Bart Stupak

Blowout Prevention Act – Will Rs Get Buyer’s Remorse? (Modified July 18, 2010)

by Marlo Lewis on July 16, 2010

in Ethanol, Global Warming

Last week, the House Energy and Commerce Committee unanimously approved H.R. 5626, Chairman Henry Waxman’s Blowout Prevention Act. Here’s the version of the bill as marked up and approved by the Committee. Here’s the earlier discussion draft on which the Energy and Environment Subcommittee held a hearing on June 30.

Like the discussion draft, the marked-up version of the bill is a Trojan Horse for restricting and, ultimately, shutting down deepwater oil production.

The most mischievous language is in the first substantive provision, Sec. (2).

Sec. (2)(a)(3) requires each applicant for a drilling permit to have an oil spill response plan ensuring “the applicant has the capacity to promptly control and stop a blowout in the event the blowout preventer and other well control measures fail” (p. 2). If the ongoing disaster in the Gulf has taught us anything, it is that once the blowout preventer and other well control measures fail, there may be no way “to promptly control and stop a blowout.” H.R. 5626 would establish a test no oil company can pass, a standard none can meet.

Nobody had the capacity to “promptly control and stop” the Macondo well blowout after the preventer and other well control measures failed — not BP, not the oil industry working as a team, not the federal and state governments working with the oil industry.

The sponsors had to know they were demanding the impossible when they drafted the bill. Consider these excerpts from a colloquy between Oversight and Investigation Subcommittee Chairman Bart Stupak (D-Mich.) and ExxonMobil CEO Rex Tillerson at the June 15 Energy and Environment Subcommittee hearing:

Stupak: “So when these things happen, these worst-case scenarios, we can’t handle them, correct?”
Tillerson: “We are not well equipped to handle them. There will be impacts as we are seeing. . . .That’s why the emphasis is always on preventing these things from occurring, because when they happen, we’re not very well equipped to deal with them.”
Stupak: “. . . so no matter which one of the oil companies here before us had the blowout, the resources are not enough to prevent what we’re seeing day after day in the gulf, not only the loss of 11 people, but we’re on, what, day 56 or 57 of oil washing up on shores. There is no other plan. There is no way to stop what’s happening until we finally cap this well, correct?”
Tillerson: “That is correct. . . . There is no response capability that will guarantee you will never have an impact. It does not exist and it will probably never exist.”

The discussion draft’s permitting requirements apply to all “high risk” wells, defined expansively as any offshore well plus any onshore well having the potential to cause serious environmental harm in the event of a blowout. The marked-up version targets “covered wells” rather than “high risk” wells, but this is largely a distinction without a difference. Covered wells include all wells located on the Outer Continental Shelf (OCS), plus any other well that, “based on criteria established by rule … could, in the event of a blowout, lead to extensive and widespread harm to public health, safety, and the environment” (pp. 41-42).

The OCS is defined (by reference to Sec. 1301 of the Submerged Lands Act) as waters lying seaward of three geographic miles from the coastline (p. 43). So H.R. 5626 would cover any deepwater well plus any shallow-water and onshore well where a blowout could lead to widespread environmental harm. Very few large wells would be exempt.

Presumably, operators could “promptly control and stop” a blowout at any onshore well and most shallow-water wells. Nonetheless, H.R. 5626 could effectively ban new wells in deep water, and deep water is the future of offshore oil and gas production. As the Department of Interior notes in its May 27 report, Increased Safety Measures for Energy Development on the Outer Continental Shelf, U.S. deepwater offshore oil production surpassed shallow water oil production in 2001, and in 2009, 80% of offshore oil production and 45% of offshore gas production “occurred in water depths in excess of 1,000 feet.” 

The bill does not clearly state how its requirements would apply to existing wells. Would an operator’s permit be revoked if he cannot demonstrate the capacity to “promptly control and stop” a blowout after the preventer and other well-control measures fail? If so, then the bill would not only block new deepwater drilling, it would also create a vehicle for shutting down existing wells. 

Sec. (2)(c) requires the operator to obtain a revised permit if he makes a “material modification” in well design, the blowout preventer, his plan to promptly stop a blowout, or his capability to begin or compete drilling of a relief well for a covered well. Apparently, then, an existing well would be subject to the new permitting requirements if it undertakes a “material modification.” In that case, however, the bill could discourage operators from making material improvements in well safety. Some might avoid or delay making safety improvements in order to avoid or delay becoming subject to an impossible standard. If I am reading these provisions correctly, H.R. 5626 could actually make offshore drilling less safe!  

Federal officials may not be able to finesse Sec. (2)(a)(3), even if they want to, because H.R. 5626 would empower “citizens” to enforce its provisions and associated regulations via litigation:

Any person having a valid legal interest which is or may be adversely affected may commence a civil action in Federal district court of appropriate jurisdiction on such person’s own behalf to compel compliance with this Act, or any regulation or order issued under this Act, or any regulation or order issued under this Act, against any person, including the United States, and any other government instrumentality or agency (to the extent permitted by the eleventh amendment to the Constitution) for any alleged violation of any provision of this Act or any regulation or order issued under this Act. [p. 28]

The discussion draft did not include the qualifier “valid legal interest.” But how difficult is it for an environmental group to demonstrate a “valid legal interest” in enforcing environmental laws and regulations? Enact the Blowout Prevention Act, and environmental groups will be able to sue any agency that fails to hold an oil company to an unattainable standard.

A few concluding thoughts. The security risks of dependence on petroleum imports are often hugely exaggerated, as the Cato Institute’s Jerry Taylor and Peter van Doren explain. Nonetheless, the sponsors of H.R. 5626 view petroleum imports with alarm. If the bill kills the future of U.S. offshore production, our dependence on Saudi Arabia and OPEC will increase. Is that what the sponsors want?

Perhaps their core premise is that oil is so evil that any restriction on oil production is good, because it will hasten the arrival of a “beyond petroleum” future. Such thinking is dangerous folly.

Although oil spills are bad, oil is good. Without oil, there would be no modern commerce and no mechanized agriculture. Life for most of humanity, including most Americans, would be poor, nasty, and short. Indeed, many of us would not even be alive.

Killing the future of offshore production would increase consumers’ pain at the pump, destroy tens of thousands of high-paying jobs, and undermine the economy of the Gulf Coast region. A “beyond petroleum” future would likely be just as distant — or even more so, because a poorer America would have fewer resources to invest in technological innovation.

Petrophobes overestimate their ability to predict and control the future. Consider these examples. 

  • In 1990, the California Air Resources Board (CARB) adopted a zero emission vehicle (ZEV) mandate requiring 10% of all new cars sold in California be electric vehicles by 2003. Ten percent of the California new-car market is about 150,000 vehicles. CARB had to backpeddle several times as it became apparent that consumers were not buying these costly, limited-range vehicles. In 2008, CARB reduced the mandate to 2,500 all-electric vehicles – a rollback of about 98%.
  • Congress in 2007 enacted a Renewable Fuel Standard (RFS) requiring refiners to sell 250 million gallons of cellulosic ethanol in 2011. Earlier this week, EPA announced it would reduce the 2011 target to 5 – 17 million gallons per year –  a 94-98% rollback.

It is not surprising that veteran petrophobes like Reps. Waxman and Markey (D-Mass.) drafted H.R. 5626. It is surprising that every Republican member voted for it too. Do any of them have buyer’s remorse? If not now, when?

Blowout Prevention Act Would Blowout Domestic Oil Production

by Marlo Lewis on July 1, 2010 · 2 comments

in Global Warming, Natural Resources, Precaution & Risk

Yesterday, the House Energy and Commerce Subcommittee on Energy and Environment held a hearing on H.R. 5626, the Blowout Prevention Act of 2010. Although the sponsors claim their intent is simply to prevent a disaster like the blowout of BP’s Macondo deepwater well from ever happening again, the bill would establish, as a precondition for obtaining a permit to drill, a test no oil company can pass.

Let’s look at the bill’s first substantive provision:

SEC. 2. NO DRILLING WITHOUT DEMONSTRATED ABILITY
 TO PREVENT AND CONTAIN LEAKS.
(a) FEDERALLY PERMITTED HIGH-RISK WELLS.—
Effective one year after the date of enactment of this Act, the appropriate Federal official shall not issue a permit to drill for a high-risk well unless the applicant for such
permit demonstrates, the Chief Executive Officer of the applicant attests in writing, and the appropriate Federal  official determines that—
(1) the blowout preventer and other well control measures will prevent a blowout from occurring;
(2) the applicant has an oil spill response plan that ensures that the applicant has the capacity to promptly stop a blowout in the event the blowout preventer and other well control measures fail; and
(3) the applicant has the capability to begin drilling of a relief well within 15 days, and complete such drilling of a relief well to control a blowout within 90 days of the well control event that causes such blowout.

The unattainable standard is in Section 2(a)(2). Under this provision, no oil company may obtain a permit to drill for a high-risk well unless it demonstrates the ”capacity to promptly stop a blowout in the event the blowout preventer and other well control measures fail.” But, as is painfully obvious, the Macondo well has been gushing oil into the Gulf of Mexico for more than two months with no clear end in sight. Nobody has the capacity to “promptly stop” the blowout after the preventer and other well control measures failed — not BP, not the oil industry working as a team, not the federal and state governments working with the oil industry.

In short, the bill would hold applicants for drilling permits to a standard that none can meet. Moreover, as fully documented here, the sponsors of the Blowout Prevention Act know very well that once the blowout preventer and other well control measures fail, physics takes over and there is no way to stop oil from spilling into the ocean environment. Consider these excerpts from a colloquy between Oversight and Investigation Subcommittee Chairman Bart Stupak (D-Mich.) and ExxonMobil CEO Rex Tillerson:

Stupak: . . . so no matter which one of the oil companies here before us had the blowout, the resources are not enough to prevent what we’re seeing day after day in the gulf, not only the loss of 11 people, but we’re on, what, day 56 or 57 of oil washing up on shores. There is no other plan. There is no way to stop what’s happening until we finally cap this well, correct?

Tillerson: That is correct. . . . There is no response capability that will guarantee you will never have an impact. It does not exist and it will probably never exist.

Now, you might suppose that although Section 2(a)(2) would effectively bar all drilling of “high-risk wells,” it would not affect offshore wells that are low-risk. Alas, no. Sec. 16(12)(A) defines “high risk” to include any “offshore oil or gas exploration or production well within 200 nautical miles of the coast of the United States.”

At yesterday’s hearing several members criticized this language as indiscriminate, because it ignores the site-specific circumstances (such as oil pressure, temperature, and geology) that would affect the risk level of a particular drilling operation. Chairmen Waxman (D.-Calif.), Markey (D-Mass.), and Stupak may thus agree to define “high risk” more narrowly — for example, offshore wells in water deeper than 1000 feet.

Even with this modification, however, the bill would still wreak havoc on offshore oil production. As the Department of Interior notes in its May 27 report, Increased Safety Measures for Energy Development on the Outer Continental Shelf, U.S. deepwater offshore oil production surpassed shallow water oil production in 2001, and in 2009, 80% of offshore oil production and 45% of offshore gas production “occurred in water depths in excess of 1,000 feet.” The future of offshore oil is in deep water. Even if “high risk” applies only to deepwater wells, H.R. 5626 would sabotage the industry’s future.

Sec. 16(12)(B) also defines ”high risk” to include any ”onshore oil or gas exploration or production well in the United States . . . that, in the event of a blowout, could lead to substantial harm to public health and safety and the environment.” Is there anyone in the environmental movement who does not think an oil spill in the Alaska National Wildlife Refuge (ANWR) “could lead to substantial harm to . . . the environment”? Let’s call this provision the ANWR Prohibition Clause. Of course, it could effectively prohibit onshore drilling in many places besides ANWR.

Federal officials won’t be able to finesse these strictures, even if they want to, because the bill would empower “citizens” to enforce the Act and its associated regulations and orders via litigation:

Any person may commence a civil action in Federal district court of appropriate jurisdiction on such person’s own behalf to compel compliance with this Act, or any regulation or order issued under this Act, or any regulation or order issued under this Act, against any person, including the United States, and any other government instrumentality or agency (to the extent permitted by the eleventh amendment to the Constitution) for any alleged violation of any provision of this Act or any regulation or order issued under this Act. [Sec. 16(a)]

Enact the Blowout Prevention Act, and every eco-litigation group will be able to sue any agency that fails to hold any oil company to an unattainable standard.

All of this would be okay if oil were evil and abolishing U.S. oil production could not happen too soon. That seems to be an unstated premise of the Blowout Prevention Act.

That premise, however, is outrageously false. Although oil spills are bad, oil is good. Without oil, there would be no modern commerce and no mechanized agriculture. Life for most of humanity, including most Americans, would be poor, nasty, brutish, and short. Indeed, many of us would not even be alive.

Banning offshore drilling would increase consumers’ pain at the pump, destroy tens of thousands of high-paying jobs, cripple the economy of the Gulf coast states, and make America more dependent on OPEC oil. Presumably, those are not results most Members of Congress want to bring about. Yet Congress will set the stage for just such a policy disaster if, applying the so-called Precautionary Principle to domestic oil production, it demands proof of absolute safety as a precondition for approving the operation of offshore and onshore wells.