The Potential Benefits of a Regional Citizens’ Advisory Council for Our Gulf Coast Energy Industry

When the EXXON VALDEZ ran aground in Prince William Sound on March 24, 1989, it was an action-forcing event that led to what was the most substantial overhaul of our federal oil spill prevention, preparedness, and response regime in the Nation’s history. But the event that really got policymakers and experts started thinking about such a sweeping re-rack of federal law actually occurred a decade earlier—the Ixtoc One blowout in Mexico’s Bay of Campeche in 1979.

If Ixtoc sounds eerily similar to the Macondo blowout (i.e., DEEPWATER HORIZON) off the coast of Louisiana in 2010, that’s because it is. Ixtoc One was an exploratory oil well being drilled by Mexico’s government-owned oil company Petróleos Mexicanos, or PeMex, in 1979. On June 3, 1979, circulation of drilling mud to the well failed, causing a blowout, explosion, and fire that resulted in the destruction and sinking of the rig involved. For ten months, the well spewed oil at a rate initially estimated to be 30,000 barrels (1.26 million gallons) per day. That flow rate was later reduced by about one-third by pumping nearly 100,000 metal balls into the well. The well was eventually capped with a “sombrero” coffer dam on March 23, 1980, after having released an estimated 3.3 million barrels (138 million gallons) of crude oil, much of which ultimately found its way to the beaches of Mexico and Texas as weathered oil “tar balls.” I remember as a child on trips to Galveston beach having to rub our feet with baby oil before we left to get the tar balls of our feet.

Congress spent the next decade debating various aspects of major proposals to overhaul U.S. law to promote better oil spill prevention and effective spill response. Chief among the issues of contention were questions of federal preemption of potentially more stringent state oil spill laws, potential liability of the actual owners of spilled oil, and double-hull requirements for tank vessels carrying oil and refined petroleum products. These and other policy questions continued to be debated in Congress until 1989, when the EXXON VALDEZ marine casualty and environmental disaster highlighted the inadequacies of the existing spill prevention and response framework and generated significant public outrage. The end result was the Oil Pollution Act of 1990 (“OPA 90,” Pub. L. No. 101-380, 1990).

One of the lesser known provisions of OPA 90—outside of Alaska, anyway—is section 5002 of the Act (33 U.S.C. § 2732), dealing with oil terminal and tanker oversight and monitoring. On August 2, 1989, the Honorable Frank H. Murkowski (R-AK), then Alaska’s junior senator, introduced stand-alone legislation with the short title “Oil Terminal Environmental Oversight and Monitoring Act of 1989” (S. 1474, 101st Cong.). The stated purpose of S. 1474 was to authorize demonstration projects involving oil terminal environmental oversight and monitoring, with the bill being specifically focused on two areas of Alaska: the Alyeska Pipeline terminal facilities in Prince William Sound and terminal facilities on the Kenai Peninsula in Cook Inlet.

Ultimately, Senator Murkowski’s bill became section 5002 of OPA 90. An Act within the Act, and slightly restyled as the “Oil Terminal and Oil Tanker Environmental Oversight and Monitoring Act of 1990” (emphasis added), over the years it has facilitated regional citizen advisory councils (RCACs) in Prince William Sound and Cook Inlet, Alaska, that are funded annually by terminal and tanker owners and operators active in those areas. The RCACs are solely advisory bodies to the owners and operators that fund them, with no regulatory authority. Their only “teeth” are their ability to appeal to the local court of public opinion on a given issue. To make sure the RCACs don’t become mere rubber stamps on industry activities, the U.S. Coast Guard periodically reviews them for recertification based on whether they continue to meet the requirements and duties set forth in the statute. Among the RCACs’ primary duties are: to provide advice and recommendations on policies, permits, and site-specific regulations relating to the operation and maintenance of facilities and tankers with the potential to affect the surrounding environment; to monitor environmental impacts of the operation of the facilities and tankers; and to review the adequacy of oil spill prevention and contingency plans for the terminal facilities and tankers operating in Prince William Sound or in Cook Inlet.

The RCACs are populated with Alaska residents appointed by the Governor from lists of nominees provided by specific local interest groups, with one voting Council member representing each of the following local interest groups: the commercial fishing industry; Alaska Native organizations; environmental organizations; recreational organizations; the Alaska State Chamber of Commerce; and certain statutorily specified municipalities in the Prince William Sound and Cook Inlet regions too numerous to list here. The RCACs also include one ex-officio, non-voting representative from each of: the EPA; the Coast Guard; NOAA; the U.S. Forest Service; and the Bureau of Land Management; as well as each of the Alaska Departments of Environmental Conservation, Fish and Game, Natural Resources, and Military and Veterans Affairs.

In 2010, in the wake of the catastrophic DEEPWATER HORIZON marine casualty and spill, some in Congress proposed establishing a Gulf Coast RCAC populated with voting members from each of the five Gulf Coast States, as well as non-voting federal and state government officials (See S. 3597, the SHORE Act, 111^th Cong., 2010). While nothing further than committee-reported legislation ever came of the idea, I happen to think it was a good one and I still do. I say that as one who grew up on the Gulf Coast and also worked in the offshore oil and gas industry as a young man. Complacency among industry and government officials fosters an environment where emergency back-up batteries for wellhead blowout preventers aren’t there when you need them, and inebriated tank ship masters can get behind the wheel and spill 260,000 barrels of crude into a pristine environment. Citizen and community engagement by industry and government officials through an RCAC has the effect of combating complacency through communication and, ultimately, accountability. A Gulf Coast RCAC would foster long-term partnership between industry, government, and local communities and lead to greater trust, understanding, and the ability to reach consensus on issues.

It is a sad fact that it often takes a disaster to motivate Congress to make improvements and fix problems with respect to a given issue. If there is another major spill in the Gulf, and I certainly hope there is not, but if there is, I hope Congress will give the idea of a Gulf Coast RCAC a second look. If well thought out and properly crafted, it can be a win for coastal communities, industry, and government regulators. And we have strong evidence to that effect with the long-term positive impacts of the RCACs in Prince William Sound and Cook Inlet in Alaska.