By Kate Conger
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By Rachel Swan
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Forcing a corporation responsible for an oil spill to pay for cleaning up its own mess would strike most reasonable people as fair. Accordingly, the Oil Pollution Act created a "cooperative" investigative procedure that foists the expense of studying and then restoring environmental damage onto the party responsible for the spill.
But the assessment process places significant power in the hands of the polluter beyond the power of the purse. The "cooperative" company is allowed to oversee federal and state research into how much harm the spill did to the environment, help design scientific experiments, and influence the contents of government reports describing environmental damage before the information is released to the public. This route has been taken by the government in the Cosco Busan oil spill.
There are several advantages to the process, according to government officials. It avoids costly and time-consuming court battles. The polluter pays for the research, which provides a funding source for cash-strapped government scientists. And, perhaps most importantly, it speeds the creation and enactment of a plan for healing the environmental damage that has been done. "It gets you to restoration quicker, and you don't actually have to litigate," said Plaisted, the NOAA attorney.
"It has its problems," said one government official, who spoke on condition of anonymity so as to discuss the process candidly. "It takes a long time, and there's a lot of negotiation, and there's a lot of back and forth. It keeps everyone honest. The responsible party pushes their position, and the trustees push their position, and we wind up somewhere that's probably closer to the truth."
Have such benefits come at the price of untoward coziness between regulators and the regulated? Gross thinks so. "The entire legal structure created through the Oil Pollution Act has some significant issues," he said. "The control — if not actual control, at least influence — given to the polluter is troubling. And it's something that rarely comes to the attention of the public."
Even some scientists who have been directly involved in damage assessments under the Oil Pollution Act sometimes question how effective the "cooperative" process is, given the propensity of privately hired scientists to attack or mitigate conclusions unfavorable to the companies that hire them.
Terry Hazen, head of the ecology department at Lawrence Berkeley National Laboratory, has advised trial judges on how best to set up teams of experts to investigate environmental incidents such as the Cosco Busan spill. (Hazen is not familiar with the private consultants involved in the Cosco Busan damage assessment, which he has not participated in.)
Speaking generally, he said the private-sector scientific consultants are sometimes little more than hired guns with limited expertise beyond advancing the interests of their employer.
"I can't believe what they come up with sometimes," he said. "Some of the science is sort of gray, so they emphasize what they think will promote their case and get them a good paycheck."
Richard Carson, a UC San Diego economics professor and expert on environmental policy, said the integrity and effectiveness of cooperation between government officials and polluters on damage assessments depends, in large part, on whether the polluter acts in good faith. It's not always the case that they do.
"The problem that comes about is that there's a big difference in the behavior of responsible parties," he said. "Some very much want to cooperate. Other potentially responsible parties adopt a strategy of fighting everything along the way, and that's because there can be very large financial upsides to delay."
Some familiar with the Cosco Busan damage assessment say the corporate interests behind the ship have taken the latter route.
Fleet Management pleaded guilty last August in federal court to charges of water pollution and falsifying documents, agreeing to pay a $10 million criminal penalty. (The latter charge stemmed from the company's effort to present Coast Guard investigators with false documents to interfere with their investigation of the crash.)
But far more is at stake in the U.S. and California governments' pending civil suits against Fleet Management and Regal Stone. The lawsuits aim to recover cash damages associated with the cleanup and environmental restoration of San Francisco Bay. Cleanup costs alone have been estimated at $70 million.
Officials involved firsthand in the Cosco Busan damage assessment say that private scientific consultants hired by the freighter's owners and operators have tried hard to influence the government's damage assessment, and have pushed back with particular vigor against the findings of the 2009 toxicity study at Bodega Marine Lab. The consultants' interest in softening scientific conclusions that might prove harmful to their employers in the shipping industry has been clear, said Myers, the NOAA scientist.
"They were all over us" during the 2009 phototoxicity study, Myers said. "They don't want to set a precedent. The amounts of exposure here, in some cases, were really low. If they settle in this case, and admit liability, it could really open them up in the future." When asked which of the study's findings have been contested by the Cosco Busan representatives since the report was finished, another government official, who spoke on condition of anonymity, had this to say: "Everything."