REVISITING THE BP OIL SPILL: INTERVIEW WITH AARON SCHWABACH AND KRISTIAN GUSTAVSON

By David Huang and Shweta Mukesh

Scripps graduate student Kristian Gustavson, and Professor Aaron Schwabach of the Thomas Jefferson School of Law were invited to UCSD to present their analysis of the BP oil spill from scientific and legal perspectives, respectively. Kristian Gustavson, who has made multiple trips to the Gulf region to conduct studies, specializes in the study of the Mississippi Delta. Professor Aaron Schwabach focuses his work on international environmental law, and has taught the subject for over 20 years.

In his account of the BP Deepwater Horizon oil spill, Kristian Gustavson highlights the level of disorganization and the coordination failures from both local and national level agencies. He characterized the initial response to the oil spill as inefficient and “an overall mess”. He attributed the inefficiencies to the recklessness and impatience of politicians. Instead of waiting and listening to the scientific community, government officials and agencies pushed solutions and ideas which had well-known repercussions.

“A lot of people there have asked me, ‘How bad is the oil spill?’”, Gustavson said, “People always want answers, but science won’t always have answers right away. It is the job of science to take the time to do research to come up with rational and most importantly, the correct answers.”

In his presentation, Gustavson cites numerous follies of actions taken by local and national agencies to mitigate the problem. One of the key mistakes, Gustavson contends, was dumping dispersants into the contaminated water, which diffuses the concentration of the oil, but at the cost of stratifying it in different levels of the water column and causing greater harm to the biota.

“I’ve never seen a dead sea turtle or a dead dolphin in my life, so to see the two right next to each other on the beach was nothing short of a rude awakening,” said Gustavson.

Gustavson largely attributes the headstrong behavior of various agencies to leaders’ desires to appease a disgruntled public. He sees much of the mitigation techniques such as oil burning, dispersants and sand barriers as counterproductive methods of temporarily pacifying a constituency whose livelihood was at risk.

Yet, looking forward, Gustavson maintains an optimistic view on the future of the recovery and restoration process following the disaster. In addressing the steps needed to go forth today, six months after the spill, Gustavson emphasized the importance of collective action of American society as a whole in reducing waste and cutting down on pollution, which compounds the current problems in the Gulf. He also stressed that preserving the Mississippi Delta is just as large, if not larger, of a priority as cleaning up the Gulf.

“The real problem in this region cannot be simplified to just land loss or oil pollution—it’s that it’s been underexplored and overexploited in the last century,” Gustavson says.

Professor Aaron Schwabach further highlighted the detrimental impact that the Deepwater Horizon spill has had on the environment. “The [BP incident] is not an oil spill like other oil spills. The order of magnitude in this situation is much larger, and hence, much more serious”, said Schwabach.

Professor Schwabach drew comparisons between the BP Deepwater Horizon disaster and the Trail Smelter case in the 1930s wherein the apple crops of Stevens County, WA suffered due to sulfur dioxide emissions from a smelting plant in Trail, British Colombia. The Trail Smelter case resulted in compensation by the Canadian government to the U.S. government for damages claimed by residents of Stevens County.

“Every state has responsibility to prevent acts within its territory that will cause harm to another state,” said Schwabach, “Has Britain committed an international environmental violation against the United States? Of course it has. Something happened in London—plans were made—and harm fell upon the United States.”

Professor Schwabach explained the compensation procedure, which BP has been undertaking in the previous months as part of BP’s liability as creators of externality. Citing the “Polluter Pays” principle, Schwabach explains that external costs, such as pollution, created by an organization should be internalized by the polluter. In the BP case, since environmental costs have been born by residents of the Gulf Coast, the BP Company, and by association, the United Kingdom, are obligated to pay reparations to those harmed by the oil spill.

PROSPECT had the chance to interview the two speakers after the talk.

PROSPECT: If countries followed the standards set by international treaties, would the number of oil spills be reduced and clean-up efforts become more efficient?

AS: UN treaties and most international treaties are not enforceable. Yet to a large extent, nations abide by them because they want other countries to follow international law. Treaties are like contracts. From a legal standpoint, I do not believe that rectifying international law will aid clean-up efforts in the Gulf. In this case, BP cheated. The U.S. was being treated like a resource colony. What BP did was illegal in both the U.S. and in Britain. No amount of regulation or international law can limit events like this.

PROSPECT: How has the Gulf oil spill changed the way we treat and respond to environmental law?

AS: I do not believe that the magnitude of the Gulf has sunk into people yet. The BP oil spill is the largest spill in the U.S. and it occurred in a touristic area. Given the above, environmental law has become increasing popular and valued.

PROSPECT: Currently, the U.S. is not pressing charges against the British government nor is the U.S. government taking BP to the International Court Justice (ICJ). If the U.S. chose to make the oil spill an international legal issue, what would be the procedure and ramifications?

AS: U.S. cannot take Britain to the ICJ. Both America and Britain have had different policies towards others in matters of international justice. As a result, the only option available would be arbitration. In a case of arbitration, there would be three mediators–in this case, there would be one representative from the U.S., one representative from Britain, and one neutral representative chosen by both nations. The neutral representative would decide which nation is guilty and a certain amount of money would be given to the victimized nation. The current policy involves corporate liability. BP is paying a total of 20 billion dollars in different installments. This money will be kept for later damages, claims, and clean-up efforts.

PROSPECT: In late July, Time Magazine published an article downplaying the ecological damage caused by the oil spill. The central source of their article, Ivor van Heerden, a former LSU professor, likened the damage of the spill on the environment to “a sunburn on a cancer patient,” suggesting that the impact of the oil spill is more or less inconsequential in the face of preexisting ecological problems of the gulf. What is your evaluation of this view?

KG: During my visits to the Gulf area, I have had the chance to work with [Ivor van Heerden]. And in certain respects, I believe there is merit to his statement. It is true that in relation to preexisting problems in the Mississippi delta, such as land loss, the BP oil spill is only a temporary problem. However, I would not discount the gravity of the spill simply because larger problems loom in the background. The Mississippi Delta is an area that has been underexplored and overexploited. If anything, due to the fragility of the ecosystem, the impact of the oil spill is augmented.

PROSPECT: What is your evaluation of BP’s handling of the oil spill?

KG: BP has technological and financial capability. However, that advantage was lost in the initial stages of the spill. BP chose to compromise transparency- they consistently chose to under-report the volume of oil spilled. It’s true that there was lots of pressure to keep things out of the spotlight, but practices like underreporting kept us from responding appropriately. Certainly in this case, downplaying and quelling our fears did not make things better.

PROSPECT: Did we know the negative effects of dispersion, burning oil, and other clean-up efforts? If so, why did the government choose these strategies?

KG: Yes- we knew the negative effects. However, people wanted to see the government making efforts to clean the gulf. Oftentimes, the best environmental solution is to leave the oil there. If you remove oil, more oil will come back to the shore. The public did not want to see oil on the shore and government inaction. As a result, the government chose to pursue clean up efforts which were not effective and caused further environmental damage.

PROSPECT: What should have been done to better the clean-up efforts?

KG: We needed to bring more consultants. There were multiple research groups that wanted to study and aid the cleanup efforts. However, they did not get needed funds to conduct experiments and create an optimal solution. In an ideal world, we should not have let BP decide what needs to be done. We needed their equipment. However, there should have been more transparency and the U.S. government and scientists should have been dictating and directing the efforts. There was a lot of pressure to keep the oil spill out of the limelight. Officials were openly bribing scientists and preventing researchers from entering the region.

PROSPECT: Looking towards the future, what should be the next steps to clean up this area?

KG: The only large-scale solution is to use the Mississippi River. We need to clean the river and lower the levies. We should allow the Mississippi River to flow into the Gulf. This would dilute the concentration of oil and other pollutants. However, we are not doing this. We are washing away the only probable solution we have and downplaying the situation at hand.

Photo of an oil-soaked beach in Grand Isle, Louisiana taken May 23, 2010. Courtesy of John Moore/Getty Images.

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