharge shall be considered completed when so determined by the President in consultation with the Governor or Governors of the affected States.  However, this determination shall not preclude additional removal actions under applicable State law."

So, while it is not as superficially (or viscerally) pleasing as cowboy diplomacy - tossing out "bold statements", arresting people you don't agree with, and rewriting laws and bending the Constitution in your destructive wake - the federal government is actually adhering to the rule of law as it wends through this fiasco.

I may think the laws should be amended, strengthened, or added to, but I cannot fault Adm. Allen or the President for adhering to the limits of their own legal authority.

Originally posted to Square Knot on Tue Jul 20, 2010 at 01:55 AM PDT.

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Comment Preferences

  •  I welcome anyone with legal expertise... (3+ / 0-)
    Recommended by:
    cotterperson, trashablanca, Yasuragi this sort of case to weigh in.  Thanks!

  •  I like this, Square Knot -- it explains for me (4+ / 0-)

    limits I generally knew were in place but didn't know the specifics of.

    Thanks so much for doing the work on this.

    For a successful technology, reality must take precedence over public relations, for nature cannot be fooled. -- Richard Feynman

    by Yasuragi on Tue Jul 20, 2010 at 02:59:08 PM PDT

  •  The national response plan (5+ / 0-)

    does allow for using needed resources from any source.

    The Incident Commander has overall authority and responsibility for conducting incident operations and is responsible for the management of all incident operations at the incident site.

    (pdf of Plan)

    Annex 10 covers the Oil and Hazardous Materials Response details.

    It says:

    The scope of ESF #10 includes the appropriate actions to prepare for, respond to, and recover from a threat to public health, welfare, or the environment caused by actual or potential oil and hazardous materials incidents. Appropriate general actions can include, but are not limited to: actions to prevent, minimize, or mitigate a release; efforts to detect and assess the extent of contamination (including sampling and analysis and environmental monitoring); actions to stabilize the release and prevent the spread of contamination; analysis of options for environmental cleanup and waste disposition; implementation of environmental cleanup; and storage, treatment, and disposal of oil and hazardous materials.

    They do soft-pedal a bit -- they never say, for example, 'the ability to seize resources' but they do say they are responsible for making sure such things are provided.

    Every flower that you shatter; we will plant again!

    by merrily1000 on Tue Jul 20, 2010 at 03:44:17 PM PDT

    •  Yes and no... (2+ / 0-)
      Recommended by:
      Simplify, miss SPED

      Having worked under the framework of the NRP from a logistics standpoint, I can tell you that "providing resources" means the authority to source it from within the government or within one's own agency.  In fact, the various ESFs detail which agencies are responsible for providing which resources for which contingencies.

      For example, the Coast Guard has a lot of internal resources available to deal with oil spills (buoy tenders with skimming capacity, trained personnel, contracts for consumables like boom and services like large-scale skimming) and are thus tasked to provide such resources as they can in case of an oil spill, under ESF #10.

      However, as you note, the NRP does not give the government the authority to commandeer private property or private resources.  (This was also a big issue in Katrina.)

      I personally believe that's a rabbit hole we don't want to race down - what happens when a dishonest government is in charge?

  •  Well done, Square Knot (3+ / 0-)
    Recommended by:
    trashablanca, miss SPED, Square Knot

    Thanks for the voice of reason, well researched. This diary deserves more attention than it's getting.

  •  Why does this seem different (1+ / 0-)
    Recommended by:
    Square Knot

    than if a private, single citizen made the mess?
    I can't help thinking that, if a lone person were to have done something (scaled down) comparable they would be dragged off to court (at least) and some official agency would take over the site. But, it's different, since it's a corporation.

    How much better off the world might be, and how much better other nations might see us, if we held out a hand instead of a fist.

    by Audri on Wed Jul 21, 2010 at 05:55:15 AM PDT

    •  I've wondered that too, Audri (1+ / 0-)
      Recommended by:

      But I think, as you mentioned, the scale is important - as is the liability/funding issue.  For example, Superfund sites - where EPA does take over - always end up being a disaster to manage.

      It would be rather nice to see some of these executives broke and in jail for this, I do admit.

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