 We're going to have a brief transition here. Panel one is going to get established up in the front. And we actually have somebody on panel one who's going to make administrative law very interesting, I promise, one of the leading ruling professors and authors in that field. So just a couple of other things while we're getting settled. We have asked each panel to address a common question, to kind of tie in all the multiple layers of this particular issue. So panel one, their question is, what do you think was the single most significant factor that contributed to the magnitude of the Deepwater Horizon event? And these questions are intended to elicit perhaps some different opinions and really kind of nail them down a bit, if you will. One more other housekeeping thing that I do want to note, especially for presenters, school's still in session here at the law school. And the law students will tell you it's a very busy time of year, especially because we had so many snow days this year. So there's lots of makeup classes. So students and faculty will be ebbing in and out throughout the day. Don't be offended, don't take it personally if you're speaking. And a few people get up and leave, they're just, they're going to school. That's all, and they gotta get to class. So without anything else, I'd like to introduce Professor Michael Berger, my good colleague and friend here at the law school. He teaches environmental and ocean and coastal law and literature. He comes from a background of doing environmental compliance in New York. And also, and I didn't know this about this till I read his bio, a background in some journalism, and we have a journalist on this panel. Because our schedule is tight, we're not gonna do extensive introductions of each speaker. I've asked the moderators to just give you the most salient one or two things so you can idea. But we have full bios in the program. I encourage you to read the bios and see the impressive backgrounds of each of our speakers. So, Michael? So I'll just, I guess my role here is just to give you the brief introduction. And I'm gonna introduce the speakers in the order that they're actually going to be speaking in, which is neither how they're arrayed here, nor how it's laid out in the program. And then Susan, I believe, is gonna be the taskmaster on the timekeeping. And afterwards, we'll open it up for questions time-permitting. So, our first speaker will be Juliette Eilperin, who is the national reporter for The Washington Post and covers environmental and ocean issues. And has covered the Gulf oil spill in some detail. Following Juliette, we will hear from Sid Shapiro, who is a professor at Wake Forest Law School. And also the associate dean of research there. And for those who are in the room, who are in my administrative law class, you'll note that Professor Shapiro is one of the casebook authors. And so when I refer in class to, well, what the casebook authors here are saying, today is your chance to prove me wrong. I'm following Professor Shapiro, we'll hear from Steve DePont, who is an attorney in the office of maritime and international law at the US Coast Guard. Then Dave Westerholm, who is the director of NOAA's Office of Response and Restoration. And finally from Garrett Graves, who is the director of the Coastal Protection and Restoration Authority in Louisiana. So it should be fascinating. And Juliette, I'll turn it over to you to get us started. Thank you. So what I'm gonna do is essentially put meat on the bones of what, for example, Senator Whitehouse was talking about, without ever using the term regulatory capture. So here, because I'm not a lawyer, I'm just a journalist. In the run up to the Deepwater Horizon explosion, the federal government's Minerals Management Service adopted at least 78 industry generated standards at federal regulations. According to the American Petroleum Institute, the trade group that represents the industry. Two weeks after BP's McConda Well blew out in the Gulf of Mexico, MMS finalized a regulation intended to control the undersea pressures that threaten deep water drilling operations. Like dozens of other rules that was written by API. And the agency only received a couple of comments on the regulation, both of which were from industry. One was from the Offshore Operators Committee and then the other was from BP itself. The regulation stated, BP, a large oil and gas company, expressed the importance of this rule and how they have been involved with MMS and industry to develop the industry standard. That really typifies the kind of cozy relationship that we'll be examining and how an agency that was charged by law to quote, meet the nation's energy needs, formed a partnership that had such disastrous results. The officials from the top as well as rank and file employees referred to the companies under their observation as clients, customers, and most often partners. They waived hundreds of environmental reviews and didn't aggressively pursue companies for equipment failures. They participated in studies that were funded and done by the industry and its contractors. And when the industry resisted certain proposals, MMS usually jettisoned them, noting that they would increase costs even as they might improve safety. And essentially this stemmed from the inherent conflict of interest that was embedded in what the agency was doing. It was one of the nation's largest revenue collectors, only second to a couple of agencies including the IRS. Ironically, MMS was born out of a drive for reform. For years, the US Geological Survey had been in charge of assessing what our natural resources were when it comes to oil and gas and making those decisions. But there were allegations of fraud. This was in the late 70s. And so it was James Watt, Ronald Reagan's Interior Secretary who created the agency in 1982 that would not only lease tracks for exploration and collect the government's share of oil and gas revenues. But, and this was a key change that WAMP made, it would regulate the industry as well. And that is the built-in conflict that the US has been living with ever since. At first there was this push and pull between regulators and in the executive and the legislative branch because essentially Watt under Reagan was pushing for more and more extraction offshore. And he encountered a lot of resistance from actually, at that point, a bipartisan coalition in Congress, particularly in New England and the Pacific Northwest. So for example, when he proposed drilling an 81 off the Pacific Outer Continental Shelf and off Georgia's Bank in Massachusetts, obviously not too far from here, it was a couple of members of Congress, less of Coyne and Silvio Conte, who used their post on the House Appropriations Committee to block him. And what happened there is something that I think also bears some examination in terms of what happened in the Gulf, which is that Congress proceeded to impose a series of moratoriums on where drilling could happen. And so for example, they started by just saying that he couldn't drill in those two areas from 82 to 92, the territory that was declared off limits expanded from 700,000 acres off the California coast to more than 266 million acres off the Pacific and Atlantic coast, Alaska's Bering Sea and the Gulf Eastern portion, the Gulf of Mexico's Eastern portion. But all of this put more and more pressure on drilling in the central and western Gulf. And that has continued to this day. So this continued under actually President George H.W. Bush, who expanded the restrictions. He canceled sub-release orders by executive order, established a marine sanctuary off California's Monterey Bay, and bought back tracks from South Florida. As a result, today the Gulf is home to 99% of the nation's offshore oil production of the 911 new wells in the past two years, all but 13 were drilled in the Gulf. And one of the things that's interesting when I started examining this issue in the wake of the BP oil spill was looking at how really this was, it's not just that one party was part of this issue, it was actually both. So for example, President Clinton did very little to enhance protections in the Gulf. His Interior Department began to emphasize performance based regulation on the assumption that the industry was better positioned than the government to determine which practices worked. When it came to MMS efforts like this and the reinventing government initiative that was championed by then Vice President Al Gore, exacted a cost. For example, MMS was ordered to do a better job of collecting moralities while losing nearly 10% of its staff over the next five years. And so again, that's part of what you really saw happen, that more and more demands were being placed on an agency that not only had a conflict of interest but simply didn't have the resources, the compensation for its employees to do adequate oversight. It was in October of 1993, under the Clinton administration, that an interior panel issued findings aimed at future drilling policies called Moving Beyond Conflict to Consensus. And this really represented a paradigm shift that continued on for the next decade or two. It was chaired by an oil drilling company executive, and it urged a reversal of restrictions championed by the previous decade, including by Bush and many members of Congress. It recommended interior lift moratoriums essentially make it easier to drill in the Gulf. Less than two years later, after the panel issued these recommendations, Congress got into the act as well by passing the Deepwater Royalty Relief Act, which exempted companies that drilled on certain leases from paying royalties. This was backed, particularly, by, say, people like J. Bennett Johnston, a senator from Louisiana who consistently championed the cause of oil companies, later became a lobbyist for the American Petroleum Institute, which he still is, as well as sat on the board of a major oil company. And in the end, it was actually MMS, at the end of the Clinton administration, it was MMS itself, which issued a warning to Washington. There was a little lotus budget document that my colleagues got high on, and I discovered in the course of our reporting, where the agency said in 2000 that the burgeoning number of Deepwater Wells had made overseeing operations in the Gulf of Mexico more complex. The number of companies had grown from by 30%, and many of the employees were new, that were looking at the drilling operations. MMS cautioned, the offshore industry significantly downsized in the 1980s, the presence of workers without offshore experience is placing an add and burn on the inspection and compliance program. But this did nothing to heed exploration in the Gulf. When George W. Bush came into office, the push for broader oil and gas exploration only accelerated on January 29 of 2001, shortly after nine days after taking office. Bush created the energy task force that his vice president, Richard Cheney, chair, where, as I'm sure many of you are aware of, they brought in oil and gas executives to provide recommendations, most of which were codified by the Bush administration, either through an executive order or through simply policies that the Interior Department pursued under Gail Norton, the Interior Secretary. The report that the energy task force issued on May 16 said that drilling in the under continental shelf had, quote, impressive environmental record, and that state and federal regulations were interfering with exploration and needed to be relaxed. So Norton and her deputies, J. Stephen Grylls, embraced this report that Grylls had issued a memo to the White House Council on Environmental Quality on August 22, 2001, and said, Interior was, quote, fully committed to playing a role in this effort and that it had, quote, a special interest and expertise in expanding production. And that's exactly what we saw. Throughout Norton's tenure, they adopted regulations that made it easier to drill without the same level of environmental oversight. This included, say, for example, rejecting studies that suggested that the blind sheer rams, a crucial stopgap measure in the event of failure, should be strengthened and reinforced. That wasn't adopted, basically several different things. They also, in 2005, finalized a policy that, again, had been proposed by the Clinton administration, where MMS told companies that they did not have to provide detailed blowout and response scenarios for each exploration plan. This, obviously, became critical. Sure, that became critical later on. MMS was asking for budget increases, but basically didn't get them. And then while Interior had talked about how offshore drilling could qualify for environmental exemptions as far back as 1980, this exemption became widened over time. And it's worth looking that they did something called the categorical exclusions, where essentially anyone proposing to drill did not have to do detailed environmental reviews. Under Clinton, these categorical exclusions granted in the Central and Western Gulf of Mexico rose from three in 1997 to 795 in 2000. During the Bush administration, MMS granted an average of 650 categorical exclusions. And while it dipped to 220 during the Obama administration's first year, one went to the Macondo well. I'm sure you've read about the relationship they had on the ground. One of my favorite quotes from an Inspector General report on the Lake Charles office in terms of MMS is that an agency employee who was dating an inspector said her boyfriend told her that the time he and other inspectors spent out on platforms basically amounted to many vacations. She told agents that inspectors eat like kings, they watch corn, and they take naps. Those were the people who were responsible for looking at the safety on rigs in the Gulf of Mexico. So essentially, I think it's also worth noting that while clearly the people see the spill as this one in a million event, when you look at the presidential oil spill commission's report, which came out recently, it identified 79 loss of well-controlled accidents in the Gulf of Mexico between 1996 and 2009. Obviously, they didn't go disastrously wrong, but you can get a sense that there was a problem, and this was not just an isolated incident. And I think we can talk about this in the discussion, but one of the things obviously I've been looking at since then is all the different ways that basically the Obama administration has sliced and diced the successor agency, the Bureau of Ocean Energy Management Regulation and Enforcement, which is in fact getting split into even more parts in an effort to kind of address this conflict of interest. In conclusion, I just wanted to quote Michael R. Bromwich, who's been brought in to head this new agency and is overseeing the kind of reform that's going on right now. And in February 11th, he gave an address to the James A. Baker Institute's energy forum at Rice in Houston, and he raised this fundamental question. The Gulf accounts for more than 25% of domestic oil production and approximately 12% of domestic gas production. One of the key problems that we are addressing and that cannot be avoided is this. How will government and industry make the fundamental reforms necessary to improve safety and environmental protection in this massive industry, while at the same time allowing for the continuity of operations and production? This is the central question that frankly has been facing the federal government since the creation of MMS and is really one of the key issues that we'll have to navigate in months and years ahead in order to ensure that it can balance both exploration and safety. Thanks. Just a couple of things which I probably should have mentioned in advance. One is all the presentations are being recorded and speakers that are using PowerPoint presentations, they will all that will be on our website after the conference, so especially students who are feverishly trying to keep up with taking notes. Don't need to worry about it. It's all gonna be there for you. And speakers, if you could do our photographer a favor and dispense with the happy name tags that we gave you just for your speaking, because he likes it better without the name tags. All right, I'm gonna get your presentation loaded up while you do an intro. I'm standing behind you all. Yeah, no, that's okay. I don't know what more to add to the intro I already gave. Vamp. Vamp it up? Okay. Tell a story while you're waiting. So this is about administrative law, right? And it's supposed to be interesting, which is always a real challenge. It's reputation among students is among the most boring courses you could possibly take. Justice Breyer, when he taught administrative law at Harvard reports, he once got a student evaluation. And you know that portion on the bottom after you fill in the little ovals where you get to write? Some student wrote him Professor Breyer, as he was then. If I only had one day to live, I'd want to spend it in your class where every moment seems like an eternity. Now that I've set myself up for family. Is this yours? Is this your presentation? I'm sorry, I'm having a hard time finding it. Hang on, tell another story. That was great. Yeah. Well, let me start my talk without the PowerPoint. I have, and you can't count this against my time. You're good, here we go. Okay. There we go. So I would like to continue along the theme of regulatory capture, which Senator Whitehouse discussed. And because I'm a professor, I'm gonna do it slightly differently and a little more theoretically, but at the end we come out about in the same spot. The Gulf Oil Spill largely was attributed to regulatory failure, and I don't have time to point out the many reasons for that, but I would suggest you might take a look at two reports by the Center for Progressive Reform, of which I'm a member and the vice president. We're a group of about 70 law professors and some other professors across the country with a small Washington staff, and we came out with this report before the commission. It says many of the same things that Juliet talked about, but ties a little more to the law. We have a second report about the topic that'll come out this afternoon, which is the civil justice system and the potential liability and limits thereof. If you're more interactive and you wanna get some of the same information, here's a really cool map we have, and when you click on all those little bubbles, you can learn about the intersection of policy and law and regulatory failure in the Gulf. Administrative law is supposed to prevent these things. It's supposed to bring accountability to the regulatory process, and it does that by enabling public interest groups to be watchdogs. There's various ways that's done, but a primary one is groups get to file comments on proposed regulations and then take agencies to court if the regulations are inadequate. But the reality is there's limited public interest participation and often strong internal agency resistance to what the public interest groups are saying if they even show up. Empirical research shows that regulatory entities, the oil industry and others, file many more comments than public interest groups and attend many more meetings with the agencies. And often there are no public interest comments, as Julia pointed out on the last regulation of MMS. The result then is a kind of capture where inevitably agency policy gets tilted towards the interests of the regulated entity because of this asymmetry. No matter how much regulators intend to serve the public interest, a process of negative feedbacks will produce shifts towards positions espoused by the regulated industries. Even if regulators are aware of the arguments for strong regulation, they resist it for three reasons. First, when a business-friendly administration is in power, it appoints administrators who are hostile to regulation. Second, because they have to have expertise agencies often recruit people from the industry being regulated and there's some resistance to strong regulation because those people intend to go back and work for the very industry, they just left. Finally, and most pernicious, there's a kind of deep capture when regulators adopt the point of view of the regulated industry. This can occur because regulators work closely with industry representatives and as a result they absorb industry norms. In our report, we quote an MMS district manager who told an investigator, obviously we're all oil industry. We're all from the same part of the country, almost all of our inspectors have worked for oil companies out on those same platforms. They grew up in the same town, some of these people, they've been friends all their life. They've been with these people since they were kids. They've hunted together, they fish together, they skeet together, they do it all the time. Or there may be a structural conflict of interest. This occurs when the same agency is responsible for promotion of the success of the industry and for regulating it and as Juliet told you in the case of MMS, its budget was tied to the amount of drilling, creating a huge conflict of interest. So what to do? First, as Senator Whitehouse pointed out, more transparency would be a good idea. I also support the idea of website disclosure. First, I would have agencies have public calendars where every time they have a meeting with anyone, they post the nature of the meeting and a summary of it. So those of us on the outside can see what's going on. And secondly, as the Senator would like to force, it's very important to have statistics on the number of meetings by type of group and the number of comments by type of group. Now earlier I pointed to empirical studies of the rulemaking process, which demonstrate that industry shows up and for the most part, public interest groups do not. Those stories are extraordinarily laborious to do because you have to download the entire calendar of comments and meetings and then you have to count them all up and categorize them. Moreover, the studies that have been done deal largely with EPA because it's the only agency that actually puts the meetings and summaries of them on its public docket. So we don't even have that information for other types of agencies. Third, in a book that I recently published with Professor Reena Steinser at Maryland Law School, we recommend that agencies be required to produce what we call indicator reports or positive metrics. And what these things would do is measure the level of regulatory performance. They'd be hard to do and we want them to be relatively simplistic, so they're accessible to the public. But they would do something like reveal key parts of information which would indicate to us over time whether or not regulation is happening or failing. So for example, the FAA has a category of near misses. When the planes come too close, that has to be reported. MMS should have had a category of near misses. So if we can see the number of near misses are going up over time rather than going down over time, it becomes a red flag and then we can begin to investigate the reasons for regulatory failure. It may be capture, it may be other things. The indicators wouldn't tell us the reasons for failure but they would alert us to the continuation of failure over time and then Juliet and others could report on it. CPR would notice this and other public interest groups and we could try to do something with it. It's also important to strengthen the public service. Agencies need more resources. Again, as reported, MMS resources were actually declining. They had an amazingly few inspectors for all the platforms that they had to cover in the Gulf. More than that, we need more resources so the agencies can hire more professionals because if they hire more professionals then we could slow the revolving door because agencies would have in-house expertise to accomplish that. Next, resources are important because we not only have to hire good people, we have to retain them. And this is not a Herculean task. Agency budgets, MMS or actually the totality of the regulatory agencies are account for such a small part of the federal budget that we could adequately fund all of these agencies and it wouldn't make one bit of difference really to either the annual budget or the deficit. We've got huge deficit problems, we'll have to solve them but solving them on the back of the regulatory agencies makes no sense at all because they simply don't account for enough of the money that we spend to make any difference at all. Finally, and most deeply, we have to make public service attractive again. We have to be able to recruit people like the young people in this room, make it attractive to become a federal bureaucrat and to stay a federal bureaucrat. And this is going to require some self restraint on the part of our politicians so this may be mission impossible but when every politician in Washington makes it a habit to bash bureaucracy at every turn it's a little discouraging to go into public service and it's certainly discouraging to the people who are there who are trying to do a good job under difficult circumstances. Finally, we have to reduce conflicts of interest. You again heard Senator Whitehouse talk about this and we have laws to do this. We have timeout requirements for example, wherein people go through the revolving door and they come out the other end. They're supposed to sit out for a certain amount of time. I'm not sure those are terribly well enforced. I'm not sure you can enforce them very well. So it's very important to establish an ethical culture in the agencies and outside the agencies. We need an ethical culture in which a former regulator or a regulator recently hired from industry would refuse to participate in any manner in which they were involved in their former jobs. And then Congress has eliminated the conflict of interest that existed in MMS by creating Bomer but I think there's still a problem. At the end of the day this agency reports to the Secretary of Interior. So that invites his office to become conflicted over the same issues of regulation and obtaining revenue through drilling leases. So I would make Bomer an independent agency in the Department of Interior so that his appointees do not report to the Department of Interior. There's precedent for that. The Federal Energy Regulatory Commission is an independent agency in the Department of Energy and we could do the same. So to sum up, as the Gulf oil spill proves every day we can't afford regulatory failure. Addressing regulatory capture is a daunting job. It's time to start. Actually it's past time to start. Thank you. You said while we're pulling up the next PowerPoint and getting ready to hear from Steve, right? I guess I have a quick question, a follow-up question both for Juliette and for Sid which is about Bomer. You mentioned Juliette during your talk that it had sort of divvied up responsibility and I guess that for the people in the room who aren't aware of exactly how it's divvied up among the agencies it might be good to sort of spell that out a little bit. And then I'm just curious from each of your perspectives, is it proving effective in addressing either the cultural kind of problems that you raised Juliette or the institutional problems that you're raising should other than the conflict of interest at the interior level. So Juliette. Sure. So basically one thing that they're doing to deal with this is that in terms of splitting up a quick summary, in October of last year they put the revenue collection in something called the Office of Natural Resources Revenue and it was placed in a different part of interior with a chain of command of reporting that's totally different from the offshore regulations. So that's what they've tried to do. And now what they would in fact, Bomer or Bomer as we say will be actually split again and they're creating two agencies. One's the Bureau of Ocean Energy Management and one's the Bureau of Safety and Environmental Enforcement. And so the theory is that if you split off where you're doing safety and environmental enforcement to where you're actually deciding how to do offshore energy exploration and you have separate chains of commands and so forth that is trying to get at this issue. Again, they're all housed within interior. You know, again, they're doing a lot of things they're hiring a chief environmental officer. They're doing a nationwide recruiting drive but basically you still have an issue particularly when you're talking about everyone's obviously been watching what's happened with the budget and the fights there. One thing again, when we were looking at it MMS inspectors were paid something like literally a third of what you would get for doing the same job for an oil and gas company. And so there's just no way that Congress in this environment is gonna give them the money to even come close to matching what these people could earn if they're working for the companies as opposed to the federal government. So I think as Professor Shapiro mentioned that's a really huge issue that they're grappling with. Well, right now all eyes are on Bomer in the Department of Interior. So for the short time being and maybe for a couple of years we're probably not gonna see much capture at that agency but no one had ever heard of MMS really anyone in this room I bet until the oil spill. And so that's the situation in 10 years hopefully won't have another one of these conferences but it wouldn't surprise me because it'll go back to relative obscurity. I'm not a big fan of splitting the enforcement arm from the regulation writing arm because I think the two inform each other. And one of the ways that the people write the regulations, write good regulations is talk to the people in the field not only industry but their own inspectors. And if that makes that more difficult because they're coordination problems that's probably not a move in the right direction. Thank you both. Steven Dupont. Good morning. My name's Steve Dupont. I'm an attorney with the Coast Guard and I'm gonna focus now on the response to the oil spill. I'm not gonna talk at all about what led to the explosion in the sinking for two reasons. One, several investigations are still ongoing so I really can't comment too much on that. And the second reason is with 15 minutes to speak I really need to focus on one area. And so since the Coast Guard's main role was response to the oil spill that's what I'll be talking about. Just a quick timeline here. You all familiar with the facts and probably the timeline but I just wanna point out between the time the rig sank and oil started flowing into the Gulf and the time that the well was finally secured was 87 days. And so the best estimate is somewhere between 4.4 and 5.4 million barrels. That comes out to about if you look at 5 million barrels is about 210 million gallons. And so just put that in perspective the Exxon Valdez spill of 1989. This is looking like it's about 19 times the size of the Exxon Valdez. So some of the different strategies used to combat the oil dispersants if we just look at dispersants as sort of a detergent that breaks up the oil into smaller droplets. The goal that you try to keep it from reaching the shore as much as possible. In situ burns, this is just what it says, you're burning the oil on scene where it lies. One thing about the burns, a couple of things about the burns was somewhat surprising. They worked particularly well. We found that the burning was particularly effective but somewhat controversial. We actually, Coast Guard got sued during their response by four NGOs concerned about sea turtles. And so we had to work with the NGOs. We already had a process in place where we had best management practices and we were working with Fish and Wildlife to document and observe wildlife while we're conducting the burns. But there was concerns with the NGOs that we were perhaps burning turtles. So they sued us for restraining order. Ultimately, we were able to work with them and get the suit dismissed or get them to drop the suit. And the main issue for the NGOs was, well, you say you're not burning turtles but can you show us? We wanna observe the burns. We couldn't have them observe the burns for several reasons, mainly just logistically. This is 50 miles out and small window to actually conduct burns. So what we ended up agreeing to was, we'd have the NOAA and the Fish and Wildlife Service observers forward their notes to the NGOs within a reasonable amount of time so they could see what the issues were on scene and ultimately they were happy with that. The point being, particularly for the future lawyers in the room, when you're advising an agency, there are gonna be different concerns that are gonna come to bear on the response from different perspectives. And so if we can work with the NGOs to try to avoid issues, maybe we can avoid lawsuits that, although this lawsuit didn't disrupt the spill, it certainly took the attorney's attention away for a little while. The next issue is boom. Boom, if you just look at boom as sort of a barrier that goes on the water to either keep the oil away from an area or if it's soft boom, absorb the oil. Boom was highly controversial during the response because there was really no consensus as to what areas truly needed to be protected and what areas would be protected in an ideal situation. And basically there wasn't enough boom to go everywhere. And I'll talk a little bit more about that, but wasn't enough boom for everywhere that it could have been used and there wasn't a general consensus as to where it was most needed. Skimming, I did wanna talk about skimming a little bit while we're here. Skimming is a mechanical removal of oil in the water. Think of like a big vacuum cleaner apparatus that removes water, excuse me, removes an oily water mixture. The surprising thing about skimming is, at least in this response, is it did not work as well as anticipated. Perhaps because of the open ocean environment, these machines are rated for an expected daily recovery capacity. And while they collected a lot of oil, they didn't collect as much as what was expected. And I think that's important when you look at the planning that the former MMS had in place for a well blowout. They actually planned for a worst case discharge and had contracted out skimmers to be able to respond to recover a worst case discharge. But in reality, what happened was while they had the rated machines to recover a worst case discharge, they just didn't perform up to what was expected in that environment. So I think the big takeaway there is research and development of skimming equipment, especially in an open ocean environment is an area of increased scrutiny and something when you look at it. Just some statistics on the size of the response. More than 47,000 people responding to this event. The point here is, it's truly an unprecedented response, unlike anything we've seen before, and there's a lot of coordination that went into it. So with that said, there's definitely some areas for improvements and lessons learned from this response that we can move forward. And I'll talk a little bit more about that, but getting kind of into the law now. The main removal authority, the main response authority is the Clean Water Act. Section 311 vests removal authority with the president, and it gives the president the authority to take whatever action is necessary to remove oil from the water. And this has been delegated to the EPA for the inland zone and to the Coast Guard for the coastal zone. And so the Coast Guard served as the federal unseen coordinator for the Deepwater Horizon because the spill occurred in the coastal zone. The Oil Pollution Act of 1990, this was in response to Exxon Valdez. So this is significant litigation because it set up a liability regime and an oil spill liability trust fund. The concern at the time being, well, if something like this were to happen again, we need to make sure we have the resources, financial resources available to take care of it. So if you think Exxon Valdez in 1989, open 90, which is a really landmark piece of legislation in 1990, fast forward to the Deepwater Horizon 19 times the size of the Exxon Valdez. So I think it's safe to assume there's some legislation on the way. National Contingency Plan, this is very important. This is, it's codified in regulation, Title 40. And this lays out how the federal, state, and local governments are gonna respond to an oil spill or a release of hazardous material. And what I really wanna focus on is this concept of the Area Contingency Plan. The National Contingency Plan requires that these localized plans be created at the area level. And part of that is federal, state, and local agencies serve on these committees and they identify, among other things, environmentally sensitive areas, economically significant areas, and kind of prioritize how, in the event of a pollution response, how this is gonna unfold. What we found in an area of improvement, perhaps a lesson learned is the federal government and state governments were well represented at the area contingency committees. Not so much so at the local level. Counties and parish presidents and their agencies and county and parish agencies were not necessarily represented at all of the area contingency meetings. And when we went back and we looked at the conflict that was taking place during the response as to where the boom should go, what's truly an environmentally sensitive area and what's not. A lot of the conflict revolved with local officials and disagreements. And when we went back and we looked at meeting minutes going back to 10 years prior to Deepwater Horizon, we saw that federal government agencies were represented, state agencies were very well represented, but it didn't filter down to the counties and parishes. And so I think an area moving forward would be further coordination and integration with the county and parishes as to amending and revising area contingency plans. And I think that'll do away with a lot of the boom, boom wars, I guess, as you can call them. But it's an important issue. The point is the time to kind of come to an agreement as to what really needs to be protected ideally is not during the response, it's during the contingency planning. And if all the players aren't at the table, then there's gonna be conflict. And so that's an area of improvement for sure. HSPD-5, that basically, it designates the Secretary of Homeland Security as the principal federal official for significant incident response, in this case, oil pollution incident. So how does this all fit together? Well, the Federal Unseen Coordinator in the Coastal Zone is pre-designated. It's a Coast Guard captain in the port that's pre-designated. Since 1990, there have been over 11,000 pollution responses where a Federal Unseen Coordinator took charge of the response and actually had to open the federal fund to respond to it. Most of these pollution responses are relatively small. When I served down in Miami as a pollution responder, I responded to over a dozen of these myself, and they're usually small. What does that mean? Battery or load? I'll just keep talking. So they're usually fairly small. Never before had we had a spill of this size that had to be responded to for sure. So let's see if the click still works. So from a Federal Unseen Coordinator. No, is this counting as my time? Okay, and see what happens, it might let you out. Perfect, okay. So the Federal Unseen Coordinator serves in what's called a Unified Area Command, and the Unified Area Command is where all the federal, state, and local agency representatives come together. The concept here is truly a unified effort. And then for Deepwater Horizon, there were four kind of mini-unified area commands with what's called incident command posts. And they were set up geographically along the Gulf at different locations. The blocks in red, this is all part of the National Continuity Plan where you have regional response teams and other agencies that support the Federal Unseen Coordinator and the Unified Area Command. And there's also a national response team. There's 16 federal agencies that are represented on this national response team, and they bring particular expertise and resources in support of a Federal Unseen Coordinator. And this is where the principal federal official fits in, obviously everything's flowing from the president. What was unique about this response is it's the first time we designated a spill of national significance. This had never been done before. This was a relatively new concept that was added to the National Continuity Plan, again in 40 CFR if you wanna look at it, part 300. It was added to the National Continuity Plan in the late 1990s, and the concept of a spill of national significance is if it was a spill that's so large or so complex that it's going to span every area of the Federal Government or many areas of the Federal Government, then you would create a, or you would designate it a spill of national significance and you'd have a national incident commander. And so for Deepwater Horizon, it was Admiral Fad Allen. And the reason I put his picture up there is we've all probably seen him during the response and maybe I weren't quite aware of where he fit into the structure. So he was the national incident commander. All right, this slide, I'm gonna spend a little bit of time talking on this slide because I think this is another area of perhaps some conflict during the response and it has to do with the difference between responding to an oil spill and the difference between responding to a hurricane or a national disaster. And this is important. Under the National Continuity Plan, what we just saw, you have a Fertilon scene coordinator as part of a unified area command for Deepwater Horizon, there were incident command posts that was set up. But really what's going on here is the Federal Government, it has command and control over the response and states and locals are supporting the Federal effort. This is in sharp contrast, so it's actually the reverse or inverse of a natural disaster where the right house would declare a state of emergency or a national disaster declaration and then funds become available for a state governor. And at that point, the state is in charge and the Federal Government is in a support role. So states are used to responding to incidents under the Stafford Act because they've had a lot of experience with it with hurricanes and other natural disasters and not so much so under the National Continuity Plan where they're not, they don't have command and control, but they're actually in a supporting role. And so that kind of leads to the question, well, why do we have these two separate processes? Why don't we have one or the other and what makes an oil spill different? And what makes an oil spill different is the concept of a responsible party. And the law requires that when oil gets in the water, someone's responsible for that. It's not like a hurricane where it's an act of God or natural disaster. Someone's responsible for oil being in the water. And so the Federal Unseen Coordinator's job is to respond to that spill, but the responsible party is actually responsible to clean it up. So the Federal Government is going to direct the efforts of the responsible party and they're on the hook to clean it up and to pay for it. The Federal Unseen Coordinator will federalize the spill if the responsible party is unable or unwilling to do what's needed to clean it up. So we saw a lot of this more so early on in the response in the media with, well, why doesn't the government just federalize the spill and take charge? I think it was a little misunderstanding. The government was always in charge. It's just by law the responsible party is on the hook and they have to do what they're told to do to clean it up. And only if they're not doing that does the Federal Government step in, take charge of the response, open all the spill liability trust fund. And so the fund is also available to compensate for individuals for oil removal costs and damages. But the main concept here is that the polluter pays and only if they're unable or unwilling will the spill be federalized. And so that's all I have on that. Now, moving forward, some other lessons learned or some things that, some concepts, some ideas moving forward are three things, three big takeaways I think were area contingency plans as I mentioned, need to coordinate more with the locals, incorporating some more exercises to where we can come to more of an agreement as to what the environmentally sensitive areas are. Environmental sensitive areas don't only need to be identified but prioritized, that's another big issue. Some of the plans identified ESAs but they didn't necessarily prioritize them and so that led to more areas for discussion and conflict. And finally, and this is perhaps really important, area contingency plans plan for worst case discharges from facilities, shore site facilities and vessels but not necessarily for an offshore facility. Now, with that said, the MMS plans, the Bohemar plans did plan for worst case discharges from offshore facilities but as I said earlier, those plans relied heavily on mechanical removal and as we saw during the response, the mechanical removal didn't necessarily work in that environment as expected. Some legislative issues moving forward, I'm not lobbying for legislation, I'm just commenting on some things that perhaps are worthy of further consideration, that's all I'm doing here. Research and development, this is fairly controversial, the concept of open water testing, the idea that you need to put oil in the water to conduct R&D, very controversial and obviously for obvious reasons. The time to find out that oil skimmers are not collecting as advertised in an open ocean environment is probably not during a response and so that maybe some discussion on whether the pros and cons and benefits of putting oil in the water to actually test how these machines and these devices work. I'm not a scientist but I have spoken to someone they tell me that it's a lot different in a controlled environment than in an uncontrolled environment. Another area of perhaps further discussion is the concept of these oil spill removal organizations that are contracted to provide these services, certifying these organizations. And in order to do that, that would require some legislation, there was gonna be some legislative authority necessary to certify Osrose. And finally, although it wasn't an issue during this response, it definitely pointed out some areas of potential concern is how we use this oil spill liability trust fund. There are certain caps on the fund. There's an emergency fund for $50 million and then Congress can approve additional appropriations up to $100 million at a time, not to exceed $1 billion per year. Put that in perspective, the federal government, last time I checked and this has already probably gone up, the federal government had already spent from the fund $800 and some odd million dollars of which BP is being billed for all of that. But the point is during this response, we had a responsible party that had resources available. But if this had been a less resource accessible company, perhaps an upstart or something like that, that would have put additional strains on the trust fund that it may not have been able or it would not have been able to handle. So that's just something to consider as well. That's all I have. While we're getting Dave set up, quick question, which is on pronunciation. We have Boemer, we have Bomeray, and we have Boemer. What is it? I say Boemer, but I have nothing to point through to say that that's correct. Yeah, I don't. I say, I mean, the R comes before the E. So it doesn't, in my opinion, it doesn't make sense to say Boemer. Although I think people say that because it's easy. So we say Boemer, but, you know, again. I say tomato. Exactly. And it's all gonna change. I mean, the whole point is here we're trying to pronounce this acronym and it's gonna change into three other acronyms. So it doesn't even matter. It's gonna cease to exist. I think that's the best case. The employer themselves could call themselves Boemer, but they don't like it. And they just couldn't see themselves call themselves Boemer. It doesn't lend itself very easily. And originally it was gonna be something like, when the initial acronym was being considered was something like Boo. And then they, for obvious reasons, decided Boo was not an acronym for overseeing safety in the... Okay. Good morning. And again, I'm Dave Westner-Hulman. And I'm probably gonna take a little bit different tack. I don't think you'll hear anything different in my presentation than my colleagues that preceded me. I think I might twist it in a little bit different way because my particular office is full of scientists as opposed to lawyers. Although we've worked very closely with them on the natural resource damage assessment. And I was asked before I came to this conference if I really wanted to bring science and facts to a room full of lawyers, but despite that, I said absolutely. So we were asked the question, what's the single most important factor that contributed to the magnitude of the event? And like Steve, there's some things that probably I would speak to on failure regulation and other things, but with the ongoing investigation, both with the cause of the accident, the Department of Justice potential criminal investigation and the natural resource damage assessment which falls under my office, which is still ongoing. That part of it and the cause and ultimately what will be determined either through some sort of consensus or in a court of law will really come out. But there have been a lot of interesting discussions preceding that. But like Steve, I'll talk a little bit more about the response side. And I think that the largest factor in that that really falls into two categories. One being the technical piece, the technical challenges. I won't delve into that too much, but someone explained to me and I haven't done the calculation yet, but working down a mile deep in that drilling environment with a four story tall blowout preventer, it would be like one of us with the pressures down there with one of us standing and having the Washington monument put on our chest. So you can see the technical challenges are not unlike sending a man to a moon or something else. And over the years, the oil industry and the regulatory industry has looked at that and developed ways to extract those resources in balancing what we'll talk a little bit about is the environmental risk versus the need for oil, energy independence and our nation's not unfettered need, but continuing demand for patrolling products. You know, on the other side though, I think I would like to, as we go through the presentation, really say that the magnitude of that also boiled down to a matter of trust and communication. And what we'll see as I present this, and many of you will think back to as we experienced it, some of the information that was coming out, both from the responsible party, you know, from the government, from the states, NGOs, everyone, not all of it was perceived the same way by the general public or the media and the ability to communicate and discuss that really became a huge issue during this spill. So with that, I think, do I click or hit the? Hey. I got, okay, so what I'm gonna do, there we go. What I'm gonna do is just break it down real quickly so we'll have time for questions into, you know, what was our role in NOAA, the mandates and key areas of support? What were some of the challenges, public concerns and what do we think of as we look past that horizon? So there's the event again. Okay, so I'm, it's kind of stuff, all right, there we go. So there are five areas that we've focused on and I'll go through these a little more detail, but we provide a scientific support to the federal unseeing coordinator through my office with that and that is more than just the science of oil spills, you'll see how to keep seafood safe, protecting the wildlife and the habitats, ultimately assessing the damage that occurred that is ongoing and will continue to be ongoing and ultimately any money collected from that damage assessment to be put back into restoring the environment all under the Oil Pollution Act, which was explained earlier. So for scientific support, there's a number of areas I'll briefly go through them. We did twice, we started daily and then twice daily trajectory forecast. Where's the oil going? What to anticipate so that they could make key response decisions as to where to deploy equipment? Weather forecasting. We did more spot weather forecast for this event than we've ever done in the history of NOAA. There were like 400 spot weather forecast and in fact the Gulf of Mexico is so large that we were doing weather forecasts for different locations so that again we could make the right decisions on the type of equipment, where to put it, approaching storms, there were a few lightning strikes that happened and an injury associated with one. So this was a real big factor in the response. We have a wealth of information on both atmospheric and oceanographic but it's really critical. There's a number of mechanisms that were used in this bill all the way from satellites to ships to unmanned aircraft to underwater unmanned aircraft, gliders and Navy UAVs. And we provided, we talked about earlier the different types of response mechanisms in situ burning. You saw that there were 400 in situ burns. Prior to this event, you probably could count on one hand, I'm sure there were less than 10 worldwide of where this had been done successful. For this event, there were 400. Aerial dispersants is the plane, the second one and then the mechanical cleanup with the skimmers. There were obviously many different types of skimmers employed in this event. See food safety. To our, to my knowledge, and no one has found an example of this. This was the very first time that a federal fishery was closed for an oil spill. State fisheries have been closed before for oil spills. Federal fisheries have been closed to manage the fishery in the past but never because of an oil spill. But because of the type of spill this was, was an ongoing event, couldn't stop the leak. That whole area, large area, the Gulf of Mexico, 30 some percent of the federal, 33 percent of the federal fisheries area was closed to fishing. And it was, it's from an administrative and a legal point of view, it is not easy but a lot easier to close one than to reopen one with all the samples, everything that had to be taken. But it was incredibly important. One of the issues, and we'll talk about that a little bit was the perception that people had about seafood. And yet, what I'll come back to the conclusion is nowhere in this event did any tainted seafood ever reach the marketplace. And part of it was the restrictions that had been put in place. Protecting wildlife and habitats. The map down below is very difficult to see. You'll get a copy of it, may help a little bit. You can also go online and look at it. But it just showed all the dolphin and sea turtle strandings and collection points. But obviously the dots are bigger than reality. But it was throughout the whole area of the spill which included hundreds of sea turtles and hundreds of marine mammals. So now we had to assess the damage. And I use this picture because it kind of shows different ways. There's some marsh land that's oiled. What's the best technique for responding to that? Do you leave it alone? Do you cut it out? Do you try to wash it off? How do you get it in there? You're gonna have re-oiling. You have the shoreline on the right side. And although this isn't a great picture, much of the beaches in that whole area are also tourist areas. And a tremendous impact to the tourist industry and they don't want any oil on their beaches. And I show the underwater leak because there is damage that occurred as the plume went up through the water column. How to assess that? How do you determine what impact that had to the ecosystem down there, both to the benthic community and the deep sea, whether it would be deep sea corals or others, or migratory fish through that area, yellowfin, bluefin, tuna, things like that. And then ultimately we're going to restore, but you see a number of different ecosystems throughout the Gulf of Mexico region. And much like we do in other parts of the United States, but this part of the country is also very fragile in some cases because of the storm impact and other that we're already getting some erosion. And it's critical that we keep some vegetation to help protect the inland areas. All right, so what were some of the challenges in public concern? Things that were either miscommunicated or talked about, the flow rate. How that flow rate changed from a small number to a large number, what was right, what was wrong, who did what? I'll be happy to address questions later on it, but it was really a confusing fact. How about using subsea dispersants? Up until this time there had been one other example and then mostly just papers written on it for theory, but never practice. And in this case, they put an injection wand a mile deep, put it into the escaping oil plume and disperse the oil before it ever came to the service. Effective, but what were the environmental problems and risk, and I'll tell you, in many blogs and other areas, it was a, you saw a perception that this, by adding that dispersant it was going to be very scary and we were going to be creating a health risk to the entire population. What was the effect of the oil rising up from the bottom? Again, a mile rise, you know, you have a leak from a vessel or a shallow well, your pool of oil is spread over a number of yards, maybe the size of football field, maybe even a little bit bigger. Here we were talking miles as the oil came up when it eventually surfaced. And studies on what were the potential biological impacts down below. Some of the surface issues were what happened to the oil on the surface, how was it going to move by wind and current and you might have heard about the loop current. The loop current, I don't have a pointer, but I'll kind of walk over. If you see the bottom red line coming up from Cuba and South America, typically that goes all the way up until the spill site then moves around and goes down through the straights of the floor. Have we have a pointer here? Oh, that'd be great. Try that red one. There we go. So the normally would come all the way up here. But we were fortunate in that an eddy broke out, broke up and did a circulating pattern here and a counter-circulating pattern there so that the oil that was entrained, at least from some satellite energy and detected, maybe a small amount actually got into this and rotate around. Most of it was in that counter-current. Previous years that loop current has come up as far as where the wellhead site was. And you can imagine with that current being under water, pulling all that oil out and moving it this way, the threat then increased to the state of Florida, the straights, tar balls on the east coast and much of the east coast. And there was, again, speculation in the papers that that may go as far away as Europe or up into the New England states. We had to address a lot of those questions. Ultimately, again, there was controversy and confusion. Two other areas or challenges were the approach of a storm. This area had not, but a few years before, suffered many storms in a year before that, Hurricane Katrina. A real big issue. We had to pull resources off the water with the threat of a hurricane that came that summer. And then also, what was the, all the different methods were used, but what were the environmental impacts and what were the best in concerns with the choices made for surface removal of oil? And then I mentioned a little bit about shoreline and some of the protection strategies, shoreline cleanup assessment technique that is used for the SCAT teams to determine where to go and the different types of shoreline cleanup. Now, what are some of the issues looking forward? You've heard of some of these already. Some were being talked about. How do we get better planned and prepared for offshore exploration and production? It's certainly not gonna be just the reorganization of MMS into a boomer and a regulatory arm. There's gonna have to be some further discussion of how to not only regulate and develop that area, but what did we learn from sort of this worst case scenario? Containment and underwater countermeasures. Eventually they built the containment dome that went over the well head and captured the majority of the oil till they could drill a intercept well and actually kill the well itself. That technology really was developed on the fly. Amazing that they could get it done. What probably would normally have taken years and in days and months. But as you might recall, the first attempts at some of that failed. There, you know, the containment of methane hydrates and others in the first containment system. Ultimately, the oil companies have come together and said that they're going to have a company that is gonna be able to do this. I will also tell you that not a lot of, I won't say a lot of thought, but not a lot of people felt that this was necessary. I've had, you know, a fair amount of experience and when I was in the Coast Guard Station down in the Gulf and had dealt with some well blasts here. I probably would have been one of those who would have said that the blowout preventer would work. They usually do, it's worked in the past. This is not something that they wouldn't have expected. And even when the beginning, when it happened, the shear rams that apparently had triggered but didn't do what they were supposed to do because of a piping, normally they thought that if they get down there with a remotely operated vehicle, they could close off the shear rams and that would be the end of the story. It wasn't that. So I think the whole idea of how they're going to do this underwater containment, especially in deep wells, especially in other areas, you know, one of the other productive fields that the United States has access to is off the Arctic. It presents its own unique challenges, but certainly something that has to be considered here. And then how do we do better modeling? One of the things that my office does really well is surface modeling where the oil goes. Not so much three dimensional. So we're going to be working on that. And then seafood safety. I said I'd come back to this, but there was a tremendous impact in seafood safety in the markets of here in New England and Virginia, people not buying seafood. In some cases they weren't, they were not buying halibut because of the potential for oil taining. And you know, halibut's coming in from Alaska, not the Gulf of Mexico. But rationality didn't play out here. It was a fear. And you know, I've used this example before too, but if you saw some of the advertisement coming out that time like, I think it was Long John Silver's and a couple other companies, said Pacific Shrimp. You know, now actually some of their shrimp probably comes from Indonesia, which is still over in the Pacific, but the whole concept is that there's still something wrong with the seafood in the Gulf of Mexico. And there never was though. The shrimp industry, the oysters, the areas that were closed weren't used, the areas that were open, none of that seafood that went to market was tainted, but that didn't stop people from making conscious decisions the other way. The fisheries and wildlife closures, I think I talked about that. Research and development was covered earlier. I think it's a key point of we need to make an investment. There was a lot of investment after Exxon Valdez. Not so much in the intervening years. It's one of those areas that is within the federal budget when things are tight, take some cuts. And so not having a lot of money porting from either side, even industry had cut back the amount of their research and development. So we were using some of the same or much of the same technology that had been available for 20 years. And then my last point here is social media. And this one really bears a lot more discussion, more time than we have today. But we were faced with a different event. From 30 years of cleanup oil spills, I had seen it from written reports that went out to the nightly news to maybe about 10 years ago, it was the CNN world. People would show up and they'd want real time pictures and information. But we're in a new world now. This is everybody wants that same information instantly on their iPhone or iPad or in a Twitter or Flickr account. And I don't think we were aware but not prepared. And I think it really is something we have to think forward. How much responsibility does industry and or the government have for providing that instant information to the American public on an event such as this? We could debate that. The desire is still gonna be there. The picture I have down the right-hand corner is the geo platform. We had a common operating picture system that we had developed that was used for response to make decisions called ERMA. It worked well. Admiral Allen picked it to be the sort of common operating picture for this event. Was easily briefed. Did it for a White House, CNN, took some expert excerpts on it. But there was a desire to be able to put this in the hands of the public and so on the fly we converted what the majority of that information into geo platform and added, for ERMA we had added 5,000 data layers just that which means different sources of information coming into this and you could click and describe what picture. So if you wanted real time where the ships were going or where the dispersants were or aerial patterns where the wildlife was captured you could go on here and pick and choose what you wanted to see and you could do it in much like a Google Earth format. When it came online that afternoon within a matter of hours we had three million hits. But again I would argue is is that the role of the government in this role in this case to provide that information or is it the role of industry? No and I don't know that we can escape it because if you don't do that that void will be filled some other way and it really if there was a turning tide and everything I had said earlier about some of this information when this came out and people were able to see it and visualize it it did diminish the amount of questions and concerns that previous to this had been really on the rise. And with that I'm done so we can wait for questions until after all the presentations. Thank you. Next we're going to finally we're going to hear from Garrett Graves who again is the director of the Coastal Protection and Restoration Authority in Louisiana and I believe is going to talk to us about some of the local impacts and drilling in the Gulf moving forward. Pointers this way. Thank you. Thank you very much for the opportunity to be here. I was reminded on the importance of preparation as I parked in a parking spot probably about as far away from this building as I possibly could have and didn't have an umbrella. And so interesting that we're talking about that today. So I'm going to go over three things here. I'm going to go over kind of a crash course on Coastal Louisiana. I'm going to go over the effects of the oil spill and then I'm going to talk a little bit about why I was actually asked to be here which is talking about lessons learned a bit. So here's a satellite depiction of North America and Dave actually stole this from you guys. This is a NOAA depiction here and this is what it looked like 60 million years ago. And what I want to commend your attention to is right about there which is the perhaps present day Missouri. That's the base of the Mississippi River 60 million years ago. And watch what happens over about a five million year increments here. You can see all the Mississippi River actually built much of that area much of the states coming down from Missouri South and literally built the entire state of Louisiana. So this is a we live on the Delta Plain in South Louisiana. Our state was literally a product of the river. Zooming in on Louisiana you can see New Orleans there. These are the various tracks that the river took over about a 5000 year period. These different lobes of land that built Delta's they were again Delta Plains and the river would change course about every 12 to 1500 years. Zooming in on the New Orleans area the little dot there you can see is New Orleans 4,300 years ago was actually underwater. And you can see over a 1300 year period how this Delta came out here. You can see how the Delta further west came out about a 1000 years later. You can see changes over on the eastern side and then how this Mississippi River Delta the Plackmann's Delta came out 1000 years after that. So our state was actually growing almost one square mile per year as a result of the river. We were actually creating land. Then in 1927 we had this huge flood of the Mississippi River. Pretty extraordinary event largest river in Florida nation's history. Congress came in and said you know what we're gonna we're gonna build levies on the river. We're gonna stop that from ever happening again. One of the most successful public works projects in our nation's history from two perspectives. Number one is we have not had another riverine flood on the Mississippi River in this area. Very, very successful. Number two, I showed that slide a minute ago showing how the river changed course and being a maritime state it makes it very difficult if the river's not where your chart show it's gonna be. So if the river's changing course and you're trying to navigate up this river and it's not there then that's a problem. So these levies keep the river right there between the banks. You no longer have this delta switching or the river actually changing course. So again, very successful. Navigation perspective. We now have the top navigation industry in the country five of the top 15 ports in the nation 19% of waterborne commerce all come from our state. 31 states in the United States depend upon our river system for maritime commerce. Very successful. On the flip side, looking at the environmental impacts when you sever that relationship between the Mississippi River and the adjacent wetlands you severed that sustainable ecosystem. We have lost 2,300 square miles of coastal wetlands in coastal Louisiana since the 1930s since these levies were installed. You wanna talk about regulatory capture. Let's talk about regulatory capture for a minute. This was carried out by the US Army Corps of Engineers. These levies that were built on our Chaffelai River on the Mississippi River. The US Army Corps of Engineers has delegated authority under the Clean Water Act to regulate wetlands. They have destroyed 2,300 square miles of wetlands. You or I, if we impact a 10th of an acre we have to file for a permit and we have to carry out mitigated actions. They have done absolutely nothing. 2,300 square miles. The largest destruction of wetlands in our nation's history by far and we supposedly have a no net loss of wetlands policy and this is done by the agency that regulates wetlands. You wanna talk about regulatory capture. Let's zoom in and see what that looks like. This is an area southwest of New Orleans. This is an area called Terrible Empowerage. And this looks like perhaps fish habitat or wetlands or where people don't live and these are actually communities. Cocodry, Dulac, Chauvin, Montague, thousands of people live here, believe it or not. And I want you to focus on the fact that this is a 17 year period. I'm gonna show the impacts. Over 17 years, that's what happens in terms of the loss of wetlands. We've lost since the 1930s an average of about 28 square miles per year. Over the last five to six years, we've lost in the range of 70 to 80 square miles of land per year. All jurisdictional wetlands. Government Accountability Office indicated that up to 90% of the coastal wetlands lost in the nation is attributable, excuse me, in the continental United States is attributable losses in coastal Louisiana. The Facts of Hurricanes Katrina and Reed in 2005. Just taking a look on here, I know that a little bit difficult to see perhaps from where some of you guys are sitting. But if you wanna look at the third one from the bottom, the Breton Sound, these are the different basins. And what this shows is the yellow or white line there shows that we lost and I'm gonna take a wag and say 80 square miles between 1956 and 2004 in that basin. And then just from Hurricanes Katrina and Reed, we lost, I don't know, maybe 45 square miles. So in effect over two days, we lost the same, or excuse me, half the land that was lost over a 50 year period in two days. Just giving you an idea of the fragility of this area. So then let's add some oil to that. So these are what the wetlands look like. These were pictures that we took after going out on the coast for about a hundred days during the height of this thing. This oil was incredible. It was, this was actually standing up about an inch and a half off the beach there. That was a seagull that I walked past about 20 times before I realized it was actually something. You could see the submerged oil. And a lot of folks allege that the dispersants changed the characteristics of the oil and caused this submerging or I guess adjusted the characteristics to where it wasn't quite as buoyant or stay on top of the water as we normally would expect. And so adding to the challenge in Louisiana, why did I talk about the coast and the degradation at the beginning? Here's why. Looking at coastal Mississippi, you have a relatively straight uniform line there. You have the Bay St. Louis where you have the opening, but this is what coastal Louisiana looks like. Okay. And I'll talk about what this is important in a minute. But look at all these fragmented jagged edges. Look at all these nooks and crannies, all these pockets. This is what coastal Alabama looks like. Once again, barrier islands rather straight across, pretty united beach area that runs parallel to the Gulf. This is coastal Louisiana, a bit further over to the west in Barataria Bay. Here's coastal Florida. And this is the Panhandleria, Pensacola, Navarra beach areas. But again, they have a straight barrier island beach there. And here's coastal Louisiana and Timberley or Terrebonne Bay area further west than the previous two pictures. And so if you're trying to stop oil there or here, fundamentally different situation. And this, again, I'm not sure if you guys can see this or not, but this shows if you measure the coastline of Louisiana smoothly from Texas to Mississippi, you get about 400 miles. If you actually go back and you follow the tidal shoreline of our state, it's almost 7,800 miles, 7,800 miles. And you can see that the ratio of coastline versus shoreline blows away any other state. The total shoreline miles blows away any other state. And even Florida, because Florida obviously includes the lower portion of the state in the eastern coast, which was not affected or threatened by the oil spill. So this is what, again, what we were faced with. Dolphins swimming through slicks, oyster reese oiled, sea turtles oiled. Just complete coverage of oil for miles. It was really just incredible. Oops, sorry, I didn't realize I had those in. This area here, just saw this over and over again. This heavy black oil. I mean, just completely void of life, whether it was a microorganism, a plant, some kind of marine wildlife, done. And the place was just covered in oil. And this shows the Mississippi River coming down. This shows where the oil was coming in. This satellite depiction from NASA showing just the complete coverage of the Gulf and the high concentrations of heavy and moderately oiled concentrations off Louisiana's coast there. So what was at risk? What does this mean? You have oil there, you have a degrading coast in terms of coastal erosion. What does it mean? Well, what it means is you have hundreds of thousands of Louisianaans that's lives and livelihoods are at risk. You have a very unique culture. The Cajun culture was actually chased out of Nova Scotia. Some landed up above us in Maine and the rest came down to Louisiana. And that's threatened because of the disbursement that's caused by the loss of livelihoods. We have the best food in restaurants in the nation that's based upon our seafood in South Louisiana. The crabs, the redfish, the speckled trout, the snapper, all that is threatened. US Fish calls South Louisiana the most productive ecosystem in North America. We bring in more oyster shrimp, finfish, crabs and other species than anywhere else in the nation. So what's at risk? All these things are at risk. On the recreational side, we're the fourth top recreational fishing destination in the nation. It's easy there. People think they're good fishermen, it's just easy. It's a productive ecosystem. But keep in mind, it's not just about, I didn't get to go fishing, which was frustrating. It's also the repercussions. You have communities that were set up to support that industry. The bait shops, the hotels, the restaurants, they're done. We were working to try to reverse the ecosystem destruction caused by Hurricane Katrina and Rita in 2005, caused by Hurricane Gustav and Ike in 2008. We lost 217 square miles of land in 2005 just from those hurricanes. 2008 we had, again, exacerbated loss. And we were making progress. Believe it or not, in 2010, we were on track to have the lowest rate of land loss since the 1930s. And this oil spill destroyed it. Contaminated sediments, contaminated project areas, pulling project managers off of restoration projects and putting them on oil spill. Freezing funds, redirecting funds to other types of response efforts. So again, the risk, the impact's extraordinary. You guys kind of went over this. I'm gonna point out the bottom one here for just a minute. 90% of the species in the entire Gulf of Mexico are dependent upon the unique coastal estuary that's supported by the confluence of the Mississippi River and the Gulf of Mexico. 98% of commercially harvested fish and shellfish in the Gulf of Mexico are dependent upon the unique coastal estuary that Louisiana's wetlands provide. And so what's at risk? You have all this oil in this area and it's the most productive area. Looking at the birds here. I mean, just extraordinary statistics. Extraordinary. So here's what happens and I heard that, I believe Dave went over this a little bit, but here's some of the options when you have oil in your wetlands like in this photo. You burn the wetlands, you leave the oil in place and let the natural bioremediation process take place for years in a situation like this. The National Institute Commander Admiral Allen recognized that if you had a choice between oiling a beach and oiling a wetlands, you would always choose a beach. You scrape the sand, you throw it out and you can bring your sand in if you need. So here's what we're dealing with and I'm gonna say it for the 12th time. The most productive ecosystem in North America is hit with 92% of the heavily and moderately old shorelines. The most productive ecosystem in North America had 80% of the heavily moderately old shorelines at any given time during the spill. Over half of all the shorelines that were oiled in the Gulf were there. About 60% of all mammals and birds that were collected during the spill were collected in our offshore waters. So here's what I was actually asked to address. So I kind of went through all the things that I wanted to talk about and then you guys get two slides. Or maybe three, I don't remember. But, and there's a bunch of words so I'm gonna try and explain it. So we're visiting OPA. What are some of the things here? And I know that Coast Guard didn't lobby and just shared, I don't know, perspective on some of his thoughts on here. And there are a few things. The first thing is, is that you really need to fundamentally revisit the issue of the, and I'm sorry for all the acronyms, I was trying to keep them on one line and so I'll go through those. RP's Responsible Parties. You've really gotta reevaluate the role of the responsible parties in these oil spill responses. These guys, I heard the Coast Guard say it over and over and over again. That the Coast Guard has 51% control. The Coast Guard did an absolutely phenomenal job and saved thousands of lives and helped our state recover much faster than they ever would have during Hurricane Katrina. Just absolutely heroes. Admiral Allen was a hero in Hurricane Katrina. I saw him much more constrained in this disaster and I don't wanna speculate as to what was going on but I saw him much more constrained. You can, and I have this on another slide but I really wanna highlight this. You can't overstate the conflict of interest that occurs when the responsible party is cutting the checks. Okay, so I believe the Coast Guard went over this a little while ago but there is a billion dollar cap per incident. So far the spill has almost exceeded $15 billion. So what would have happened if we peed instead at the table? The old spill liability trust funds balance is one or one point something billion I believe right now. What would have happened? Where do you, how do you fund these other response operations? 15 billion, 15 times the cap. So far we're not anywhere close to being done. And not just that. So I'm very frustrated with BP but I'm also gonna say that I commend them for staying at the table. And Arco, Moax and TransOcean, the other named responsible party so far never came to the table. Haven't cut a single check. BP did and I respect them for that, for staying at the table. But the entire time throughout this spill the federal government was doing this, there is doing this balancing act. If BP walks, we're gonna have a disaster or a greater disaster, a greater catastrophe. And so they've had to play this game with BP and the authority that BP has been able to exercise as a result of being able to control the checkbook is ridiculous. It's absolutely ridiculous. And just to give you a quick example, a few weeks ago we got a data management plan proposal from the federal orange team coordinator and asking us to sign it. Start going through it and just see some extraordinary provisions. Things like BP is the only entity that receives the raw data from the spill. The only entity, they do the quality assurance quality control and then make it available to us. It was absurd. I do not think this is gonna go into billions of dollars in litigation. Of course, they wrote the plan and over and over again I was talking to a federal orange team coordinator one a few months back and he had issued some order in response and they ordered just, they ordered blindsided us. They said, could you please explain this? You know, why did it blind, why did you guys blindsided us with this? Why are you fundamentally changing response status right now whenever we still have oil all over our coast? You know, could you please explain to me the basis of this and how you expect us to move forward and get all these things re-approved. He turns to the Coast Guard and says, actually, I don't know. They wrote it, let me ask them. He signed it. I mean, that kind of control in a disaster like this is absolutely unacceptable and that needs to be revisited. So the per cap incident I talked about, improving the role of state and locals and the commander did address that as well in the incident command structure. You know, and he talked about Stafford Act and hurricanes and you know, the bottom line is that this all goes back to the top issue. With the control that BP was able to exercise throughout and continues to exercise in this disaster. You've got to have more involvement. There's been a lot of frustration at the state and local level with BP and until you change that command control structure and allow for more input from the locals that know these coastal areas so well and the state, it's going to continue to be a very frustrating experience in future spills. I'm requiring a down payment on natural resource injuries and the Clean Water Act finds. BP is potentially liable for $40 billion. It is some of the estimates with the natural resource damages with the oil discharge and the Clean Water Act. 40 billion. There's nothing that compels them to pay that until there's scenarios this could go on for 20 years. We can sit there with the degraded ecosystem, degraded natural resources for 20 years while those fishermen and all those people that depend upon the coast for subsistence, depend upon the resources for their economic interest and for their livelihoods remain just stagnant. For 20 years, litigation, the nerda process, to measure these injuries normally takes seven to 10 years on a normal spill if there's such a thing. This one's certainly extraordinary. They need to have a down payment. We shouldn't be penalized by this process and by the irresponsibility that resulted, excuse me, that yielded this spill. Pre-positioning response resources, things like boom, skimmers, other things, having those in the Gulf to where we're not ordering them from Europe and waiting for them to come. The boom was a major challenge and the Coast Guard refers to it as boom wars and they're right. Boom was a critical resource. The dedication of research and development funding and the Coast Guard does have from the Olsville Liability Trust when they're supposed to have a dedicated fund for research and development and that funding has not been consistent or at the levels that I think Congress intended back in open 90. From streamlining technology, dispersant remediation approvals, I'll bet that I received, I don't know, I'll just take a guess and say 10,000 ideas on how we could stop the spill, how we could capture the oil and many other things from praying to people scuba diving down to the well, a mildee, apparently that works. And you've got to have a process whereby you can actually funnel and evaluate these things and prioritize them. You know, some of those innovative things, the folks drove porta potty vacuum trucks on barges and went and sucked up oil. It worked, it was great. We had a void there and it worked. The skimmers didn't perform in some cases as anticipated and so it worked. And then the last thing I have on there is catastrophic disaster. You know, perhaps you need to look at a situation like this and in the nuclear industry, the federal government has something established called Price Anderson. It's a catastrophic sort of insurance fund that is, again, a partnership between government and agencies and I think in a situation like this with the risk that are associated with deep water production and something that should be considered. Future of offshore energy, which is one of the other things I was asked to do and I know I'm over time. I'm gonna try and go very quick. So, fundamental difference. You guys live up in the Northeast and you don't produce energy here and I get that. And you don't like the way oil smells or tastes and don't like the way it looks and I get that too. But the reality is that all of you guys drove here. I flew here yesterday. And the reality is that it's an important part of our economy. And I would love nothing more for us to be able to harness the energy of the sun and to be able to power everything that we do. But the reality is is that fossil fuels are gonna continue to play a role in our economy for decades. And we need to continue to invest money in alternatives to try to improve their affordability and incorporation into our economy. But we've produced hundreds of billions of barrels of oil in the Gulf of Mexico and trillions of cubic feet of natural gas. And we've produced them safely. And so what's happened right, and let me, the third bullet there. If we're not producing in the Gulf of Mexico or not producing domestically, where's it coming from? The demand doesn't decrease. We bring it in from other places. The United States believe it or not has some of the most stringent. And I can say the most. Some of the most stringent environmental restrictions and regulations on the environment and on energy production in the world. But what happens when we're not producing it here? We're importing it from phenomenal areas like Nigeria and Venezuela. Anybody check on Nigeria's regulatory status related to the environment and energy production? Just Google it and you'll be fascinated. It looks like the BP oil spill on a daily basis. Venezuela, yes, let's definitely pump hundreds of billions of dollars into the economy of Hugo Chavez so he can share American values around the world. It doesn't make sense. Those are two of the top nations that we import oil from. So we need to continue to invest and focus on alternative energy streams, but we need to be realistic that fossil fuels are gonna continue to play a role in our economy. And we've got to find ways to do it safely here in the United States where it can help our economy and we're not exporting hundreds of billions of dollars to these other places. The Deepwater Horizon incident was an anomaly. You look at the reports, you look at what happened. It's referring to the top two bullets and then look at what happened here. It was an anomaly and I believe gross negligence and it was there. So I think this is my last slide. I'm just gonna, examples of lessons learned. The first three bullets are all pretty much quotes from BP's response plan for this well. They indicated that they didn't expect an impact on walruses or seals. Well, that's a good reason, because those aren't in the Gulf. We looked and looked. The second thing is is that they had this guy's name in there very prominently located in the response plan and he was the guru and he was gonna come in and save the day if anything happened. Well, he had passed on several years before their plan was submitted. So I'm not sure how that works. They basically said that Deepwater Horizon well was 50 miles offshore, therefore it didn't pose a threat to the shoreline. Really. 3,000 miles in coastal Louisiana that were oil, over 3,000 miles. I think that the federal agencies must conduct more rigid reviews of response plans and I know that some of the previous speakers hit on that and I agree. I think the state has a role in there as well so I don't wanna just point fingers. The old school response technology, we need innovation. We're using technologies that were designed for the Valdez spill and for other spills that this, as noted, this is exponentially more oil than in any previous spill and the technology cannot be stagnant. We shouldn't be using decades old technology for a spill like this. A lot of people talked about the area contingency plan and whether it was appropriate. A plan's a plan. You're never gonna be able to design the plan for the spill. The plan's a framework. It's all about implementation. You've got to train. You need to try and develop plans that are robust and have flexibility to respond to different conditions but it's a plan, it's implementation that's critical and the relationship between the federal agencies, the state, the responsible parties, it's critical. Doing drills and understanding the relationships, it's critical. So a lot of people focus on the plan. It's important but implementation is critical. And I'm just gonna leave the last bullet there and say it again, that the responsible parties shouldn't run response. The regulatory capture doesn't even describe it. It's ridiculous. So thank you. Thank you to all of our panelists for the broad perspectives and the detailed information. I'm not sure that we really got an answer to the unifying question of what would be a single cause or the most important cause of the single factor that contributed to the magnitude of the event. And I think that that's indicative of the fact that it's very difficult to pinpoint just one thing. But we have time for a couple of questions from the audience and so let's go ahead and take that. Yes, and please announce your name and where you're coming from. And I'll repeat your question so it can be recorded for posterity. I have a question for Mr. Toy. I'm sorry, I don't know your rank. The Marine Well Containment System and also the Helio System that are relied on in the recent current applications that are perceived and contained in the possible flow. Your knowledge has keeping those systems being evaluated by the Coast Guard. To my knowledge, you know, what that doesn't mean it hasn't happened. I really don't know about that. Do you know if there's any plans for the Coast Guard to do the sort of testing analysis? I do not. We'll just take one more question. Good morning, Devin Dane. I'm from off the rice across the South for an irreversible claim to something. My question is for Mr. DePont and Mr. Westphalm. You mentioned the Wall Trust fund. We know it's had the limitation of $1 billion in that fund. And I think it's a great mission. It needs to be raised. You mentioned it's currently been depleted by $850 million and I know from all of the work that not a single claim that has been paid any money for lost profits or income because all those claims have been out of the Coast Guard and a lot of the fund-wise can be used for restoration purposes and other factors. If there's only $150 million left and you've already built BP rate of $150 million, is there any thought process where this money is put back in the fund can be utilized later and later years going on? Are we totally done in probably two or three weeks when we spend another $100 million and both be capped out and going back to this great point where we start with BP doing all kinds of restoration with the Coast Guard as our fund? So just to briefly rephrase the question, I believe that the question is, is the fund going to be restocked? Yeah, is it equal? Because we know there's limitation of $1 billion and it's about gone. Right. So my question is, is there any effort to figure out some way to replenish it, get some legislation passed quickly so that fund can be opened back up for more than a billion? I think there's a 2005 election rate of backers pass that absolutely capped it at a certain level and it's $1 billion for instance. I'm concerned as well as my clients that we're going to be quickly out of money by the Coast Guard and BP won't have to reimburse the money and whether it's going to be any buildings by the Coast Guard to pay clients in the future. So is there any intention to restock the fund or replenish the fund after it runs out? Sure. Roughly about $1.6 billion in the fund. The numbers I have in these aren't from this morning. They're a little dated, but they're fairly fresh. So far the US has spent about $876 million, so roughly $800 million still in the fund and BP has reimbursed or been billed. They don't have a breakdown for it, but they've been billed for over $600 million and someone that has already been paid. So if you just take the $800 million still left in the fund and let's assume that BP's already paid half of what they've been billed, $300 million, we're still sitting in a little over a billion in the fund. As far as expanding the funds and more, yes, I understand there are some legislative proposals to do that. I don't know where they stand. And I also know, and you probably know more than I do about this, the third party liability claim has set the procedures set up and there was an individual appointed to handle those independent of the fund. And I don't honestly, I don't know how that, I don't think that was actually envisioned in open 90, but regardless, that's what's been done. I don't know how that plays with the fund and whether that will provide some potential relief for your client. So let me add on a little bit to that because I think those two facts are very important, have to be separated out. First, the billion dollar cap was on a single incident. The fund, at this point, I know there's been several discussions on Capitol Hill as to whether it needs to be revisited, whether the per barrel tax needs to be increased to even increase the higher fund that opens down a few years ago because the fund was actually eroding money and now Deepwater Horizon Beside was projected to go up to 2.7 plus billion dollars. So in time it will go up but they're really looking at what about a catastrophic event if this happens. But I think it should be remembered that the claims against the fund are those claims by natural resource damage assessment and people who responded to the event. Third party claims are actually conducted between those individuals and the responsible party VP. And so there is a little difference as to who can actually make claims against the fund. But assuming that the client you represent have a legitimate expense against the fund, then the first order of business that they would, and you may have already gone through that, go through is to make sure that they have tried to exact payment from the responsible party, this place, VP or transition or someone. If that's failed, then they go against the government. They weigh that in. If the government feels it's a justified claim, they pay that claim. And I don't know where that process stands or if there's a delay. I had not heard of any major delays, but I do know that they were not processing claims until they were getting information from VP. If in the event that they do pay that claim, and it's a valid claim, then the government then seeks reimbursement from the responsible party themselves. They'll take that responsible party to court to get that money that they've paid out. So VP says, no, we're not gonna pay you. Government pays, then they go after VP. And then ultimately all that money gets reimbursed back into the fund. And again, against that billion dollar cap. I do, there were a couple issues that came out of this bill that were pertinent. One was the legal issue that even if VP put money back into the fund, let's say the expenses were $900 million and VP put every penny back into the fund. The amount of money that could come out of the fund was still only $100 million. It was not subtracted from the reimbursement. So that billion dollars per incident was a billion dollars, no matter how much money went back into the fund. And therefore the government was a bit standing into danger saying by law we can't exceed it even though there's money in there. And so the danger you talk about is a real danger if there's not a legal fix to that because once that billion dollars has been paid out, even if more money's come in, the laws that exist now did not allow for that reimbursement back into the fund. There are some more, certainly a lot more legal complications of that, but that kind of sets the stage for some of the issues that need a legislative solution. And I know the Coast Guard's working hard. Capitol Hill is looking at that to say, and how do we account for that? There's a couple, I would ask everybody to pay attention to what's going on and make sure that they let their congressman and senator know their feelings on this because there's a couple bills out there with different solutions as to how to solve that problem. And whether they get traction again, they've really been put on hold since the budget concern, but once there is a budget and they move forward, I do know there's an interest in some of the summit centers and congress to move forward some of these solutions. Okay, I think Julian has a quick response as well and then we'll break for... Very quickly, just I was calling around on this issue in January and basically very few people are paying attention to this in Washington. There's no indication that congress is gonna lift that $1 billion cap. So again, inaction usually carries today, particularly in this partisan environment that we're in right now. So it would be an uphill battle to change that cap although, again, if congress felt compelled to, they could. Okay, well done. Time for a minute, it's time for a break. Sorry, thank you. Thank you.