REGULATORY ILLUSION

BRIAN HOREJSI

a bout th e author
Brian L. Horejsi is a wildlife scientist with a PhD from the University of Calgary and a BS in forestry from the
University of Montana. Formerly a range management forester for the Alberta Forest Service, he has conducted studies of grizzly and black bears, bighorn sheep, moose, and caribou, and for more than two decades he has been a conservation biology consultant and activist focused on preserving biological diversity. He lives in the Rocky Mountain foothills.

This publication is an excerpted chapter from The Energy Reader: Overdevelopment and the Delusion of Endless Growth, Tom Butler, Daniel Lerch, and George Wuerthner, eds. (Healdsburg, CA: Watershed Media, 2012). The Energy Reader is copyright 2012 by the Foundation for Deep Ecology, and published in collaboration with Watershed Media and Post Carbon Institute. For other excerpts, permission to reprint, and purchasing visit energy-reality.org or contact Post Carbon Institute. Photo: George Wuerthner. A working oil well near the Oklahoma capitol building suggests the pro-drilling attitude in many oil-producing states.

Post Ca r bon I nst i t u t e | 613 4t h St r e et, Su i t e 208 | Sa n ta Rosa, Ca li for n i a 95404 USA

The 2010 Deepwater Horizon oil spill in the Gulf of Mexico briefly focused attention on how the oil and gas industry exploits public resources with little or no accountability. But the larger Pull quote problem here of lorem how corporations ipsum and governments engage in dolor a charade sit amet of regulation proceeds largely unnoticed. This sham regulatory process has failed to stem the large and growing ecological, social, economic, and democratic costs thrust on the public.

here are few people in North America who were not aware of, and to some degree disturbed by, the oil slick that began squeezing the aquatic and terrestrial life out of the Gulf of Mexico as a consequence of the 2010 BP Macondo well (Deepwater Horizon) drilling disaster. As was the case with the 1989 Exxon Valdez spill in the Gulf of Alaska, the full extent of the damage will take decades to manifest itself. If anything positive can be gleaned from this catastrophe, it is that some of the American people and some of the more progressive media are beginning to realize that the oil and gas industry owns American government regulators, a failure of democratic governance that stretches back at least to 1981 when Ronald Reagan brought his deregulation club to Washington. Other realities are being exposed as well, foremost among them that the oil and gas industry makes an awful lot of money by drastically minimizing the risks of practices that have severely damagedquite likely for a very long timenearly continent-size ecosystems. None of these observations are new to people who monitor or investigate the oil and gas industry. The citizens and organizations that work to expose the truth about the industry are not trying to be secretive, but their message has been muted; for decades now, they have been exposed to a crippling campaign of exclusion by mainstream media. Industry watchers have suffered

from media suppression, ridicule, and abuse, as well as political, social, and economic persecution fueled by a constant barrage of industry misrepresentation. It is a common deceptioncarefully constructed like a house of smoke and mirrors by regulators, politicians, and the oil and gas industrythat a fair, systematic, scientifically legitimate, and deliberative process exists through which a company must proceed in order to drill a well or lay pipe, whether it be in the rolling hills of Wyoming or the rippling waters off Louisiana. The public believes that regulators, the men and women who wear the title public servant, engage in objective and inclusive analysis of the ecological, economic, and social impacts of any proposed development in order to gauge the merits of an application. The reality, however, is that the oil and gas industry, collaborating with governments swayed by campaign funding, has hijacked what should be a legally protected, scientifically sound, accountable, and highly public process. Just months after the Deepwater Horizon disaster, a major Washington Post article by journalists Juliet Eilperin and Scott Higham described a cozy decades-long relationship between the oil industry and the federal agencies that were supposed to be regulating it.1 The story begins with the 1970 National Environmental Policy Act (NEPA), which gave government agencies authority to require an environmental impact statement for
1

Hor ejsi

R egul atory Illusion

drilling (and related) activities. The oil industry howled, and the intense resistance led to regulators becoming increasingly willing to grant exemptions. In 1978, under President Carter, the White Houses Council on Environmental Quality allowed agencies to make categorical exclusions from the law within certain guidelines. In practice, this flexibility led to many projects being substantially exempt from environmental assessment and reporting. As Eilperin and Higham describe: Under Clinton, categorical exclusions granted in the central and western gulf rose from three in 1997 to 795in 2000. During the Bush administration, [the Minerals Management Service] granted an average of 650 categorical exclusions a year in the region. The number of categorical exclusions dipped to 220 during the Obama administrations first year. One went to BPs Macondo well. Short-circuiting environmental impact assessment quickly spread to other agencies, as well as on to land. In fiscal years 2006 and 2008, the Bureau of Land Management granted at least 6,087 categorical exclusions for applications to drill on land in the western United States. The BLM even hired more staff to accelerate approvals.2 Imagine if you expected to winand in fact did winthe lottery nearly every time you bought a ticket. That is the equivalent of the permitting system to which the oil and gas industry has become accustomed. A reasonable observer would call that a rigged and corrupt system. On the other hand, you may, like many Americans, believe that ecological viability is important. You may believe that the American people have legitimate expectations and visions for public resources that include fully protected, ecologically functional wild land and water systems. You may argue for conservation options to satisfy that vision, and expect that your participation in democratic advocacy for the common good will be treated fairly as you make your case before those same regulators. Yet, unlike those who seek to profit from exploiting public lands, you will be lucky to win that lottery more often than once or twice every hundred times you play, perhaps only stopping or mitigating a handful of proposed energy projects during the course of a conservation career.

For the public, a victory would be to maintain the functional integrity of roadless landscapes, keep wildlife habitat intact, protect seashore and inland wildlife refuges, safeguard shrimp beds, or guarantee in perpetuity, as best we can, ecosystem viability. It might take the form of denying an application because the environmental impact statement was grossly inadequate. Or it could mean rejecting industry proposals to extract energy resources from beneath a public landscape considered by citizens to be of great social or ecological value. Americans are entitled to be angry that these kinds of victories are rare, that extractive industry is favored over conservation time after time, location after location, year after year. This is the North American regulatory system we have been hamstrung by. It is virtually identical from state to province to federal jurisdiction; it has authorized the drilling of at least 500,000wells on land and another 50,000wells off shore. The real world ecological impacts of these actions are severe and growing, touching every part of the continent and affecting the chemistry and temperature of the global atmosphere. The regulatory apparatus necessary to constrain the ecological impacts of the oil and gas industry have failed, largely because the political will to substantivelynot just cosmeticallycorrect the situation is effectively zero. Sadly, the might of American citizens lies largely dormant. We readily can envision the oil slick that polluted the Gulf of Mexico as a result of possible negligence by BP and the U.S. Minerals Management Servicean oil slick hundreds of miles long, not unlike an iceberg with a huge flotilla of loosely coalesced oil somewhere below the surface, large enough to engulf entire states. Recall the environmental destruction we know was caused: dying birds coated in brown gunk; fish gasping and flopping; plants being choked by a sickly brown dressing; turtle, frog, fish, and birds eggs, young, and adults dying from contact with toxic, oxygen-choking oil. That spill was notable not just for its scale, but because much of it was visible to the human eye, and because, for a brief time at least, the attention of the public and the media were focused on the oil and gas industry. Now
2

Hor ejsi

R egul atory Illusion

think of this: What if the oil slick had been invisible to the untrained eye? What if the Gulf s living diversity just began to collapse, the fish, birds, and marine mammals gone, dramatically reduced in number, or absent from places theyd frequented before? Would anyone have been there to film and document the disaster, to take measurements, to monitor, to record, to speak up? And yet that is what is happening to the natural world, both on land and in the oceans everywhere we look. The everyday practices of individuals and corporations, including the fossil-energy-extraction industry, quietly kill, choke, manipulate, degrade, and deplete the ecological vitality of ecosystems the way a catastrophic oil spill does, although perhaps more slowly. But virtually no one, particularly those whom we thought were there to protect our interests, has been paying attention. The assault on the biodiversity of North America by the energy industry is not new; but it has certainly ratcheted up in recent years, particularly at the turn of the twenty-first century. Powerful people such as former vice president Cheney have increasingly wielded political influence over the regulatory process on behalf of the oil and gas industry. These interventions generally are intended to eliminate options that could protect ecosystems, and they lead to two destructive outcomes: essentially unfettered access by the industry to public resources, and erosion and avoidance of regulatory and accountability procedures. Most North Americans, even those living near the affected lands, have been and remain unaware of the land-based ecological equivalent of an industrial oil slick that has spread across vast areas of North Americafrom the coalbed methane fields of eastern Montana and Wyoming, to the shale-bed fields of North Dakota and Pennsylvania, to the conventional oil and gas fields of Texas, Utah, Alberta, and Prudhoe Bay, Alaska. The cumulative impacts of roads, pipelines, pits and berms, leases, compressors, vehicles, power lines, wells, processing plants, refineries, and other associated infrastructure remain mostly out of sight and out of mind to

the broad public. This maze of infrastructure is obvious to some people, but the impaired function of a tattered ecosystem is rarely obviousand people across the continent remain uninformed and unaware as the invisible slick grows by the day. Like the changes necessary to reverse the growth of greenhouse gas emissions, only drastic regulatory interventionhonest and true reformcan begin to reverse the industrial takeover of our democracy and the depletion of the Earths ecological life-support systems. A regulatory process built on resistance to growth and consumption will be our only salvation.

Hor ejsi

R egul atory Illusion

en dnotes
1 Juliet Eilperin and Scott Higham, How the Minerals Management Services Partnership with Industry Led to Failure, Washington Post, August 24, 2010. 2 U.S. Government Accountability Office, Energy Policy Act of 2005: Greater Clarity Needed to Address Concerns with Categorical Exclusions for Oil and Gas Development under Section 390 of the Act, GAO-09-872 (Washington, DC, September 2009).

Overdevelopment and the Delusion of Endless Growth

Edited by Tom Butler and George Wuerthner
We have reached a point of crisis with regard to energy... The essential problem is not just that we are tapping the wrong energy sources (though we are), or that we are wasteful and inefficient (though we are), but that we are overpowered, and we are overpowering nature. from the Introduction, by Richard Heinberg

ENERGY

In a large-format, image-driven narrative featuring over 150 breathtaking color photographs, ENERGY explores the impacts of the global energy economy: from oil spills and mountaintop-removal coal mining to oversized wind farms and desert-destroying solar power plants. ENERGY lifts the veil on the harsh realities of our pursuit of energy at any price, revealing the true costs, benefits, and limitations of all our energy options.
Published by the Foundation for Deep Ecology in collaboration with Watershed Media and Post Carbon Institute. 336 pages, 11.75 x 13.4, 152 color photographs, 5 line illustrations. $50.00 hardcover, ISBN 978-0970950086, Fall 2012.

The ENERGY Reader

Edited by Tom Butler, Daniel Lerch, and George Wuerthner What magic, or monster, lurks behind the light switch and the gas pump? Where does the seemingly limitless energy that fuels modern society come from? From oil spills, nuclear accidents, mountaintop removal coal mining, and natural gas fracking to wind power projects and solar power plants, every source of energy has costs. Featuring the essays found in ENERGY plus additional material, The ENERGY Reader takes an unflinching look at the systems that support our insatiable thirst for more power along with their unintended side effects.
Published by the Foundation for Deep Ecology in collaboration with Watershed Media and Post Carbon Institute. 384 pages, 6 x 9, 7 b/w photographs, 5 line illustrations. $19.95 paperback, ISBN 978-0970950093, Fall 2012.

Visit energy-reality.org for book excerpts, shareable content, and more.