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May 27, 2010

Abrogating One’s Due Diligence

Farrell Keough

Back at the beginning of this month I wrote a column on the BP oil platform explosion in the Gulf of Mexico. On April 30, 2010, the initial action taken by the Obama Administration was sending lawyers to New Orleans (Reuters) eight days after the explosion.


Since that time, little-to-nothing has been undertaken by this administration to help with this national catastrophe. The mantra has been ‘this is BP’s problem and they are the responsible party.’ Recently, Secretary of the Interior Ken Salazar noted that this administration will “keep our boot on their [BP Oil] neck.”


When is a large government response a right and necessary action? When we are told there is a national healthcare emergency? When we are told there is a national financial Institution emergency – omitting quango-governmental organizations like Fannie Mae and Freddie Mac? When we are told certain companies and industries are both ‘too big to fail’ and that they must be regulated by the federal government?


So far, these have been the only times our current administration has found it important enough to step forward and push for both larger government agencies, broad new sweeping federal powers, regulatory authority, and massive legislation.


Yet, during this real national emergency, the current administration has remained silent, sent in the lawyers, and created a “commission” to look into the problem. The media has been complicit in this operation – not asking the difficult questions, not doing the research, allowing this catastrophe to continue without probing the facts to determine who is actually responsible and what could be done.


Once again, Mark Levin has done the research the others have not. This national radio talk show host has found where the ultimate responsibility lies and just how this current administration is abdicating its true responsibility.


“[A] year before the Exxon Valdez oil spill led to a reformation and strengthening of America’s oil pollution laws, a worker at… [a California] refinery left open a valve designed to allow drainage of stormwater from a berm protecting against spills from a large oil storage tank… Before the mistake was rectified, over 432,000 gallons of crude oil leaked… into Suisun Bay, near San Francisco… The spill led to an outcry from those living in and around San Francisco.” *


This action, coupled with vocal groups well versed in pressing for new legislation, led to the 104th Congress strengthening the Clean Water Act. Section 311(c)(1)(A) of the Federal Water Pollution Control Act [FWPC] of 1948 “which related to maritime disaster discharges, was amended” and replaced with Section 4201. **


This Act may be cited as the "Oil Pollution Act of 1990'', SEC. 4201. FEDERAL REMOVAL AUTHORITY.

(a) IN GENERAL,Subsection (c) of section 311 of the Federal Water Pollution Control Act (33 U.S.C. 1321(c)) is amended to read as follows:



(A) The President shall, in accordance with the National Contingency Plan and any appropriate Area Contingency Plan, ensure effective and immediate removal of a discharge, and mitigation or prevention of a substantial threat of a discharge, of oil or a hazardous substance…


What is most outstanding about this section is the word shall – this carries an enormous amount of weight in legal and legislative terms. This means that the final responsibility and required action for such national catastrophes lies with the president – not BP Oil or any other entity. This act was changed specifically because it was recognized that some emergency and crisis situations are so large that resolution must lie with a large federal action and only the president has that kind of authority within their scope.


This section allows delegation of this authority to the United States Coast Guard or the Environmental Protection Agency. The section further states that the president may follow any of these actions to perform this lawful duty:


Perform clean up immediately – Federalize the clean up.


Monitor response efforts of spiller – in this instance, BP Oil.


Direct the spiller’s clean-up activities – again, in this instance, BP Oil.


While BP Oil is in no way blameless, the ultimate responsibility for such a catastrophic event lies with the president, not with any other party! This administration has used so many ginned up calamities, yet when a legitimate national disaster presents itself, they remain inert – only able to send in the lawyers, call for tax increases, and form a committee. The truth of this presidency is showing itself in every action, as well as in their non-actions.


* ELI Environmental Law Institute, The National Resource Damage Assessment Deskbook, A Legal and Technical Analysis. Valerie Ann Lee, PJ Bridgen, & Environmental International Ltd. Published November, 2002. Pg. 119.


** Cornell University Law School, LII/Legal Information Institute. U.S. Code Title 26 > Subtitle I > Chapter 98 > Subchapter A > § 9509.


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