Cover Photo: © Steadfast TV
i i

This report is dedicated to the 11 men who 

lost their lives on the Deepwater Horizon rig on 

April 20, 2010 and to their families, in hope 

that this report will help minimize the chance 

of another such disaster ever happening again.

Jason Anderson

Aaron Dale Burkeen

Donald Clark

Stephen Curtis

Gordon Jones

Roy Wyatt Kemp

Karl Dale Kleppinger, Jr.

Blair Manuel

Dewey Revette

Shane Roshto

Adam Weise

Dedication
ii National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling

Acknowledgements

We wish to acknowledge the many individuals and organizations, government officials and agencies 

alike that offered their views and insights to the Commission. We would especially like to express our 

gratitude to the Coast Guard’s Incident Specific Preparedness Review (ISPR) for allowing Commission 

staff to participate in its interviews and discussions, which was invaluable to the preparation of this 

report. (A copy of the Coast Guard’s ISPR report can be found at the Commission’s website at www.

oilspillcommission.gov). We would also like to thank Chevron for performing the cement tests that 

proved so critical to our investigation into the Macondo well blowout. 

We also thank the Department of Energy, which served as our supporting agency, and all of the 

Department employees whose assistance was so essential to the success and functioning of the 

Commission. In particular, we would like to thank Christopher Smith, Deputy Assistant Secretary 

for Oil and Natural Gas, who acted as the Commission’s Designated Federal Officer, as well as Elena 

Melchert, Petroleum Engineer in the Office of Oil and Gas Resource Conservation, who served as the 

Committee Manager.

But most importantly, we are deeply grateful to the citizens of the Gulf who shared their personal 

experiences as Commissioners traveled in the region, providing a critical human dimension to the 

disaster and to our undertaking, as well as the many people who testified at the Commission’s 

hearings, provided public comments, and submitted statements to our website. Together, these 

contributions greatly informed our work and led to a better report. Thank you one and all.

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This report contains links to many Web sites. Once you access another site through a link that we provide, you are subject to the 

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Horizon Oil Spill and Offshore Drilling (Commission) endorses any of the organizations or views represented by the linked sites 

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iii iii

Deep Water

The Gulf Oil Disaster and the Future 

of Offshore Drilling

Recommendations

National Commission on the BP Deepwater Horizon 

Oil Spill and Offshore Drilling

January 2011
iv National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling

Commission Members

Bob Graham, Co-Chair

Cherry A. Murray

Donald F. Boesch

Fran Ulmer

Frances Beinecke

William K. Reilly, Co-Chair

Terry D. Garcia
v v

Table of Contents

Foreword........................................................................................................................................................ vi

Recommendations................................................................................................................................... 1

Improving the Safety of Offshore Operations: Government’s Role............................................................. 1

Improving the Safety of Offshore Operations: Industry’s Role................................................................ 12

Safeguarding the Environment............................................................................................................... 18

Strengthening Oil Spill Response, Planning, and Capacity........................................................................ 24

Advancing Well-Containment Capabilities.............................................................................................. 31

Overcoming the Impacts of the Deepwater Horizon Spill and Restoring the Gulf........................................ 35

Ensuring Financial Responsibility............................................................................................................ 45

Promoting Congressional Engagement to Ensure Responsible Offshore Drilling....................................... 50

Moving to Frontier Regions.................................................................................................................... 52

Conclusion............................................................................................................................................. 57

Appendix A: Commission Members............................................................... 62
vi National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling

Photo: Susan Walsh, Associated Press

Foreword

The explosion that tore through the Deepwater Horizon drilling rig last April 20th, as the rig’s crew 

completed drilling the exploratory Macondo well deep under the waters of the Gulf of Mexico, began 

a human, economic, and environmental disaster.

Eleven crew members died, and others were seriously injured, as fire engulfed and ultimately 

destroyed the rig. And, although the nation would not know the full scope of the disaster for 

weeks, the first of more than four million barrels of oil began gushing uncontrolled into the Gulf—

threatening livelihoods, precious habitats, and even a unique way of life. A treasured American 

landscape, already battered and degraded from years of mismanagement, faced yet another blow as 

the oil spread and washed ashore. Five years after Hurricane Katrina, the nation was again transfixed, 

seemingly helpless, as this new tragedy unfolded in the Gulf. The costs from this one industrial 

accident are not yet fully counted, but it is already clear that the impacts on the region’s natural 

systems and people were enormous, and that economic losses total tens of billions of dollars.

On May 22, 2010, President Barack Obama announced the creation of the National Commission on 

the BP Deepwater Horizon Oil Spill and Offshore Drilling: an independent, nonpartisan entity, directed 

to provide a thorough analysis and impartial judgment. The President charged the Commission to 

determine the causes of the disaster, and to improve the country’s ability to respond to spills, and 

to recommend reforms to make offshore energy production safer. And the President said we were to 

follow the facts wherever they led. 

This report is the result of an intense six-month effort to fulfill the President’s charge. 
vii vii

From the outset, the Commissioners have been determined to learn the essential lessons so 

expensively revealed in the tragic loss of life on the Deepwater Horizon and the severe damages 

that ensued. The Commission’s aim has been to provide the President, policymakers, industry, 

and the American people a clear, accessible, accurate, and fair account of the largest oil spill in U.S 

history: the context for the well itself, how the explosion and spill happened, and how industry and 

government scrambled to respond to an unprecedented emergency. This was our first obligation: 

determine what happened, why it happened, and explain it to Americans everywhere.

As a result of our investigation, we conclude:

•	 The explosive loss of the Macondo well could have been prevented.

•	 The immediate causes of the Macondo well blowout can be traced to a series of identifiable 

mistakes made by BP, Halliburton, and Transocean that reveal such systematic failures in risk 

management that they place in doubt the safety culture of the entire industry.

•	 Deepwater energy exploration and production, particularly at the frontiers of experience, involve 

risks for which neither industry nor government has been adequately prepared, but for which 

they can and must be prepared in the future.

•	 To assure human safety and environmental protection, regulatory oversight of leasing, energy 

exploration, and production require reforms even beyond those significant reforms already 

initiated since the Deepwater Horizon disaster. Fundamental reform will be needed in both 

the structure of those in charge of regulatory oversight and their internal decisionmaking 

process to ensure their political autonomy, technical expertise, and their full consideration of 

environmental protection concerns. 

•	 Because regulatory oversight alone will not be sufficient to ensure adequate safety, the oil 

and gas industry will need to take its own, unilateral steps to increase dramatically safety 

throughout the industry, including self-policing mechanisms that supplement governmental 

enforcement.

•	 The technology, laws and regulations, and practices for containing, responding to, and cleaning 

up spills lag behind the real risks associated with deepwater drilling into large, high-pressure 

reservoirs of oil and gas located far offshore and thousands of feet below the ocean’s surface. 

Government must close the existing gap and industry must support rather than resist that 

effort.

•	 Scientific understanding of environmental conditions in sensitive environments in deep Gulf 

waters, along the region’s coastal habitats, and in areas proposed for more drilling, such as the 

Arctic, is inadequate. The same is true of the human and natural impacts of oil spills. 
viii National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling

We reach these conclusions, and make necessary recommendations, in a constructive spirit: we aim 

to promote changes that will make American offshore energy exploration and production far safer, 

today and in the future.

More broadly, the disaster in the Gulf undermined public faith in the energy industry, government 

regulators, and even our own capability as a nation to respond to crises. It is our hope that a 

thorough and rigorous accounting, along with focused suggestions for reform, can begin the process 

of restoring confidence. There is much at stake, not only for the people directly affected in the Gulf 

region, but for the American people at large. The tremendous resources that exist within our outer 

continental shelf belong to the nation as a whole. The federal government’s authority over the shelf 

is accordingly plenary, based on its power as both the owner of the resources and in its regulatory 

capacity as sovereign to protect public health, safety, and welfare. To be allowed to drill on the outer 

continental shelf is a privilege to be earned, not a private right to be exercised.

“Complex Systems Almost Always Fail in Complex Ways”

As the Board that investigated the loss of the Columbia space shuttle noted, “complex systems almost 

always fail in complex ways.” Though it is tempting to single out one crucial misstep or point the 

finger at one bad actor as the cause of the Deepwater Horizon explosion, any such explanation provides 

a dangerously incomplete picture of what happened—encouraging the very kind of complacency 

that led to the accident in the first place. Consistent with the President’s request, this report takes an 

expansive view.

Why was a corporation drilling for oil in mile-deep water 49 miles off the Louisiana coast? To begin, 

Americans today consume vast amounts of petroleum products—some 18.7 million barrels per day—

to fuel our economy. Unlike many other oil-producing countries, the United States relies on private 

industry—not a state-owned or controlled enterprise—to supply oil, natural gas, and indeed all of 

our energy resources. This basic trait of our private-enterprise system has major implications for how 

the U.S. government oversees and regulates offshore drilling. It also has advantages in fostering a 

vigorous and competitive industry, which has led worldwide in advancing the technology of finding 

and extracting oil and gas.

Even as land-based oil production extended as far as the northern Alaska frontier, the oil and gas 

industry began to move offshore. The industry first moved into shallow water and eventually into 

deepwater, where technological advances have opened up vast new reserves of oil and gas in remote 

areas—in recent decades, much deeper under the water’s surface and farther offshore than ever 

before. The Deepwater Horizon was drilling the Macondo well under 5,000 feet of Gulf water, and 

then over 13,000 feet under the sea floor to the hydrocarbon reservoir below. It is a complex, even 

dazzling, enterprise. The remarkable advances that have propelled the move to deepwater drilling 

merit comparison with exploring outer space. The Commission is respectful and admiring of the 

industry’s technological capability.
ix ix

But drilling in deepwater brings new risks, not yet completely addressed by the reviews of where it is 

safe to drill, what could go wrong, and how to respond if something does go awry. The drilling rigs 

themselves bristle with potentially dangerous machinery. The deepwater environment is cold, dark, 

distant, and under high pressures—and the oil and gas reservoirs, when found, exist at even higher 

pressures (thousands of pounds per square inch), compounding the risks if a well gets out of control. 

Deepwater Horizon and the Macondo well vividly illustrated all of those very real risks. When a failure 

happens at such depths, regaining control is a formidable engineering challenge—and the costs of 

failure, we now know, can be catastrophically high.

In the years before the Macondo blowout, neither industry nor government adequately addressed 

these risks. Investments in safety, containment, and response equipment and practices failed to keep 

pace with the rapid move into deepwater drilling. Absent major crises, and given the remarkable 

financial returns available from deepwater reserves, the business culture succumbed to a false sense 

of security. The Deepwater Horizon disaster exhibits the costs of a culture of complacency.

The Commission examined in great detail what went wrong on the rig itself. Our investigative 

staff uncovered a wealth of specific information that greatly enhances our understanding of the 

factors that led to the explosion. The separately published report of the chief counsel (a summary 

of the findings is presented in Chapter 4) offers the fullest account yet of what happened on the rig 

and why. There are recurring themes of missed warning signals, failure to share information, and 

a general lack of appreciation for the risks involved. In the view of the Commission, these findings 

highlight the importance of organizational culture and a consistent commitment to safety by 

industry, from the highest management levels on down.*

But that complacency affected government as well as industry. The Commission has documented 

the weaknesses and the inadequacies of federal regulation and oversight, and made important 

recommendations for changes in legal authority, regulations, investments in expertise, and 

management.

The Commission also looked at the effectiveness of the response to the spill. There were remarkable 

instances of dedication and heroism by individuals involved in the rescue and cleanup. Much was 

done well—and thanks to a combination of good luck and hard work, the worst-case scenarios did 

not all come to pass. But it is impossible to argue that the industry or the country was prepared 

for a disaster of the magnitude of the Deepwater Horizon oil spill. Twenty-one years after the Exxon 

Valdez spill in Alaska, the same blunt response technologies—boom, dispersants, and skimmers—

were used, to limited effect. On-the-ground shortcomings in the joint public-private response to an 

overwhelming spill like that resulting from the blowout of the Macondo well are now evident, and 

demand public and private investment. So do the weaknesses in local, state, and federal coordination 

revealed by the emergency. Both government and industry failed to anticipate and prevent this 

catastrophe, and failed again to be prepared to respond to it.

*The chief counsel’s investigation was no doubt complicated by the Commission’s lack of subpoena power. Nonetheless, Chief Counsel Bartlit did an extraordinary job building the record and interpreting what 

he learned. He used his considerable powers of persuasion along with other tools at his disposal to engage the involved companies in constructive and informative exchanges.
x National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling

If we are to make future deepwater drilling safer and more environmentally responsible, we will 

need to address all these deficiencies together; a piecemeal approach will surely leave us vulnerable 

to future crises in the communities and natural environments most exposed to offshore energy 

exploration and production. 

The Deepwater Drilling Prospect

The damage from the spill and the impact on the people of the Gulf has guided our work from the 

very beginning. Our first action as a Commission was to visit the Gulf region, to learn directly from 

those most affected. We heard deeply moving accounts from oystermen witnessing multi-generation 

family businesses slipping away, fishermen and tourism proprietors bearing the brunt of an illfounded stigma affecting everything related to the Gulf, and oil-rig workers dealing with mounting 

bills and threatened home foreclosures, their means of support temporarily derailed by a blanket 

drilling moratorium, shutting down all deepwater drilling rigs, including those not implicated in the 

BP spill. 

Indeed, the centrality of oil and gas exploration to the Gulf economy is not widely appreciated by 

many Americans, who enjoy the benefits of the energy essential to their transportation, but bear 

none of the direct risks of its production. Within the Gulf region, however, the role of the energy 

industry is well understood and accepted. The notion of clashing interests—of energy extraction 

versus a natural-resource economy with bountiful fisheries and tourist amenities—misses the extent 

to which the energy industry is woven into the fabric of the Gulf culture and economy, providing 

thousands of jobs and essential public revenues. Any discussion of the future of offshore drilling 

cannot ignore these economic realities. 

But those benefits have imposed their costs. The bayous and wetlands of Louisiana have for decades 

suffered from destructive alteration to accommodate oil exploration. The Gulf ecosystem, a unique 

American asset, is likely to continue silently washing away unless decisive action is taken to start 

the work of creating a sustainably healthy and productive landscape. No one should be deluded that 

restoration on the scale required will occur quickly or cheaply. Indeed, the experience in restoring 

other large, sensitive regions—the Chesapeake Bay, the Everglades, the Great Lakes—indicates that 

progress will require coordinated federal and state actions, a dedicated funding source, long-term 

monitoring, and a vocal and engaged citizenry, supported by robust non-governmental groups, 

scientific research, and more.

We advocate beginning such an effort, seriously and soon, as a suitable response to the damage and 

disruption caused by the Deepwater Horizon emergency. It is a fair recognition not only of the costs 

that energy exploitation in the Gulf has, for decades, imposed on the landscape and habitats—and 

the other economic activities they support—but also of the certainty that Americans will continue to 

develop the region’s offshore energy resources. 

For the simple fact is that the bulk of our newly discovered petroleum reserves, and the best prospects 

for future discoveries, lie not on land, but under water. To date, we have made the decision as a 

nation to exploit the Gulf’s offshore energy resources—ruling much of the Florida, Atlantic, and 
xi xi

Pacific coasts out of bounds for drilling. The choice of how aggressively to exploit these resources, 

wherever they may be found, has profound implications for the future of U.S. energy policy, for 

our need to understand and assure the integrity of fragile environmental resources, and for the 

way Americans think about our economy and our security. Although much work is being done to 

improve the fuel-efficiency of vehicles and to develop alternative fuels, we cannot realistically walk 

away from these offshore oil resources in the near future. So we must be much better prepared to 

exploit such resources with far greater care.

The Commission and Its Work

While we took a broad view of the spill, it could not be exhaustive. There is still much we do not 

know—for instance, the blowout preventer, the last line of defense against loss of well control, is 

still being analyzed; and the Deepwater Horizon itself, after its explosive destruction, remained out of 

reach during our investigation. The understandable, immediate need to provide answers and concrete 

suggestions trumped the benefits of a longer, more comprehensive investigation. And as we know 

from other spills, their environmental consequences play out over decades—and often in unexpected 

ways. 

Instead, the Commission focused on areas we thought most likely to inform practical 

recommendations. Those recommendations are presented in the spirit of transforming America into 

the global leader for safe and effective offshore drilling operations. Just as this Commission learned 

from the experiences of other nations in developing our recommendations, the lessons learned from 

the Deepwater Horizon disaster are not confined to our own government and industry, but relevant to 

rest of the world. 

We wish we could say that our recommendations make a recurrence of a disaster like the Macondo 

blowout impossible. We do not have that power. No one can eliminate all risks associated with 

deepwater exploration. But when exploration occurs, particularly in sensitive environments like the 

Gulf of Mexico or the Arctic, the country has an obligation to make responsible decisions regarding 

the benefits and risks.

The Commission’s full report is divided into three sections.

Chapters 1 through 3 describe the events of April 20th on the Deepwater Horizon, and, more 

important, the events leading up to it in the preceding decades—especially how the dramatic 

expansion of deepwater drilling in the Gulf was not met by regulatory oversight capable of ensuring 

the safety of those drilling operations. 

Chapters 4 through 7 lay out the results of our investigation in detail, highlighting the crucial issues 

we believe must inform policy going forward: the specific engineering and operating choices made 

in drilling the Macondo well, the attempts to contain and respond to the oil spill, and the impacts of 

the spill on the region’s natural resources, economy, and people—in the context of the progressive 

degradation of the Mississippi Delta environment. 
xii National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling

Chapters 8 through 10 present our recommendations for reforms in business practices, regulatory 

oversight, and broader policy concerns. We recognize that the improvements we advocate all come 

with costs and all will take time to implement. But inaction, as we are deeply aware, runs the risk 

of real costs, too: in more lost lives, in broad damage to the regional economy and its long-term 

viability, and in further tens of billions of dollars of avoidable clean-up costs. Indeed, if the clear 

challenges are not addressed and another disaster happens, the entire offshore energy enterprise is 

threatened—and with it, the nation’s economy and security. We suggest a better option: build from 

this tragedy in a way that makes the Gulf more resilient, the country’s energy supplies more secure, 

our workers safer, and our cherished natural resources better protected.

Our Thanks and Dedication

We thank President Obama for this opportunity to learn thoroughly about the crisis, and to share 

our findings with the American public. We deeply appreciate the effort people in the affected Gulf 

regions made to tell us about their experiences, and the time and preparation that witnesses before the 

Commission dedicated to their presentations. We have come to respect the seriousness with which our 

fellow Commissioners assumed our joint responsibilities, and their diverse expertise and perspectives 

that helped make its work thorough and productive. On their behalf, we wish to recognize the 

extraordinary work the Commission’s staff—scientists, lawyers, engineers, policy analysts, and 

more—performed, under demanding deadlines, to make our inquiries broad, deep, and effective; and 

we especially highlight the leadership contributions of Richard Lazarus, executive director, and Fred 

Bartlit, chief counsel. Together, they have fulfilled an extraordinary public service.

Finally, to the American people, we reiterate that extracting the energy resources to fuel our cars, heat 

and light our homes, and power our businesses can be a dangerous enterprise. Our national reliance 

on fossil fuels is likely to continue for some time—and all of us reap benefits from the risks taken by 

the men and women working in energy exploration. We owe it to them to ensure that their working 

environment is as safe as possible. We dedicate this effort to the 11 of our fellow citizens who lost 

their lives in the Deepwater Horizon explosion.

Bob Graham, Co-Chair

William K. Reilly, Co-Chair
1 1

Recommendations

Introduction

The President asked this Commission to “develop options for guarding against, and mitigating 

the impact of, oil spills associated with offshore drilling”1 in recognition of the compelling need to 

balance the nation’s interest in offshore energy resources with protection of our rich marine and 

coastal environments. To that end, the Commission’s full report details the complex web of decisions, 

actions, and circumstances that set the stage for the BP Deepwater Horizon disaster. Among the chief 

actors in that web was the government itself, which played a key role both in setting the policies that 

shaped offshore oil and gas activities in the Gulf over the course of many decades, and in overseeing 

responses to the spill once it began.

This report presents the Commission’s complete recommendations for addressing the causes and 

consequences of the spill. The recommendations reflect the government’s sweeping sovereign 

authority as both owner of the seabed and water column and as the regulator of activities, with the 

overriding responsibility to manage and protect the valuable resources of the outer continental shelf 

(OCS) on behalf of current and future generations of Americans. They are grouped in nine distinct 

areas: 

• Improving the Safety of Offshore Operations: Government’s Role

• Improving the Safety of Offshore Operations: Industry’s Role

• Safeguarding the Environment

• Strengthening Oil Spill Response, Planning, and Capacity

• Advancing Well-Containment Capabilities

• Overcoming the Impacts of the Deepwater Horizon Spill and Restoring the Gulf

• Ensuring Financial Responsibility

• Promoting Congressional Engagement to Ensure Responsible Offshore Drilling 

• Moving to Frontier Regions

The sections that follow summarize the context and rationale for each of the Commission’s specific 

recommendations. The commission’s full report, as well as staff working papers published by the 

Commission and available at www.oilspillcommission.gov, provide additional detail and further 

support for the recommendations.*

Improving the Safety of Offshore Operations: Government’s Role

Federal efforts to regulate the offshore oil and gas industry have suffered for years from cross-cutting 

purposes, pressure from political and industry interests, a deepening deficit of technical expertise, and 

severely inadequate resources available to the government agencies tasked with the leasing function 

and regulation. 

*For each of the recommendations that follow, full citations to supporting sources can be found in the sections of the full report, or in the relevant staff working papers, that address the topic of the 

recommendation.
2 National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling

Satellite-eye views of the Gulf a month after the Macondo blowout reveal the extent of the spill. Oil appears lighter or darker in the photograph depending on the relative angles 

of sun and camera.

NASA/GSFC, MODIS Rapid Response

In the aftermath of the Deepwater Horizon oil spill, the Department of the Interior has already taken a 

series of significant and important steps to improve regulatory oversight of offshore drilling. 

But given the deep-rooted problems that had existed at the Department’s Minerals Management 

Service (MMS) before the spill occurred, and the near certainty that the oil and gas industry will 

seek to expand into ever more challenging environments in the years ahead, a more comprehensive 

overhaul of both leasing and the regulatory policies and institutions used to oversee offshore activities 

is required. The necessary overhaul, to be successful, must address three core issues: (1) reducing 

and managing risk more effectively using strategies that can keep pace with a technologically 

complex and rapidly evolving industry, particularly in high-risk and frontier areas; (2) assuring the 

independence and integrity of government institutions charged with protecting the public interest; 

and (3) securing the resources needed to provide a robust capability to execute the leasing function 

and adequate regulatory oversight. 
3 3

The Need for a New Approach to Risk Assessment and Management 

Neither the industry’s nor the federal government’s approaches to managing and overseeing the 

leasing and development of offshore resources have kept pace with rapid changes in the technology, 

practices, and risks associated with the different geological and ocean environments being explored 

and developed for oil and gas production. Nor do these approaches reflect the significant changes 

that have occurred in the structure of the oil and gas industry itself—especially the rise of specialized 

service contractors and the general trend toward outsourcing multiple functions. When the operator 

directly regulated by the government does not itself perform many of the activities critical to well 

safety, regulators face additional challenges due to the separation of these functions. However, MMS 

did not change its regulatory oversight to respond to these industry changes by making the service 

companies more accountable. In other countries, operators of drilling are required to demonstrate to 

the regulators their own fitness and risk management systems. 

Also missing has been any systematic updating of the risk assessment and risk management tools 

used as the basis for regulation. MMS attempted under several administrations to promulgate 

regulations that would have required companies to manage all of their activities and facilities, and 

those of their contractors, under a documented Safety and Environmental Management System 

(SEMS). But, in the face of industry opposition, MMS did not adopt such a requirement until 

September 2010, after the BP Deepwater Horizon disaster. Industry objections also derailed a past 

MMS proposal to expand data reporting requirements as part of an effort to track and analyze 

offshore incidents and to identify safety trends and lagging and leading indicators. The proposal 

was abandoned when the Office of Management and Budget agreed with industry complaints 

about compliance cost (industry also complained about the potential for overlap with Coast Guard 

reporting requirements). As a result, there has historically been no legal requirement that industry 

track or report instances of uncontrolled hydrocarbon releases or “near misses”—both indicators that 

could point to a heightened potential for serious accidents. The United States has the highest reported 

rate of fatalities in offshore oil and gas drilling among its international peers, but it has the lowest 

reporting of injuries. This striking contrast suggests a significant under-reporting of injuries in the 

United States and highlights the need for better data collection to ensure needed attention to worker 

safety. 

Government agencies that regulate offshore activity should reorient their regulatory approaches to 

integrate more sophisticated risk assessment and risk management practices into their oversight of 

energy developers operating offshore. They should shift their focus from prescriptive regulations 

covering only the operator to a foundation of augmented prescriptive regulations, including those 

relating to well design and integrity, supplemented by a proactive, risk-based performance approach 

that is specific to individual facilities, operations, and environments. This would be similar to the 

“safety case”*

 approach that is used in the North Sea, which requires the operator and drilling 

rig owners to assess the risks associated with a specific operation, develop a coordinated plan to 

manage those risks, integrate all involved contractors in a safety management system, and take 

responsibility for developing and managing the risk management process. 

*The term “safety case” is a shorthand expression for a comprehensive and structured set of safety documentation that provides a basis for determining whether a risk management system for a specific vessel 

or equipment is adequately safe for a given application in a given environment.
4 National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling

To accomplish these goals of creating a new approach to risk assessment and management, the 

Commission offers the following three recommendations:

Recommendations

The Department of the Interior should supplement the risk-management program with prescriptive safety 

and pollution-prevention standards that are developed and selected in consultation with international 

regulatory peers and that are at least as rigorous as the leasing terms and regulatory requirements in peer 

oil-producing nations .

The Department of the Interior should develop a proactive, risk-based performance approach specific to 

individual facilities, operations and environments, similar to the “safety case” approach in the North Sea. 

Working with the International Regulators’ Forum and other organizations, Congress and the Department 

of the Interior should identify those drilling, production, and emergency-response standards that best 

protect offshore workers and the environment, and initiate new standards and revisions to fill gaps and 

correct deficiencies. These standards should be applied throughout the Gulf of Mexico, in the Arctic, and 

globally wherever the international industry operates. Standards should be updated at least every five 

years as under the formal review process of the International Organization for Standardization (ISO). 

Even as Deepwater Horizon burns, oil from the blown out well begins to spread across the Gulf. Preventing such disasters in the future will take more effective government 

oversight. Most crucial, however, will be the oil and gas industry’s commitment to fundamentally transform its own safety culture. 

Photo: Gerald Herbert/Associated Press
5 5

More specifically, the following actions are needed to truly transition to a proactive, risk-based 

performance approach: 

 

•	 Engage a competent, independent engineering consultant to review existing regulations for 

adequacy and “fit for purpose” as a first step toward benchmarking U.S. regulations against the 

highest international standards. Following this review, develop and implement regulations for 

safety and environmental protection that are at least as rigorous as the regulations in peer-oilproducing nations. A new regulatory entity for safety and environment (as described below) 

should ensure that while engaged in petroleum activities all drilling and production platforms 

are certified and operating at the highest level of international regulatory practice. 

•	 Require operators to develop a comprehensive “safety case” as part of their exploration and 

production plans—initially for ultra-deepwater (more than 5,000 feet) areas, areas with complex 

geology, and any other frontier or high-risk areas—such as the Arctic. In addition, for lease 

sales in those and other areas, prospective lessees should be required to demonstrate competence, 

based on experience, financial capacity, and expertise, as a prequalification for bidding. 

•	 Expand Safety Environmental Management System requirements to include regular third-party 

audits at three- to five-year intervals and certification. These plans should be expanded for 

frontier areas to encompass the full range of risk assessment and management.

•	 For both new and transferred leases, require the operator to participate in a new safety 

institute or agree to expert audits, and to contribute to safety and environmental research and 

development. Approval to transfer leases sold prior to this requirement should be conditioned 

on the new requirements based on risk factors related to the specific requirements of the lease. 

The lease stipulation should also include the requirement that the operator possess adequate 

capability to contain and respond to an oil spill, and sufficient financial capacity to compensate 

for damages caused by a spill. 

•	 To cultivate and maintain government expertise on offshore drilling safety: 

(1) Establish a process under the auspices of the National Academy of Engineering to identify 

criteria for high-risk wells and develop methodology to assess those risks. This process 

should include, to the extent that the National Academy deems appropriate, input from 

experts in the U.S. Geological Survey, the Department of Energy, the National Oceanic and 

Atmospheric Administration, and academia. Furthermore, the Department of the Interior 

should develop in-house competence to perform such sophisticated risk assessments. Such 

evaluations could guide the transition to a system where all operators and contractors are 

required to demonstrate an integrated, proactive, risk management approach prior to leases 

being granted or receiving permits for exploration wells and major development projects. As 

noted above, these efforts should initially focus on areas with complex geology, ultra-deep 

water, and any other frontier or high-risk areas—such as the Arctic.
6 National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling

(2) Establish a coordinated, interagency research effort to develop safer systems, equipment, 

and practices to prevent failures of both design and equipment in the future. The federal 

government has relevant expertise in areas such as the application of remote sensing and 

diagnostics, sensors and instrumentation, and command electronics that could and should 

be transferred to the offshore industry.*

 The Ultra-Deepwater and Unconventional Natural 

Gas and Other Petroleum Resources Program, an existing research and development program 

created by statute and managed by the Secretary of Energy, should be refocused toward 

mitigating the risks of offshore operations.

•	 Develop more detailed requirements for incident reporting and data concerning offshore incidents 

and “near misses.” Such data collection would allow for better tracking of incidents and stronger 

risk assessments and analysis. In particular, such reporting should be publicly available and 

should apply to all offshore activities, including incidents relating to helicopters and supply 

vessels, regardless of whether these incidents occur on or at actual drilling rigs or production 

facilities. In addition, Interior, in cooperation with the International Regulators Forum, should 

take the lead in developing international standards for incident reporting in order to develop 

a consistent, global set of data regarding fatalities, injuries, hydrocarbon releases, and other 

accidents. Sharing information as to what went wrong in offshore operations, regardless of 

location, is key to avoiding such mistakes. 

•	 Lead in the development and adoption of shared international standards, particularly in the 

Gulf of Mexico and the Arctic. Transparent information and data sharing within the offshore 

industry and among international regulators is critical to continuous improvement in standards 

and risk management practices. The United States shares the waters of the Gulf of Mexico and 

its sub-surface resources with Cuba and the Republic of Mexico. After many decades of declining 

investment and production in the Mexican part of the Gulf by PEMEX, the national oil company, 

a recent Mexican Supreme Court ruling has created the opportunity for U.S. and other foreign 

oil and gas companies to enter Mexican waters. PEMEX has indicated its intention to auction 

deepwater contracts beginning in 2012. Separately, Cuba has already leased blocks 50 miles 

off the coast of Florida with reported plans for seven exploration wells by 2014. Agreement on 

standards for operations should be part of any negotiation to define the maritime boundary 

between the United States, Mexico, and Cuba in the eastern Gulf of Mexico. The need for 

international standards for activities in the Arctic is also unquestioned: the United States having 

already awarded leases in the region and now it is incumbent on the United States to push for 

such standards. 

•	 Provide protection for “whistleblowers” who notify authorities about lapses in safety. All 

offshore workers have a duty to ensure safe operating practices to prevent accidents. To ensure 

all workers, regardless of employer, will take appropriate action whenever necessary, Congress 

should amend the Outer Continental Shelf Lands Act or specific safety statutes to provide the 

same whistleblower protection that workers are guaranteed in other comparable settings.

* Secretary of Energy Steven Chu advised the Commission on the capacity within the Department of Energy, the Nuclear Regulatory Commission, the Federal Aviation Administration and elsewhere in the federal government to undertake sophisticated risk and technology assessments. The Department of Energy and the national laboratories have the depth and breadth of research and technical experience in such 

areas as high-performance computing, image processing, mechanical/structural stress analysis, complex fluid flow simulations, and other areas that proved instrumental in diagnosing the state of the Macondo 

well blowout preventer and in assessing plans to stop the leak. 
7 7

The Need for a New, Independent Agency 

Primary responsibility for regulating the offshore oil and gas industry prior to the Deepwater 

Horizon accident was consolidated in a single agency, MMS. MMS was not only responsible for 

offshore leasing and resource management; it also collected and disbursed revenues from offshore 

leasing, conducted environmental reviews, reviewed plans and issued permits, conducted audits 

and inspections, and enforced safety and environmental regulations. And though the revenue 

management and resource management functions of MMS were separated into two distinct divisions, 

the mingling of distinct statutory responsibilities—each of which required different skill sets and 

fostered different institutional cultures—led inevitably to internal tensions and a confusion of goals 

that weakened the agency’s effectiveness and made it more susceptible to outside pressures. 

At the core of this tension was a trade-off between, on the one hand, promoting the “expeditious 

and orderly development” of offshore resources, as mandated by the Outer Continental Lands Act 

of 1978, while also ensuring, on the other hand, that offshore development proceeded in a manner 

that protected human health, safety, and the environment. Over the course of many years, political 

pressure generated by a demand for lease revenues and industry pressure to expand access and 

expedite permit approvals and other regulatory processes often combined to push MMS toward 

elevating the former goal over the latter. At the same time, the fact that MMS lacked either a 

clearly articulated mission or adequate guidance for balancing its different missions led to inefficient 

management and a tendency to defer to industry, which successfully sought congressional and 

political intervention to shorten time frames for plan and permit reviews, blocked royalty valuation 

rulemakings, and advocated to delay and weaken rules aimed at improving the safety management 

of operations. 

All of these problems were compounded by an outdated organizational structure, a chronic shortage 

of resources, a lack of sufficient technological expertise, and the inherent difficulty of coordinating 

effectively with all the other government agencies that had statutory responsibility for some aspect 

of offshore oil and gas activities. Besides MMS, other offices of the Department of the Interior as 

well as the Departments of Transportation, Commerce, Defense, and Homeland Security, and the 

Environmental Protection Agency (EPA) were involved in some aspect of the industry and its manyfaceted facilities and operations, from workers on production platforms to pipelines, helicopters, 

drilling rigs, and supply vessels. 

Not surprisingly, the Macondo well failure in April 2010 turned a harsh spotlight on all these 

bureaucratic inadequacies and shortcomings. And shortly after the accident, Interior Secretary Ken 

Salazar renamed MMS the Bureau of Ocean Energy Management, Regulation and Enforcement 

(BOEMRE) and announced a plan to split its responsibilities into three separate offices.*

*The use of “BOEMRE” will be limited here to actions since MMS was renamed.
8 National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling

Although the proposed reorganization of Interior’s offshore leasing, safety, and revenue management 

program represents a significant improvement, it does not adequately address the deeper problem of 

fully insulating the Department’s safety and environmental protection functions from the pressures 

to increase production and maximize lease revenues. 

Recommendations

Congress and the Department of the Interior should create an independent agency within the Department 

of the Interior with enforcement authority to oversee all aspects of offshore drilling safety (operational and 

occupational), as well as the structural and operational integrity of all offshore energy production facilities, 

including both oil and gas production and renewable energy production. 

Congress and the Department of the Interior should provide a mechanism, including the use of lease 

provisions for the payment of regulatory fees, for adequate, stable, and secure funding to the key 

regulatory agencies—Interior, Coast Guard, and NOAA—to ensure that they can perform their duties, 

expedite permits and reviews as needed, and hire experienced engineers, inspectors, scientists, and first 

responders. (See additional discussion on page 52.) 

FIGURE 1: MMS Budget and Gulf of Mexico Crude Oil Production, 1984-2009 

0

50

100

150

200

250

600

Barrels of Oil (Millions)

Year

19901991199219931994199519961997199819992000200120022003200420052006200720082009

• Ultra-Deep (5,000+ ft)

• Deep (1,000–4,999 ft)

• Shallow (0–999 ft)

 OEMM Enacted Budget 1984 1985 1986 1987 1988 1989

$0

$50

$100

$150

$200

$250

$300

Real 2005 Doallars (Millions)

In the last twenty years, MMS’s leasing, environmental, and regulatory budget decreased or remained static while deepwater oil production in the Gulf of Mexico boomed. 

Note: Office of Energy and Minerals Management (OEMM) has responsibility for renewable energy, leasing and environmental, resource evaluation, regulatory, and information 

management programs. It does not include revenue management or general administration.

Source: Commission Staff, Adapted from Department of the Interior and Energy Information Administration
9 9

The roles and responsibilities of the former MMS should be separated into three entities with clearly 

defined statutory authorities. One entity would be responsible for offshore safety and environmental 

enforcement; another would perform functions related to leasing and environmental science; and the 

third would manage natural resource revenues. The safety and environment enforcement authority 

or entity, in particular, should have primary statutory responsibility for overseeing the structural 

and operational integrity of all offshore energy-related facilities and activities, including both oil and 

gas offshore drilling and renewable energy facilities.

•	 A new office of safety should consolidate responsibility for safety—including infrastructure and 

operational integrity, as well as spill prevention and response—for all offshore fossil fuel and 

renewable resource development activities, structures, and workers. It should be an independent 

agency housed at the Department of the Interior to facilitate coordination with a new office 

for leasing and environmental science. Congress should enact an organic act to establish its 

authorities and responsibilities, consolidating the various responsibilities now under the Outer 

Continental Shelf Lands Act, the Pipeline Safety Act, and Coast Guard authorizations. The new 

office should have primary authority over facilities, structures, and units for offshore oil and 

gas drilling, production, and renewable energy that are engaged in energy-related activities, 

including authority to establish and enforce specific safety and environmental protection 

requirements for these units as well as requirements for operators who may be leasing the 

facilities. 

•	 Congress should review and consider amending where necessary the governing statutes for all 

agencies involved in offshore activities to be consistent with the responsibilities functionally 

assigned to those agencies. The safety-related responsibilities of the new offshore safety 

agency should be included in a separate statute. (Further specifics regarding the Commission’s 

recommended organizational structure for new offices to regulate safety and leasing are 

discussed below).

•	 To ensure that Interior has the ability to provide adequate leasing capabilities and regulatory 

oversight for the increasingly complex energy-related activities being undertaken on the OCS, 

budgets for these new offices as well as existing agencies should come directly from fees paid 

by the offshore industry, akin to how fees charged to the telecommunications industry pay for 

the expenses of the Federal Communications Commission, which is essentially fully funded by 

such regulated industry payments. Through this mechanism, Congress, through legislation, and 

Interior, through lease provisions,2 could expressly oblige lessees to fund the regulation necessary 

to allow for private industry access to the energy resources on the OCS, including renewables. 

Under existing law, the oil and gas industry already pays inspection fees that currently amount 

to about $10 million per year or about 3 percent of BOEMRE’s annual budget, but this amount 

can and should be increased significantly. (For additional discussion of funding, see “The Need 

for Adequate Funding for Safety Oversight and Environmental Review” page 52.) 
10 National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling

Implementing the Commission’s recommendation to reorganize the former MMS into three offices 

and to enhance these offices’ technical capacities will require a sustained effort over a period of 

years. The President or Interior Secretary should effect this reorganization to the extent possible 

administratively and request congressional enactment to confirm its permanence and provide for the 

statutory recognition of a term of office for the director of safety and environmental regulation.

Proposed Reorganization Of The Former Minerals Management Service 

Offshore Safety Authority: This office would exercise independent statutory authority over 

technical and operational safety in all phases of OCS energy resource development projects, 

including the planning, designing, constructing, operating, and decommissioning of facilities and 

projects, and will have overall responsibility for fostering safe and environmentally sound offshore 

energy operations. The new agency would oversee all non-economic aspects of the operations 

and structures involved in drilling and production of oil and gas, pipelines, and wind towers, wave, 

tidal, and other renewable technologies located on the federal offshore zone. The new safety and 

environment authority would also have the lead coordination role in relation to other regulators 

with independent authority over offshore oil and gas activities, including EPA, NOAA and the 

Coast Guard. Key responsibilities include:

•	 Reviewing and approving (or denying) all permits under exploration, development, and 

 production plans.

•	 Inspecting all offshore operations by expert teams through scheduled and unannounced 

 inspections.

•	 Auditing or otherwise requiring certification of operator health, safety, and environmental 

 management systems.

•	 Evaluating eligibility for lessees based on safety and environmental qualifications.

•	 Reviewing and approving the safety and feasibility of any environmental mitigation activities 

 prescribed by National Environmental Policy Act (NEPA) documents and other environmental 

 consultations, authorization, or permits in addition to enforcing such requirements over the 

 duration of an operation.

•	 Collecting and analyzing leading and lagging indicators from all active parties for full risk 

 evaluation.

•	 Promulgating all structural integrity, process, and workplace safety rules and regulations in 

 order to create a foundation of prescriptive regulations to supplement performance-based 

 (“safety case”) regulations.

•	 Providing technical review and comment on the five-year leasing program and individual 

 lease sales. 

•	 Providing technical review of spill response and containment plans.

•	 Reviewing and approving all spill response and containment plans and advising the new 

 safety authority on environmental considerations.

•	 Investigating all accidents and other significant events that could have potentially turned 

 catastrophic.
11 11

The organization and staffing composition should be decided during a transition period, when the 

areas and activities are analyzed and categorized by risk. The director of the new organization 

should be a qualified executive with a relevant engineering or technical background, and should 

be appointed by the President for a five- to six-year term and confirmed by the Senate. In 

addition, the new agency should have classifications and salary scales for engineering and 

technical staff and inspectors similar to those of the Nuclear Regulatory Commission. 

Leasing and Environmental Science Office: This office would act as the leasing and resource 

manager for conventional and renewable energy and other mineral resources on the OCS. 

Charged with fostering environmentally responsible and efficient development of the OCS, 

the office would ensure that the American people both receive fair market value for the rights 

conveyed and that the nation’s rich marine environment remains protected. The United States 

cannot afford a repetition of the kind of contractual drafting mistake that is literally costing the 

nation tens of billions of dollars in lost revenues. Key responsibilities include: 

•	 Conducting OCS resource planning processes, including the five-year leasing program and 

 individual lease sales.

•	 Conducting individual lease sales for oil, gas, and renewable energy facilities offshore.

•	 Promulgating rules and regulations with respect to lease terms, resource access, and use.

•	 Approving nonengineering or operations aspects of exploration, development, and 

 production plans, subject to review by the new safety authority to ensure no conflicts with 

 permitting requirements for infrastructure and operations.

•	 Reviewing and approving all spill response and containment plans and advising the new 

 safety authority on environmental considerations.

•	 Making resource management decisions, such as those related to timing of reservoir 

abandonment and 

 shared reservoir issues,unitization, commingling, and optimizing oil and gas recovery. 

•	 Reviewing and approving permits for seismic activities. 

•	 Conducting NEPA reviews at all relevant phases and coordinating other environmental 

 reviews when appropriate 

•	 Administering the Environmental Studies Program. 

The leasing and environmental science office would include two distinct divisions: a leasing and 

resource evaluation division and an environmental science division. To provide an important 

and equitable voice for environmental concerns during the five-year planning process and lease 

awards, the environmental science division would be structured with a separate line of reporting 

to the Assistant Secretary overseeing offshore drilling and the environmental science division 

would be led by a Chief Scientist. The Chief Scientist’s responsibilities would include, but not 

be limited to, conducting all NEPA reviews and coordinating other environmental reviews when 

appropriate and administering the Environmental Studies Program. The Chief Scientist’s expert 

judgment on environmental protection concerns would be accorded significant weight in the 
12 National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling

leasing decision-making process, including on questions concerning whether and where leasing 

should occur and what environmental protection and mitigation conditions should be placed on 

leases that are issued. The new organization and process would also include enhanced review 

of environmental decisions and enforcement by the safety authority. It should track all mitigation 

efforts from NEPA documents and other environmental reviews to assist the new safety authority 

in its environmental enforcement duties.

Office of Natural Resources Revenue (ONRR): Revenue collection and auditing functions 

would remain with the Assistant Secretary for Policy, Management, and Budget as per the recent 

re-organization implemented by Secretary Salazar.

Improving the Safety of Offshore Operations: Industry’s Role

The Need for a New Industry-Run Safety Organization

Complacency about risks to safety had catastrophic consequences in the Deepwater Horizon explosion, 

and in turn created economic havoc for companies not implicated in the Macondo well and not 

known for cavalier disregard of process safety. A new, private-sector entity that will work with 

government bodies is needed to define best practices and police them, providing a mechanism for the 

leading companies to ensure the industry is not compromised by other enterprises with weaker safety 

standards and records. The public interest will also be served by such an entity, which will encourage 

excellence in operational integrity and help shape new safety norms and high safety expectations 

across the entire offshore oil and gas business. 

The oil and gas industry currently has no discernable, broadly embraced culture of safety. As 

exploration and production move into ever more challenging environments, the public, the 

government, and even many in the industry lack confidence that all the companies can operate in the 

frontier and deepwater environments without creating unacceptable risks of harm to their workers, 

the local and regional economies, and the environment. 

The Macondo well accident and subsequent investigations revealed that while industry had devoted 

billions of dollars to the technologies required for deepwater drilling, it had devoted essentially 

nothing to creating alternative capabilities to deal with the foreseeable consequences of a disaster. 

Other inherently risky industries and endeavors (e.g., the United States nuclear Navy, civilian 

nuclear power plant operators, and chemical manufacturers) have improved their safety culture 

and performance by creating self-policing organizations involved in standard-setting, auditing, 

exchanging best practices, training, ensuring accountability, and enforcement. The experience from 

offshore drilling and production activities, and knowledge of geologic and ocean conditions outside 

the U.S., can provide insights into potential risks and the best practices for managing them effectively. 
13 13

Loss of Well Control Accidents and Resulting Consequences

• Loss of Well Control

• Panel Investigation

• Fire or Explosion

• Fatalities

• Fire or Explosion with Fatalities or Injuries

Between 1996 and 2009, in the U.S. Gulf of Mexico, there were 79 reported loss of well control accidents—when hydrocarbons flowed uncontrolled either underground or 

at the surface. The regulator considers the following three factors when determining whether or not an accident will undergo a panel investigation: the actual and potential 

severity of the incident; the complexity of the incident; and, the probability of similar incidents occurring.

Source: Bureau of Ocean Energy Management, Regulation and Enforcement

Leading companies in the offshore petroleum sector should likewise take responsibility for reshaping industry attitudes and practices to create an overall culture of safety. They should make a 

commitment to and investment in safer offshore operations by establishing an autonomous body 

focused solely on the core mission of achieving excellence in process safety. Key features of such a 

safety institute should include the following key features: 

FIGURE 2: Loss of Well Control Accidents
14 National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling

Leadership and Incentives. Industry CEOs and their boards of directors should provide leadership for 

the new organization and for their companies’ engagement with it. From rig hands to line managers, 

through top executive ranks to the board of directors, employees of cooperating companies should be 

engaged in system safety improvement and supportive of the role of the safety institute in each company’s continuous progress toward safety excellence. The safety institute’s board, drawn from the 

top ranks of the industry, should develop both positive and negative incentives (rewards and 

sanctions) to help all companies operating offshore overcome the natural enemies of safety: ignorance, arrogance, and complacency.

Auditing. One of the safety institute’s most important functions should be auditing. Audits should 

be designed as learning opportunities. The audit process and follow-up should be able to assess a 

company’s safety culture and its commitment to principles of system safety in practice, from design 

and operations to incident investigation and feedback.

FIGURE 3: Examples of Decisions that Increased Risk at Macondo While Potentially Saving Time

Decision

Was There A Less Risky 

Alternative Available?

Less Time Than 

Alternative? Decision-maker

Not Waiting for More 

Centralizers of Preferred Design Yes Saved Time BP on Shore

Not Waiting for Foam Stability Test 

Results and/or 

Redesigning Slurry

Yes Saved Time

Halliburton

(and Perhaps BP)

on Shore

Not Running Cement 

Evaluation Log Yes Saved Time BP on Shore

Using Spacer Made from 

Combined Lost Circulation 

Materials to Avoid Disposal Issues

Yes Saved Time BP on Shore

Displacing Mud from Riser Before 

Setting Surface Cement Plug Yes Unclear BP on Shore

Setting Surface Cement Plug 3,000 

Feet Below Mud Line in Seawater Yes Unclear BP on Shore

(Approved by MMS)

Not Installing Additional 

Physical Barriers During Temporary 

Abandonment Procedure

Yes Saved Time BP on Shore

Not Performing Further Well Integrity Diagnostics in Light of Troubling 

and Unexplained Negative Pressure 

Test Results

Yes Saved Time BP (and Perhaps 

Transocean) on Rig

Bypassing Pits and 

Conducting Other 

Simultaneous Operations

During Displacement

Yes Saved Time

Transocean 

(and Perhaps BP) 

on Rig
15 15

Regular audits would assess operations against plans and hazard assessments. Audits would also 

assess member companies’ job training, certification, and other key process safety metrics. Audit 

results would be used to provide feedback on performance to the companies, as well as to prepare 

case studies for shared learning and to contribute data that can be aggregated for analysis of safety 

trends.

Accountability. Audit results should be used to hold companies accountable for their performance to 

each other and to certain business counterparts, including joint-venture partners; suppliers; insurers; 

and through assurances by the companies’ directors, investors. 

The safety organization should institutionalize the member companies’ accountability to one another 

through annual meetings at which institute leaders would compare safety records, approaches, and 

best practices, offering awards for top performers. Accountability could be enhanced by a requirement that companies report their audit scores to their boards of directors and insurance companies. 

Transition to Risk-Based Regulation. The industry safety institute can facilitate a smooth transition 

to the risk-based regulatory regime recommended above. These recommendations are directed to the 

Department of the Interior; however, if implemented, they will appropriately shift responsibility to 

the regulated companies to demonstrate that they can maintain safe operations at all times. Meeting 

new regulations for safety and environmental protection that are at least as rigorous as the regulations in peer producing nations will result in consistently high quality system safety engineering and 

improved coordination between and among operators and contractors. The institute should drive 

continuous improvement in risk management practices, information sharing on accidents and near 

misses, and peer learning. It should drive improvement of safety and environmental standards and 

best practices by incorporating the highest standards achieved globally, including but not exclusively, 

those set by the American Petroleum Institute.

Governance. The safety institution should be of, by, and for the private sector. It will need to be 

created by the CEOs of leading companies and run by a director with unimpeachable integrity and a 

record of success in process safety that will be respected by its members and accepted by the public. 

For credibility, the new institute will need to be separate from API or any other advocacy or trade association so that it can maintain its independence and singular focus on safety, not compromised by 

competing goals or interests. 

The companies should provide sufficient resources to support a well-funded, well-staffed, highly professional team that will take a systems approach to risk management and process safety. The institute director and staff must identify crosscutting risk factors, including leadership, ethics, behavior, 

and engineering. 

Evaluation. No later than 3 months after the end of its first five years of operations, the industry 

safety institution should have itself audited by an independent third party that can evaluate how 

effective the organization has been in improving safety culture, safety practices, and process safety 

outcomes. 
16 National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling

Integration with Regulation. Depending upon a finding that the industry safety institution has contributed to an improvement in safety culture, safety practices, and safety performance, the regulator 

of offshore drilling might make participation in the industry organization mandatory for all lease 

holders and well permit applicants.

Recommendation

The oil and gas industry should establish a private organization to develop, adopt, and enforce standards 

of excellence to ensure continuous improvement in safety and operational integrity offshore.

The Need to Develop and Maintain Readily Deployable Resources for Rescue, 

Response, and Containment 

Industry’s responsibilities do not end with efforts to prevent blowouts like that at the Macondo 

well. They extend to efforts to contain any such incidents as quickly as possible and to mitigate 

the harm caused by spills through effective response efforts. Once a spill occurs, the government 

must be capable of overseeing source control efforts. But government depends upon the resources 

and expertise of private companies to contain a blown-out well and to respond to a massive oil spill. 

Both the industry and government were woefully unprepared to contain or respond to Macondo: 

all parties lacked adequate contingency planning, and none had invested sufficiently in research and 

development to improve containment or response technology. After the Macondo spill, two industry 

spill-containment initiatives emerged that build on ideas and technology deployed in response to the 

Macondo blowout and spill: the Marine Well Containment Company and the Helix Energy Solutions 

Group. These efforts are too new to judge. However, it is clear that the oil and gas industry needs to 

develop large-scale rescue, response, and containment capabilities—including equipment, procedures, 

and logistics—enabled by extensive training, including full-scale field exercises and international 

cooperation.

These new efforts cannot rely solely on engineering and technology solutions. A future accident 

will, by definition, be unplanned and unexpected; containing its results will require the coordination 

of many complex activities going on simultaneously. To be successful—and to gain the trust of the 

industry, government, insurers and the public—these new efforts by industry must include extensive 

planning and preparations; developing scenarios of new types of potential accidents; and conducting 

full-scale drills and training exercises that involve both people and equipment--and industry must do 

all of these things continually.

As next-generation equipment is developed, industry must ensure that its containment technology is 

compatible with its wells. For instance, it may be useful to consider design modifications to blowout 

preventer stacks that would allow for more expeditious hook-ups of injection and evacuation 

networks and hoses, reducing the capital costs and increasing the flexibility of the spill containment 

companies or consortia. Capping and containment options should also be developed in advance to 

contain blowouts from platform wells. 
17 17

Recommendation

The oil and gas industry should create and maintain readily deployable resources for rescue, response, 

and containment. Large-scale rescue, response, and containment capabilities need to be developed—

including equipment, procedures, and logistics—and enabled by extensive training, including full-scale 

field exercises. 

The Need for International Cooperation on Safety, Prevention, Rescue, Response, and 

Containment

The offshore oil and gas industry is global, with intensely localized activity and impacts. U.S. 

offshore production is concentrated now in the Gulf of Mexico, accounting for 96 percent of 

total federal offshore oil production in 2009 (and making up 29 percent of total U.S. crude 

oil production).3

 Gulf of Mexico producers include the integrated super major companies and 

independent producers with global operations, as well as independent companies that operate solely 

in the United States. Together they comprise the mainstay of the petroleum industry’s “business 

ecosystem” in the Gulf. All operators are served by drilling companies, cementers, and other specialist 

service companies, some strictly local and some global. 

No matter what the geographic reach of their operations, operating energy companies and 

contractors must manage their enterprises to achieve safety objectives and must continually 

assess the effectiveness of their management programs. The experience from offshore drilling and 

production activities, and knowledge of geologic and ocean conditions outside the U.S., can provide 

insights into potential risks and the best practices for managing them effectively. They should 

contribute to an international effort to develop and assess new indicators of major hazards and safety 

culture. Best standards should be identified and applied internationally—regardless of their origin. 

A new culture of safety must emerge throughout the industry, strong enough to overcome whatever 

local cultural features might keep safety from becoming the highest value. Because each offshore 

producing area offers only limited experience pertaining to deeper water and more complex geology, 

operators and contractors can and should learn important lessons from what happens elsewhere. 

To that end, peer audits across operators and major service companies might productively include 

international exchanges.

Recommendation

The U.S. oil and gas industry should cooperate internationally to ensure safety and preparedness in 

offshore production areas around the world. 
18 National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling

Safeguarding the Environment

The adequacy of the existing regulatory regime to assure the environmental safety of offshore drilling 

(as distinct from worker or occupational safety) has come under a great deal of scrutiny since the 

Deepwater Horizon incident. In its work on this question, the Commission focused on two issues: (1) 

the application of NEPA requirements to the offshore leasing process and (2) the need for better science 

and greater interagency consultation to improve decision-making concerning the management of 

offshore resources. 

The Need to Revise and Strengthen NEPA Policies and Practices in the Offshore Drilling 

Context

The Commission has reviewed the leasing and permitting processes that MMS followed in the Gulf of 

Mexico before the Deepwater Horizon incident. The results lead the Commission to conclude that the 

breakdown of the environmental review process for OCS activities was systemic and that Interior’s 

approach to the application of NEPA requirements in the offshore oil and gas context needs significant 

revision. In particular, the application of tiering, the use of categorical exclusions, the practice of areawide leasing, and the failure to develop formal NEPA guidance for the agency all contributed to this 

breakdown. 

Tiering. Under MMS, the NEPA process for offshore oil and gas leasing relied heavily on “tiering”—a 

practice under which a broad environmental impact statement was used to cover “general matters” 

across a large area, while issues specific to a particular site or smaller area were addressed through 

“subsequent narrower statements of environmental analyses.”4 Tiering was meant to encourage 

more thorough reviews at each subsequent stage of the offshore leasing process, and to avoid the 

duplication of general information that would have been covered in previous environmental reviews. 

As applied by MMS, however, tiering was not always consistent with its original purpose: instead, it 

created a system where deeper environmental analysis at more geographically targeted and advanced 

planning stages did not always take place. 

Categorical Exclusions. The Council on Environmental Quality’s implementing regulations 

for NEPA define “categorical exclusions” as “a category of actions which do not individually or 

cumulatively have a significant effect on the human environment . . . and for which, therefore, 

neither an environmental assessment nor an environmental impact statement is required.”5 MMS 

has historically applied categorical exclusions to both Exploration Plans and Development Operations 

Coordination Documents6 in the Gulf of Mexico. Although there are legitimate differences between 

the Gulf and other regions of the OCS, the basis for such a wide disparity in the use of categorical 

exclusions is questionable. And in the aftermath of the BP Deepwater Horizon spill, it is difficult to 

argue that deepwater drilling is an activity that does not present at least some potentially significant 

risk of harm to the environment of the Gulf. That is no doubt why, prompted by a comprehensive 

review of MMS’s use of categorical exclusions by the Council on Environmental Quality, Interior 

announced in August 2010 that it would restrict its use of categorical exclusions for offshore oil 

and gas development “to activities involving limited environmental risk,” while it undertakes a 

comprehensive review of its NEPA process.7
19 19

Area-Wide Leasing. OCS lease sales cover such large geographic areas that meaningful NEPA review 

is difficult. A decision to dramatically increase the size of lease sales—known as area-wide leasing—

was made over 20 years ago at the request of industry; it has necessitated environmental analyses 

of very large areas at the lease sale stage. For example, the Final Environmental Impact Statement 

for the 2007–2012 multi-lease sales in the Gulf of Mexico covered more than 87 million acres,8

while the Final Environmental Impact Statement for Chukchi Sea Lease Sale 193 covered about 

34 million acres.9 Given that 2008 lease sales in the Central Gulf of Mexico and the Chukchi Sea 

attracted almost $3.7 billion and almost $2.7 billion in high bids, respectively, it is appropriate to 

conduct environmental reviews on a finer geographic scale before private-sector commitments of this 

magnitude are made to purchase leases. 

NEPA Guidance. Though expected to prepare a handbook on NEPA requirements,10 MMS never 

developed formal NEPA guidance. As the Government Accountability Office noted in a review of the 

MMS Alaska Region Office: “The lack of a comprehensive NEPA guidance handbook, combined with 

high staff turnover, leaves the process for meeting NEPA requirements ill-defined for the analysts 

charged with developing NEPA documents.”11 BOEMRE is currently in the process of developing an 

internal NEPA guidance document—a step that should ensure a higher level of NEPA consistency and 

transparency across regions. 

Recommendation

The Council on Environmental Quality and the Department of the Interior should revise and strengthen the 

NEPA policies, practices, and procedures to improve the level of environmental analysis, transparency, 

and consistency at all stages of the OCS planning, leasing, exploration, and development process.

Interior should take the following steps to strengthen NEPA review of the offshore leasing process:

•	 The new office of leasing and environmental science should, in consultation with the Council 

on Environmental Quality, develop and make public a formal NEPA handbook within one year. 

The handbook should address the issue of tiering and provide guidelines for applying NEPA in a 

consistent, transparent, and appropriate manner to decisions affecting OCS oil and gas activities. 

•	 Interior should require, through this formal NEPA handbook, environmental impact statements 

for both the Five-Year Plan and for specific lease sales before plans for exploration, development, 

and production are approved in areas with complex geology, in ultra-deepwater, and in the 

Arctic and other frontier areas. Exploration plans and development and production plans in all 

other areas should be subject to NEPA review consistent with the Council on Environmental 

Quality’s implementing regulations.

•	 In less well-explored areas, Interior should reduce the size of lease sales so their geographic 

scope allows for a meaningful analysis of potential environmental impacts and identification 

of areas of ecological significance. A bidder on tracts in these areas and all other areas should be 
20 National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling

able to demonstrate, in addition to financial prequalification and ability to contain a maximum 

size spill, experience operating in similar environments and a record of safe, environmentally 

responsible operation—either in the United States or as verified by a peer regulator for another 

country. The distinction between the OCS and less well-explored areas in the Gulf should be 

defined by the new entity in charge of leasing and environmental science.

•	 Congress should amend the Outer Continental Shelf Lands Act to extend the 30-day deadline 

for approving exploration plans to 60 days. In addition, MMS should not consider such plans 

officially “submitted” until all of the required content, necessary environmental reviews, 

and other analyses are complete and adequate to provide a sound basis for decision-making. 

Exploration and development plans would be considered higher-level plans for purposes of 

agency review and approval under a reorganized regulatory structure. The office of safety 

and environment, separate from the office (or division) of leasing, would be responsible for 

permitting and approving well designs, drilling plans, and any structures. 

Sad testament to the spill, a sea turtle lies dead beside the black tide that took its life along East Grand Terre Island in Louisiana. As of November 2010, the carcasses of more 

than 600 of the endangered reptiles had been collected. Countless others undoubtedly perished.

Photo: Benjamin Lowy/Edit by Getty Images
21 21

FIGURE 4: Outer Continental Shelf Oil & Gas Leasing Exploration and Development Process

Four major steps guide the Outer Continental Shelf leasing and development process, from the decision to open an area to drilling, to the operations during oil and gas 

production. Before a lease is granted, Stage I establishes the “5-Year Program,” setting the schedule and possible locations for individual lease sales, and Stage II lays out 

the details by which each individual lease sale is conducted. After a company acquires a lease, Stage III plans and executes the oil and gas exploration activities, and Stage 

IV plans and executes the oil and gas development and production operations.

PRE-LEASE

POST-LEASE

EXPLORATION PLAN SUBMITTED

APPLICATION FOR PERMIT TO DRILL APPROVED | PERMITS GRANTED

EXPLORATION DRILLING STARTS

FIRST EXPLORATION WELL COMPLETED

NOTICE OF SALE

SALE

DEFINE SALE AREA

CALL FOR INFORMATION PUBLISHED

LEASES ISSUED

DELINEATION DRILLING

SOLICIT COMMENTS

PROPOSED PROGRAM DRAFT

5-YEAR PROGRAM ANNOUNCED

PROPOSED FINAL DRAFT

DRAFT PROPOSED PROGRAM PUBLISHED

DEVELOPMENT & PRODUCTION PLAN APPROVED

DEVELOPMENT & PRODUCTION PLAN

PRODUCTION WELL APPLICATION

• Stage I: Develop 5-Year Program

• Stage II: Planning for Specific Sale

• Stage III: Exploration Plan Approval

• Stage IV: Development & Production Plan Approval

FIRST OIL/GAS PRODUCTION
22 National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling

The Need for Greater Interagency Consultation

Under the Outer Continental Shelf Lands Act, it is up to the Secretary of the Interior to choose the 

proper balance between environmental protection and resource development. In making leasing 

decisions, the Secretary is required to solicit and consider suggestions from any interested agency, but 

he or she is not required to respond to the comments or accord them any particular weight. Similar 

issues arise at the individual lease sale stage and at the development and production plan stage. 

As a result, NOAA—the nation’s ocean agency with the most expertise in marine science and the 

management of living marine resources—effectively has the same limited role as the general public 

in the decisions on selecting where and when to lease portions of the OCS. A more robust and formal 

interagency consultation process is needed, with the goal of identifying precise areas that should be 

excluded from lease sales because of their high ecological importance or sensitivity. In addition to 

NOAA, other federal agencies that should be involved include the U.S. Fish and Wildlife Service and 

EPA.

Strengthened interagency coordination on offshore oil and gas activities will also be important 

in implementing the final recommendations of the Interagency Ocean Policy Task Force. These 

recommendations, adopted by President Obama by Executive Order on July 19, 2010, mandate a 

new national ocean policy that includes a framework for coastal and marine spatial planning, as well 

as a comprehensive, adaptive, integrated, transparent, ecosystem, and a science-based process for 

analyzing current and anticipated uses of ocean, coastal, and Great Lakes areas.12 Coastal and marine 

spatial planning applies a multi-sector approach in an effort to simultaneously reduce user conflicts 

and environmental impacts associated with ocean and coastal activities. Integrating five-year leasing 

plans and associated leasing decisions with the coastal and marine spatial planning process will be 

an important step toward assuring the sustainable use of ocean and coastal ecosystems. It could 

also reduce uncertainty for industry and provide greater predictability for potential users of different 

areas.

To ensure that offshore oil and gas development and production proceed in ways that minimize 

adverse impacts to the natural and human environment, decisions about these activities must be 

grounded in strong science. With respect to funding the necessary science, Outer Continental Shelf 

Lands Act requires Interior to study the “assessment and management of environmental impacts on 

the outer Continental Shelf and coastal areas that might be affected by oil and gas or other mineral 

developments . . .”13 Initiated in 1973, funding for the Environmental Studies Program at Interior 

peaked in 1976 at roughly $55 million, but had fallen to less than $20 million during most of the 

1990s and 2000s. It was only recently increased to approximately $30 million.14

Future research must be conducted in a systematic way that strategically enhances understanding 

of the impacts of oil and gas activities and provides regulators with the timely and scale-appropriate 

information required for sound decisions. Long-term studies that provide critical scientific 

information on OCS frontier or lesser known areas,*

 or systematic efforts to fill data gaps in areas 

with existing oil and gas activity, can help ensure that the selection of new leasing areas is informed 

by a full understanding of potential impacts on important ecological resources. In frontier areas, 

*The term “Frontier areas” include areas of the OCS that either have never been leased, or have not been leased in many years. It includes the Arctic (Beaufort and Chukchi Seas), the Atlantic and portions of 

the Pacific. 
23 23

it will be important to collect data on prevailing environmental conditions on a broad geographic 

scale, not just at individual lease sites. Additionally, post-development ecological monitoring is 

critical to understanding the impacts of oil and gas activities and to facilitate an adaptive approach 

to environmental management. Expanded coordination and cooperation on scientific research efforts 

with NOAA, the U.S. Geological Survey, and other agencies with relevant expertise can improve the 

quality of science available for OCS decision-making. Much of this research will also be relevant to 

other offshore activities, including the development of offshore wind resources. 

Recommendations

The Department of the Interior should reduce risk to the environment from OCS oil and gas activities by 

strengthening science and interagency consultations in the OCS oil and gas decision-making process. 

Congress, by enacting legislation, and the Department of the Interior, through its lease provision, should 

require the oil and gas industry to pay fees that support environmental science and regulatory review 

related to OCS oil and gas activities to enable cooperating agencies to carry out these responsibilities. 

(For further discussion of funding issues, see page 52—“The Need For Adequate Funding for Safety 

Oversight and Environmental Review.”)

Several actions are needed to implement these recommendations: 

•	 Congress should amend the Outer Continental Shelf Lands Act to provide NOAA with a 

formal consultative role during the development of five-year lease-plan and lease-sale stages. 

Consultation should occur no later than 60 days in advance of final Department of the 

Interior decisions on lease plans and sales. Specifically, NOAA should provide comments and 

recommendations concerning specific geographic areas that should be excluded from the 

leasing program or treated in a specific manner due to their ecological sensitivity or for other 

reasons relevant to NOAA’s ocean and coastal science expertise. Interior must adopt NOAA’s 

recommendations unless the Department determines that doing so would be inconsistent with 

important national policy interests. Moreover, Interior must publish in writing its rationale for 

rejecting NOAA’s recommendation. 

•	 The Department of Energy, NOAA, the U.S. Geological Survey, and other interested agencies 

should establish a joint research program to systematically collect critical scientific data, fill 

research gaps, and provide comprehensive, ecosystem-based scientific reviews of OCS areas 

that are currently or will likely be open for oil and gas leasing, and for offshore areas being 

considered for the siting of sources of renewable energy such as wind power. This program 

should build on existing data; should aim to supplement data collected from individual lease 

sites by industry to develop information for broader geographic areas; and should engage the 

non-federal scientific community through such mechanisms as the National Oceanographic 

Partnership Program. The research should outline and develop the necessary data for: (1) 

decision-making related to future leasing, exploration, and development; (2) measuring and 

monitoring impacts on ecological resources; and (3) providing necessary data for natural 

resource damage assessment should an oil spill occur.
24 National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling

•	 The National Academy of Sciences should regularly evaluate the government’s studies program 

in this area, preferably at five-year intervals. 

•	 Together with NOAA, the new division of environmental science under the direction of the Chief 

Scientist in the Office of Leasing and Environmental Science should develop an environmental 

monitoring program or set of protocols to be implemented by oil and gas companies at lease sites 

once exploration and development and production activities begin. Areas of ecological interest and 

areas where data gaps exist should be targeted for monitoring programs. In addition, monitoring 

should be conducted in a way that is independently verifiable and allows for comparisons across 

individual sites. Companies should provide all monitoring data to the federal government.

•	 NOAA and other federal agencies with appropriate expertise should be encouraged to act as 

cooperating agencies in NEPA reviews of offshore energy production activities, including 

exploration and development plans and drilling permit applications. Federal agencies that submit 

comments to Interior as part of a NEPA process should receive a written response indicating how 

the information was applied and if it was not included, why it was not included.

Strengthening Oil Spill Response, Planning, and Capacity

Just as the events of April 20, 2010 exposed a regulatory regime that had not kept up with the 

industry it was responsible for overseeing, the events that unfolded in subsequent weeks and months 

made it dismayingly clear that neither BP nor the federal government was prepared to deal with a 

spill of the magnitude and complexity of the Deepwater Horizon disaster. This section discusses the 

Commission’s recommendations in the area of oil spill response and planning. Broadly speaking they 

address three critical issues or gaps in the government’s existing response capacity: 1) the failure to 

plan effectively for a large-scale, difficult-to-contain spill in the deepwater environment or potentially 

in the Arctic; 2) the difficulty of coordinating with state and local government officials to deliver an 

effective response; and 3) a lack of information and understanding concerning the efficacy of specific 

response measures, such as dispersants and berms. 

The Need for Improved Oil Spill Response Planning

Oil spill response planning and analysis across the government needs to be overhauled in light of 

the lessons of the Deepwater Horizon blowout. A common interagency approach to analyzing 

oil spill risks and a common understanding of the issues and impacts involved are needed and 

must be consistently incorporated in environmental reviews, consultations, and authorizations. 

Environmental review and spill planning currently occurs at different levels within the government 

and industry, and these reviews and plans have not been sufficiently coordinated to ensure either 

searching review of industry plans or adequate preparation. 

One of the common threads that runs through many of the environmental review documents 

prepared for Gulf of Mexico oil and gas activities in the years leading up to the Deepwater Horizon 

spill was their reliance on MMS oil spill risk and impact analyses. To the extent that any of these 
25 25

documents contained errors or incomplete information, those gaps and errors carried through to 

subsequent environmental reviews by other agencies. 

The government’s spill-response planning occurs largely outside of MMS. The National Contingency 

Plan, mandated by the Clean Water Act, prescribes the nationwide response structure for spills of 

oil or releases of hazardous substances and creates a tiered planning process. Regional Response 

Teams include representation from federal agencies and state governments, and develop Regional 

Contingency Plans as well as preauthorization protocols for certain response strategies. The 

Area Committees, which develop Area Contingency Plans, similarly include federal and state 

representatives but are led by the Coast Guard. (The Coast Guard and EPA co-chair the regional 

teams.) The Area Contingency Plans are the most specific and the most relied-upon during the 

response to a spill.

While industry spill response plans must “be consistent with the requirements of the National 

Contingency Plan and Area Contingency Plans,”15 those industry plans presently require only the 

approval of BOEMRE.16 MMS regulations outline what needs to be included in these plans and direct 

the company to include information about a worst case scenario, including how to calculate the 

volume of oil, determine its trajectory, and a response strategy.17 As noted above, MMS oil spill risk 

and impacts modeling formed the basis of the required analysis. These response plans were not 

distributed to any federal agencies for review and comment outside of MMS. Additionally, only 

a small number of the plans developed for the Gulf were sent to the existing Office of Leasing and 

Environment for detailed environmental review within MMS or shared with other federal agencies 

with relevant expertise, such as NOAA or the Coast Guard. Finally, no provision was made for any 

form of public review or comment, and plans were not available to the public after they received 

MMS approval. 

 

Recommendation 

The Department of the Interior should create a rigorous, transparent, and meaningful oil spill risk analysis 

and planning process for the development and implementation of better oil spill response.

Several steps are needed to implement a rigorous, transparent, and meaningful oil spill risk analysis 

and planning process:

•	 Interior should review and revise its regulations and guidance for industry oil spill response 

plans in light of the lessons learned from the Deepwater Horizon experience. 

•	 A new process for reviewing spill response plans is needed. This process should ensure that all 

critical information and spill scenarios are included in the plans, including oil spill containment 

and control methods to ensure that operators can deliver the capabilities indicated in their 

response plans. In addition, the new entity within Interior that is charged with overseeing 

offshore safety and environmental protection will have to verify operator capability to perform 

according to the plans. 
26 National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling

•	 Interior must ensure that adequate technical expertise exists within the staff responsible for 

reviewing and approving spill response plans. 

•	 In addition to the Department of the Interior, other agencies with relevant scientific and 

operational expertise should play a role in evaluating spill response plans to verify that operators 

can conduct the response and containment operations detailed in their plans. Specifically, oil 

spill response plans, including source-control measures, should be subject to interagency review 

and approval by the Coast Guard, EPA, and NOAA. Other parts of the federal government, such 

as Department of Energy national laboratories that possess relevant scientific expertise, could 

be consulted. This would help remedy the past failure to integrate multiple area, regional, and 

industry response plans, by involving the agencies with primary responsibility for government 

spill response planning in oversight of industry planning. Plans should also be made available for 

a public comment period prior to final approval and response plans should be made available to 

the public following their approval. 

•	 Interior should incorporate the “worst-case scenario” calculations from industry oil spill 

response plans into NEPA documents and other environmental analyses or reviews. This does not 

mean that Interior would be required to conduct a “worst-case scenario analysis” under NEPA, 

but it does mean that Interior would use industry’s worst-case estimates for potential oil spill 

situations in its environmental analyses.

The Need for a New Approach to Handling Spills of National Significance

The Macondo well blowout caused the largest accidental oil spill in history—one that presented an 

unprecedented challenge to the response capability of both government and industry. Clearly, neither 

was adequately equipped: In fact it was quickly evident that even the response capacity indicated in 

industry’s spill response plans did not exist. Though the National Contingency Plan permitted the 

government to designate the spill as one of “national significance,” this designation did not trigger 

any procedures other than allowing the federal government to name a National Incident Commander.

The spill’s magnitude calls into question whether the National Contingency Plan establishes an 

appropriate relationship between the federal government and the responsible party, as the public 

demanded in the weeks and months following the Deepwater Horizon spill that the government 

demonstrate control of the response. The responsible party that caused the spill is clearly legally 

responsible for containing the spill and mitigating its harmful consequences. The federal government, 

not the responsible party, must be in charge of those efforts. As this spill demonstrated, the 

government unfortunately lacked both the expertise and the capacity to oversee aspects of the 

response at the outset of the spill—particularly the effort to control the well. Only as the full scope 

of the disaster unfolded and the government gathered and focused its resources from a variety of 

agencies was the government ultimately able to take charge. 
27 27

Recommendation 

EPA and the Coast Guard should establish distinct plans and procedures for responding to a “Spill of 

National Significance.”

Under existing law, EPA is the federal agency responsible for developing a National Contingency 

Plan, which is the federal government’s blueprint for responding to both oil spills and hazardous 

substances releases. In light of the Deepwater Horizon oil spill, EPA should amend or issue new 

guidance on the National Contingency Plan to add distinct plans and procedures for Spills of National 

Significance. In those amendments, EPA should:

•	 Increase government oversight of the responsible party, based on the National Contingency 

Plan’s requirement that the government “direct” the response where a spill poses a substantial 

threat to public health or welfare.18 

•	 Augment the National Response Team and Regional Response Team structures to establish 

additional frameworks for providing interagency scientific and policymaking expertise during 

a spill. Further, EPA, NOAA, and the Coast Guard should develop procedures to facilitate review 

and input from the scientific community—for example, by encouraging disclosure of underlying 

methodologies and data.

•	 Create a communications protocol that accounts for participation by high-level officials who 

may be less familiar with the National Contingency Plan structure and create a communications 

center within the National Incident Command—separate from the joint information center 

established in partnership with the responsible party—to help transmit consistent and complete 

information to the public.

The Need to Strengthen State and Local Involvement

The response to the Deepwater Horizon disaster showed that state and local elected officials had 

not been adequately involved in oil spill contingency planning, though career responders in state 

government had participated extensively in such planning. Before the Deepwater Horizon spill, state 

and local elected officials were not regular participants in Area Committee meetings or familiar 

with local Area Contingency Plans. The Coast Guard and Area Committee member agencies had 

done little to reach out to state and local elected officials. These state and local officials were more 

familiar with hurricane response under the Stafford Act, in which the federal government provides 

funding and supports state and local governments, but does not control emergency response 

operations. As a result, state and local political officials had incorrect expectations about their roles. 

They understandably wanted to be responsive to citizens who were concerned about the spill and, 

regardless of the official response plans, sought state and local governmental assistance. 

Unfamiliarity with, and lack of trust in, the federal response manifested itself in competing state 

structures and attempts to control response operations that undercut the efficiency of the response 

overall. Federal responders improved their relationship with state and local officials as the response 

progressed—but had better coordination and communication existed sooner, that relationship 
28 National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling

could have been more productive in the early days of the spill response. Moreover, increased citizen 

involvement before a spill occurs could create better mechanisms to utilize local citizens in response 

efforts, provide an additional layer of review to prevent industry and government complacency, and 

increase public trust in response operations.

Recommendation 

EPA and the Coast Guard should bolster state and local involvement in oil spill contingency planning 

and training and create a mechanism for local involvement in spill planning and response similar to the 

Regional Citizens’ Advisory Councils mandated by the Oil Pollution Act of 1990.

EPA and the Coast Guard, as the chair and vice-chair of the National Response Team, should issue 

policies and guidance for increased state and local involvement in oil spill contingency planning and 

training. This guidance should provide protocols to:

•	 Include local officials from areas at high risk for oil spills in training exercises.

•	 Establish liaisons between the Unified Command and affected local communities at the outset of 

a spill response. 

•	 Add a local on-scene coordinator position to the Unified Command structure.

•	 Provide additional clarification and guidance to federal, state, and local officials on the differences 

between emergency response under the Stafford Act and under the National Contingency Plan.

In addition, a mechanism should be created for ongoing local involvement in spill planning and 

response in the Gulf. In the Oil Pollution Act of 1990, Congress mandated citizens’ councils for Prince 

William Sound and Cook Inlet. In the Gulf, such a council should broadly represent the citizens’ 

interests in the area, such as fishing and tourism, and possibly include representation from oil and 

gas workers as ex-officio, non-voting members. The citizens’ group could be funded by Gulf lease 

holders. The Commission further recommends that federal regulators be required to consult with 

the council on relevant issues, that operators provide the council with access to records and other 

information, and that entities (either in industry or in government) declining the council’s advice 

submit their reasons to the council in writing.

The Need for Increased Research and Development to Improve Spill Response 

The technology available for cleaning up oil spills has improved only incrementally since 1990. 

Federal research and development programs in this area are underfunded: In fact, Congress has 

never appropriated even half the full amount authorized by the Oil Pollution Act of 1990 for oil 

spill research and development. In addition, the major oil companies have committed minimal 

resources to in-house research and development related to spill response technology. Oil spill 

removal organizations are underfunded in general and dedicate few if any resources to research and 

development. Though some commentators and industry representatives have argued that more 
29 29

research and development would not have allowed for a more effective spill response because no 

technology will ever collect more than a fraction of spilled oil, the fact is that neither industry 

nor government has made significant investments in improving the menu of response options or 

significantly improved their effectiveness. Thus any argument about the limited potential of response 

technology is speculative. After the Deepwater Horizon spill, agencies, industry, and entrepreneurs 

focused attention on developing new response technologies for the first time in 20 years, and a 

number of promising options emerged within a relatively short period of time—including beachcleaning machines, subsea dispersant delivery systems, and new in situ burning techniques. 

Recommendation

Congress should provide mandatory funding for oil spill response research and development and provide 

incentives for private-sector research and development. 

Specifically, Congress should provide mandatory funding (i.e. funding not subject to the annual 

appropriations process) at a level equal to or greater than the amount authorized by the Oil Pollution 

Act of 1990 to increase federal funding for oil spill response research by agencies such as Interior, 

the Coast Guard, EPA, and NOAA—including NOAA’s Office of Response and Restoration. To be sure, 

such mandatory appropriations are rarely done, but they are not unprecedented. Congress has 

included such a provision when, as here, Congress seeks to target appropriations to support a discrete 

category of activities where Congress perceives that the need is high and the concern is great that the 

desired activity will otherwise go unfunded over a sustained period of time. For instance, Congress 

has provided for an annual mandatory appropriation of $100 million for emergency highway 

repairs for those damaged by natural disasters or catastrophic failures.19 Congress also provided 

for mandatory funding for five years for several farm conservation programs in the Farm Security 

and Rural Investment Act of 2002.20 By similarly removing oil spill research and development 

funding from the ordinary appropriations process, Congress can avoid the experience that followed 

the Exxon Valdez spill, when support for response research and development decreased over time. 

Moreover, Congress can comply with its pay-as-you-go rules by supporting increased research and 

development funding with a fee on offshore lessees. 

An advisory board, made up of experts from relevant offices of the Department of the Interior, U.S. 

Geological Survey, Department of Energy, EPA, and NOAA, as well as from professional societies, 

academia, industry, and non-governmental organizations, should be established to develop a research 

agenda and roadmap. In addition, to promote increased research investments by industry, the Coast 

Guard should revise its Effective Daily Recovery Capacity regulations to encourage the development 

and use of more efficient oil recovery equipment. At the same time, EPA should revise its oiled-water 

discharge regulations and streamline its permitting process for open-water testing. Finally, Congress 

and the Administration should encourage private investment in response technology more broadly, 

including through public-private partnerships and a tax credit for research and development in this 

area. 
30 National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling

Dirty job, a cleanup crew bags oil-absorbent polypropylene “pom-poms” near a bird rookery in Louisiana. Containment booms snake past their feet. By August, cleanup efforts 

had generated some 40,000 tons of solid waste. Overall response to the huge spill posed unprecedented challenges to both government and industry. 

Photo: Joel Sartore/Photo courtesy of National Geographic

The Need for New Regulations to Govern the Use of Dispersants

The decision to use dispersants involves difficult tradeoffs: If dispersants are effective, less oil will 

reach shorelines and fragile marsh environments, but more dispersed oil will be spread throughout 

the water column. Prior to the Deepwater Horizon incident, the federal government had not adequately 

planned for the use of dispersants to address such a large and sustained oil spill, and did not have 

sufficient research on the long-term effects of dispersants and dispersed oil to guide its decisionmaking. Officials had to make decisions about dispersant use without important relevant information 

or the time to gather such information. Under the circumstances, however, the Commission believes 

that the National Incident Commander, Federal On-Scene Coordinators, and EPA Administrator made 

reasonable decisions regarding the use of dispersants at the surface and in the subsea environment. 

Recommendation 

EPA should update and periodically review its dispersant testing protocols for product listing or preapproval, and modify the pre-approval process to include temporal duration, spatial reach, and volume of 

the spill.
31 31

EPA should update its dispersant testing protocols and require more comprehensive testing prior to 

listing or pre-approving dispersant products. The Coast Guard and EPA, as co-chairs of the Regional 

Response Teams and leaders of the Area Contingency Plan drafting process, should modify preapprovals of dispersant use under the National Contingency Plan to establish procedures for further 

consultation based on the temporal duration, spatial reach, or volume of the spill and volume of 

dispersants that responders are seeking to apply. EPA and NOAA should conduct and encourage 

further research on dispersants, including research on the impacts of high-volume and subsea use of 

dispersants, the long-term fate and effects of dispersants and dispersed oil, and the development of 

less toxic dispersants.

The Need to Re-evaluate the Use of Offshore Barrier Berms in Spill Response

Offshore barrier berms generally do not constitute a viable spill response measure for several reasons. 

These reasons include the time and cost of construction, and the highly variable and dynamic marine 

environment that limit effectiveness and pose the potential for negative environmental impacts 

resulting from dredging and filling. Thus, for instance, barrier berms constructed off the shores 

of Louisiana in response to the Deepwater Horizon spill could not be considered a success. Only a 

fraction of the project (approximately 6 percent) was completed by the time the well was capped, 

and no estimate of the amount of oil trapped by the berms is much more than 1,000 total barrels. 

In fact, the Louisiana berms project stands out as the most expensive and perhaps most controversial 

response measure deployed to fight the Deepwater Horizon spill. The decision to approve the project as 

one of the oil spill response techniques to be funded by the responsible party was based primarily on 

the demands of local and regional interests rather than on a scientific assessment of its likely efficacy. 

Recommendation 

The Coast Guard should issue guidance to establish that offshore barrier berms and similar dredged 

barriers generally will not be authorized as an oil spill response measure in the National Contingency Plan 

or any Area Contingency Plan. 

Advancing Well-Containment Capabilities

The most obvious, immediately consequential, and plainly frustrating shortcoming of the oil spill 

response set in motion by the events of April 20, 2010 was the simple inability—of BP, of the federal 

government, or of any other potential intervener—to contain the flow of oil from the damaged 

Macondo well. 

Clearly, improving the technologies and methods available to cap or control a failed well in the 

extreme conditions thousands of feet below the sea is critical to restoring the public’s confidence 

that deepwater oil and gas production can continue, and even expand into new areas, in a manner 

that does not pose unacceptable risks of another disaster. Better technology and methods are also 

needed to gather accurate information in the event of an accident or failure. This section discusses 

the Commission’s recommendations for advancing well-containment capabilities in the wake of the 

Macondo well blowout. 
32 National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling

The Need for Government to Develop Greater Source-Control Expertise

At the time of the Macondo well blowout on April 20, the U.S. government was unprepared to 

oversee a deepwater source-control effort. Though the public expected federal authorities to take 

charge once the accident occurred, neither MMS nor the Coast Guard had the expertise or resources 

to supervise BP’s well-containment efforts. Once the Secretary of Energy’s science team, the U.S. 

Geological Survey, the national laboratories, and other sources of scientific expertise became involved, 

the government was able to substantively supervise BP’s decision-making, forcing the company 

to fully consider contingencies and justify its chosen path. The government’s oversight effort was 

assisted by outside industry experts, although their involvement also raised some concerns (about 

conflicts of interest, sharing of proprietary information, and potential liability for participants) that 

were never resolved.

Recommendation

The National Response Team should develop and maintain expertise within the Federal 

government to oversee source-control efforts. 

The National Response Team should create an interagency group—including representation 

from the Department of the Interior, Coast Guard, and the Department of Energy and its 

national laboratories—to develop and maintain expertise in source control, potentially 

through public-private partnerships. The proposed Ocean Energy Safety Institute at the 

Department of the Interior could play a role in developing such expertise.

In addition, the EPA should amend the National Contingency Plan to:

•	 Define and institutionalize the role of federal agencies and the national laboratories that possess 

relevant scientific expertise in source-control.

•	 Create a mechanism for involving outside industry experts in source-control design and 

oversight.

The Need to Strengthen Industry’s Spill Preparedness

Beyond attempting to close the blowout preventer stack, no proven options for rapid source 

control in deepwater existed when the blowout occurred. BP’s Initial Exploration Plan for 

the area that included the Macondo prospect identified only one response option by name: 

a relief well, which would take months to drill. Although BP was able to develop new 

source-control technologies in a compressed timeframe, the containment effort would have 

benefited from prior preparation and contingency planning.

Recommendation 

The Department of the Interior should require offshore operators to provide detailed plans for 

source control as part of their oil spill response plans and applications for permits to drill.
33 33

Consistent with the enhanced planning process described above, oil spill response plans 

should be required to include detailed plans for source control. These plans should 

demonstrate that an operator’s containment technology is immediately deployable 

and effective. (BOEMRE has recently issued a Notice to Lessees requiring operators to 

demonstrate, as part of the spill response planning process, that they have “access to 

and can deploy surface and subsea containment resources that would be adequate to 

promptly respond to a blowout or other loss of well control.”21 In enforcing this Notice, 

BOEMRE must ensure that operators provide detailed descriptions of their technology and 

demonstrate that it is deployable and effective.) 

In applications for permits to drill, the Department of the Interior should require operators to 

provide a specific source-control analysis for each well. The analysis must demonstrate that an 

operator’s containment technology is compatible with the well. (The Department of the Interior 

could implement this requirement through amendments to existing regulations22 or through a Notice 

to Lessees.23 The latter option could be implemented more quickly, though the former might be more 

permanent.)

As with oil spill response plans, source-control plans should be reviewed and approved by agencies 

with relevant expertise, including the Department of the Interior and the Coast Guard. 

The Need for Improved Capability to Develop Accurate Flow Rate Estimates 

Early flow rate estimates were highly variable and difficult to determine accurately. However, the 

understated estimates of the amount of oil spilling from the Macondo well appear to have impeded 

planning for and analysis of source-control efforts like the cofferdam and especially the top kill. 

U.S. Geological Survey Director Marcia McNutt stated that if a similar blowout occurs in the future, 

the government will be able to quickly and reliably estimate oil flow using the oceanographic 

techniques that eventually provided an accurate estimate of the flow rate from the Macondo well.24

Recommendation 

The National Response Team should develop and maintain expertise within the federal government to 

obtain accurate estimates of flow rate or spill volume early in a source-control effort. 

The National Response Team should create an interagency group—including representation from the 

Department of the Interior, the Coast Guard, the national laboratories, and NOAA—to develop and 

maintain expertise in estimating flow rates and spill volumes, potentially through consultation with 

outside scientists.

In addition, EPA should amend the National Contingency Plan to create a protocol for the 

government to obtain accurate estimates of flow rate or spill volume from the outset of a spill. This 

protocol should require the responsible party to provide the government with all data necessary to 

estimate flow rate or spill volume.
34 National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling

Oil spews unchecked from the Deepwater Horizon’s severed riser pipe in this video frame taken May 26. When the rig sank, the riser broke off, settling on the sea floor. 

According to government estimates, the Macondo well ultimately disgorged some 4.1 million barrels of crude oil into the Gulf of Mexico.

Photo: © BP p.l.c.

The Need for a More Robust Well Design and Approval Process

Among the problems that complicated the Macondo well-containment effort was a lack of reliable 

diagnostic tools. The Deepwater Horizon blowout preventer had one pressure gauge accurate to plus 

or minus 400 pounds per square inch. This meant BP and the government could not get accurate 

pressure readings, which in turn hampered their ability to estimate the oil flow rate, undertake 

reservoir modeling, and plan for source control operations. In addition, the blowout preventer lacked 

a means of indicating whether and to what extent its rams and annular preventers had closed. 

Without such instruments, the government and BP expended significant resources on basic datacollection such as obtaining gamma-ray images of the blowout preventer and adding pressure sensors 

to the top hat after it was deployed. Meanwhile, the presence of rupture disks in the Macondo well’s 

16-inch casing led to concerns about well integrity that further complicated the source-control effort. 

BP had not considered the impact of these disks on post-blowout containment when it designed the 

well.25
35 35

Recommendation 

The Department of the Interior should require offshore operators seeking its approval of 

proposed well design to demonstrate that: 

•	 Well components, including blowout preventer stacks, are equipped with sensors or other tools 

to obtain accurate diagnostic information—for example, regarding pressures and the position of 

blowout preventer rams.

•	 Wells are designed to mitigate risks to well integrity during post-blowout containment efforts.

Overcoming the Impacts of the Deepwater Horizon Spill and Restoring the 

Gulf

Even before the Macondo well was finally capped and oil stopped flowing, major efforts were 

underway to mitigate and begin to repair the environmental and economic harm caused by the spill. 

Those efforts are continuing—and likely will for years. Nevertheless, any effort to draw lessons 

learned from the Deepwater Horizon spill for the purpose of developing options (as the Commission’s 

charter states) to “guard against, and mitigate the impact of, any oil spills associated with offshore 

drilling in the future” would necessarily be incomplete without an early appraisal of progress 

toward longer-term restoration in the Gulf. This section describes the actions and initiatives that 

have been launched to assess and overcome the impacts of the spill, and presents the Commission’s 

recommendations for steps that should be taken to ensure the following three goals are met:

•	 The environment and the economy of the Gulf region recovers as completely and as quickly as 

possible, not only from the direct impacts of the spill, but from the decades of degradation that 

preceded it; 

•	 The people of the Gulf are fairly compensated for the direct and indirect impacts of the spill; and

•	 Lessons learned from restoration efforts in the Gulf—including advances in scientific 

understanding, data collection, mitigation technologies and techniques, planning, and 

institutional coordination—result in enhanced capacity to remedy the impacts of future offshore 

oil spills and better manage the myriad economic, environmental, and social interests that must 

be balanced in the Gulf and other critical offshore areas.

The Need for Improved Understanding of Oil Spill Impacts, Particularly in the Deepwater 

Environment

A sophisticated understanding of the full range of impacts from a large-scale oil spill is critical 

to effective recovery and restoration efforts. Because, however, the concentration and toxicity of 

oil dissipate rapidly within the first few days to weeks of exposure to the elements, the window 

of opportunity to collect data in the aftermath of an accident is narrow. For this reason, advance 

planning and rapid response mechanisms, are essential to capitalize on research opportunities. 
36 National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling

Independent scientists, many of who are long-time scholars of the Gulf ecosystem or have 

unique capabilities, were eager to study the spill and contribute to the injury assessment. 

However, the independent science community’s ability to participate early on was hampered 

by a lack of timely access to the response zone. This had the effect of diminishing what was 

learned from the spill. 

Recommendation

The Coast Guard, through the Federal On-Scene Coordinator, should provide scientists with timely access 

to the response zone so that they can conduct independent scientific research during an oil spill response 

and long-term monitoring in the future. 

The National Science Foundation, in consultation with the new National Ocean Council, 

should expand on its RAPID grant program to create a framework under which independent 

science during a spill can be coordinated, with an emphasis on data-sharing, communication, 

and timely access within the response zone. By ensuring that independent scientists 

can receive expedited funding after an oil spill, government will gain a more complete 

understanding of spill-related environmental impacts. A demonstrated commitment to 

independent science will also serve to bolster public confidence and trust. The rush to study 

the impacts of the Deepwater Horizon spill put a strain on existing scientific resources in the 

Gulf. Independent, industry, and government scientists all wrangled for funding, equipment 

and vessels, often duplicating efforts in the process. A program that effectively coordinates 

research initiatives and resources will provide a significant added value to the scientific 

community under exigent conditions. 

The Need for Fair, Transparent Compensatory Restoration Based on Natural Resource 

Damage Assessments

The Deepwater Horizon spill caused substantial damage to natural resources and habitats across the 

Gulf coast and in the deepwater offshore environment. Damages to natural resources are formally 

assessed subject to regulations established under the Natural Resource Damage Assessment provisions 

of the Oil Pollution Act. The Act requires that the public be compensated for injury to and lost use 

of public resources. The regulation provides that compensation should be “in-place” and “in-kind” 

wherever possible, thereby favoring restoration measures with a connection to oil spill impacts. The 

Deepwater Horizon spill is unprecedented in that five Gulf States were affected, each with its own 

restoration agenda, even though most of the damage occurred in Louisiana. The damage offshore is 

unprecedented and unknown. The Trustees* responsible for the damage assessment are under pressure 

to approve projects with an “equitable” (i.e., each state receives an equal portion) allocation of 

resources that may not be entirely consonant with the “in-place, in-kind” requirement. 

* The Natural Resource Damage Assessment regulation provides for the designation of affected state, federal, and tribal Trustees to conduct the damage assessment of natural resources, achieve agreement on 

restoration goals, and design and implement restoration projects to meet those goals. In this case, the Trustees comprise designated federal and state officials who are encouraged to work together and achieve 

consensus on restoration goals and projects though a Trustee Council. While the regulation supports cooperation, it does not explicitly require consensus by the Trustees. If certain Trustees disagree with the 

direction of the Natural Resource Damage Assessment process, they are free to break away from the Council and seek reimbursement for natural resource damages on their own. 
37 37

FIGURE 5: Assessment Categories for Natural Resource Damage Assessment

Another challenge for the Trustees is assessing and providing compensatory restoration for the 

potentially significant marine and deepwater impacts associated with this spill. Historically, most 

applications of the Natural Resource Damage Assessment process have focused on coastal restoration, 

but the Macondo well, which spilled oil 5,000 feet below the surface, may have damaged organisms 

in the water column or on the sea floor for which there should be compensation as well.

Recommendation

The Trustees for Natural Resources should ensure that compensatory restoration under the Natural 

Resource Damage Assessment process is transparent and appropriate.

Restoration decisions must be transparent, appropriate, and apolitical. The Trustees should appoint 

an independent scientific auditor to ensure that projects are authorized on the basis of their ability to 

mitigate actual damages caused by the spill, with special care taken to assess and compensate poorly 

understood marine impacts. Further, any potential settlement agreement between the responsible 

party and the Trustees should provide for long-term monitoring of affected resources for a period of 

Wellhead

BIRDS

 • Aerial surveys

 • Ground surveys

 • Nearshore boat

 surveys 

 • Offshore boat 

 surveys

 • Radio telemetry

TERRESTRIAL AND

AQUATIC SPECIES

 • Ground surveys

 • Observations of the 

 quality of habitat

HUMAN USE

 • Aerial surveys 

 • Ground surveys 

WATER COLUMN

AND SEDIMENTS

 • Water quality surveys 

 • Transect surveys to 

 detect submerged oil

 • Oil plume modeling 

 • Sediment sampling

AQUATIC

VEGETATION

 • Aerial surveys 

 • Field surveys in 

 large beds of 

 aquatic vegetation

SHORELINES

 • Aerial surveys 

 • Ground surveys

 • Observations of the

 quality of habitat 

 • Measurements of 

 subsurface oil near the 

 shore 

FISHERIES

 • Plankton surveys

 • Invertebrate surveys

 • Adult fish surveys

 • Larval fish surveys

SHELLFISH

 • Oyster surveys

 • Tissue and

 sediment 

 sampling

 • Mussel collection

 • Shrimp collection

TURTLES AND

MARINE MAMMALS

 • Aerial surveys 

 • Tissue sampling 

 • Acoustic

 monitoring

 • Satellite tagging

CORALS

 • Coral surveys

 • Tissue collections

 • Contaminant 

 surveys

This figure represents the various natural resource categories being assessed as part of the Deepwater Horizon Natural Resource Damage Assessment. Such an 

assessment, which always follows an oil spill, is used to make the public whole for ecological damages caused by a spill. This graphic illustrates the three-dimensional 

challenges that an assessment of a deep sea blowout presents. 

Source: NOAA (Adapted)
38 National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling

at least three to five years, as well as “enhancement”* beyond the baseline. By hewing closely to the 

“in-place” and “in-kind” principles that underpin Natural Resource Damage Assessment regulations, 

Trustees will help ensure that injured public resources, and the communities that rely on them, are 

made whole to the fullest extent possible, regardless of state and federal boundaries. A focus on ocean 

impacts will provide an invaluable opportunity—missed during the Ixtoc spill of 1979—to assess and 

remediate damage to marine ecosystems after an oil spill.

The Need to Address Human Health Impacts, Especially Among Response Workers and 

in Affected Communities

The National Contingency Plan overlooks the need to respond to widespread concerns about human 

health impacts. For smaller oil spills, the response effort is generally carried out by trained oil spill 

response technicians, but given the scale of the response to the Deepwater Horizon spill and the need to 

enlist thousands of previously untrained individuals to clean the waters and coastline, many response 

workers were not screened for pre-existing conditions. This lack of basic medical information, which 

could have been collected if a short medical questionnaire had been distributed, limits the ability to 

draw accurate conclusions regarding long-term physical health impacts. Additionally, residents of 

coastal communities may believe that they suffered adverse health consequences resulting from both 

chemical exposure from the spill itself and the mental stress occasioned by the spill’s assault on their 

livelihoods.

Adequate funding and resources were not in place to deal with claims of physical and mental illness 

among Gulf coast residents resulting from, or exacerbated by, the spill, response actions, and the 

resulting impacts. Whether allegations that the spill created health problems for responders and Gulf 

Coast residents are warranted does not change the perception among some that government has not 

been responsive to health concerns.

The National Contingency Plan contains no specific guidance for responding to public health impacts 

of an oil spill or hazardous substances release. By contrast, the National Response Framework—

which provides the structure for a national response to terrorist attacks, major disasters, and other 

kinds of emergencies—incorporates a protocol for responding to public health exigencies. 

Recommendation

EPA should develop distinct plans and procedures to address human health impacts during a Spill of 

National Significance.

EPA should amend the National Contingency Plan to add distinct procedures to address human 

health impacts during a Spill of National Significance. Spills of this magnitude necessarily require a 

significant clean-up effort, potentially exposing workers to toxic compounds in oil and dispersants. 

Additionally, residents of coastal communities may suffer adverse health consequences due to both

* “Enhancement” is a term coined during settlement negotiations after the Exxon Valdez oil spill of 1989. It requires the responsible party to fund restoration beyond that needed merely to return injured 

resources to baseline conditions. Rather, any funding should be sufficient to ensure that restoration leaves the affected system better off than before a spill. 
39 39

chemical exposure from the spill itself, and the mental stress occasioned by the assault on their 

livelihoods or way of life. With respect to worker health and safety, existing authorities26 should be 

strengthened to ensure consistent application of medical screening and surveillance procedures for 

both formal response contractors and ad hoc citizen responders. Regarding public health, a medical 

services protocol similar to the Public Health and Medical Services Annex of the National Response 

Framework should be incorporated to ensure emergency medical care, timely dissemination of public 

health information,27 and medical monitoring and surveillance.28 

Furthermore, a public health protocol requiring the collection of adequate baseline data and longterm monitoring would allow researchers to assess the human dimensions of oil spills with greater 

accuracy. Without sound data on the causal or correlative relationships between chemical (i.e., 

oil and dispersants) exposure and human health, a number of response methods may be used 

inappropriately—including the provision of appropriate protective gear for cleanup workers.29 

A lone beachgoer encounters bands of oil along Alabama’s Orange Beach. Though wind and currents helped keep most of the spilled oil offshore, all told some 650 miles of 

Gulf Coast habitat were oiled to one degree or another—Louisiana was hardest hit—impacting ecosystems, the economy, and human health.

Photo: Tyrone Turner of National Geographic
40 National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling

The Need to Restore Consumer Confidence 

Images of spewing oil and oiled beaches in newspapers and on television set the stage for public 

concern regarding the safety of Gulf seafood. Additional factors contributed to the lingering 

impression that the public could not trust government assurances that the seafood was safe: 

the unprecedented volumes of dispersants used, confusion over the flow rate and fate of the oil, 

frustration about the government’s relationship with BP in spill cleanup, and lawsuits filed by 

fishermen contesting the government’s assurance of seafood safety. The economic blow to the Gulf 

region associated with this loss of consumer confidence is sizable. BP gave Louisiana and Florida $68 

million for seafood testing and marketing, as well as money to assess impacts on tourism and fund 

promotional activities. As of early December, BP was considering a similar request from Alabama.

In future spills, however, there is no guarantee that a responsible party will have the means or the 

inclination to compensate such losses. Such indirect financial harms are currently not compensable 

under the Oil Pollution Act. Nevertheless, losses in consumer confidence are real and Congress, 

federal agencies, and responsible parties should consider ways to restore consumer confidence in the 

aftermath of a Spill of National Significance. 

Recommendation

Congress, federal agencies, and responsible parties should take steps to restore consumer confidence in 

the aftermath of a Spill of National Significance.

The Need for a Long-Term Restoration Effort that Is Well Funded, Scientifically 

Grounded, and Responsive to Regional Needs and Public Input

A lack of sustained and predictable funding, together with failed project coordination and longterm planning, have resulted in incomplete and often ineffective efforts to restore the Gulf’s natural 

environment. Currently, no funding source exists to support regional restoration efforts. Estimates 

of the cost of Gulf restoration vary widely, but according to testimony before the Commission, fully 

restoring the Gulf will require $15 billion–$20 billion, or a minimum of $500 million per year, over 

30 years. While a number of different sources currently provide funding to individual states for 

restoration, none of these sources provides funds for Gulf-wide coastal and marine restoration and 

none is sufficient to support the sustained effort required. Most policymakers agree that without a 

reliable source of long-term funding, it will be impossible to achieve restoration in the Gulf. 

Several Gulf States and the federal government have filed are expected to file suit against BP and 

other companies involved in the spill, which will likely create opportunities to direct new restoration 

funds to the region. In some cases, congressional action will be required to ensure that funds are 

directed to this purpose. Meanwhile, Congress has already begun considering other potential funding 

sources, including a higher per-barrel tax on oil production, increased royalties or fees, and direct 

appropriations for Gulf-wide restoration through the normal federal budget process. Although 

many of these proposals face political hurdles, the fact remains that resources are needed if progress 
41 41

on coastal restoration is to continue. Inaction is a prescription for further degradation: since many 

Gulf ecosystems were already fragile and deteriorating before the spill, maintaining the status quo 

amounts to accepting their continued decline, with the longer-term risks and vulnerabilities this 

entails. 

In order for funding to be most efficiently directed at long-term restoration, a decision-making body 

is needed that has authority to set binding priorities and criteria for project funding. The Gulf Coast 

Ecosystem Restoration Task Force, is now in place; it was recommended by a September 2010 report 

on restoration from Secretary of the Navy Ray Mabus to the President and subsequently established 

by Presidential Executive Order.30 According to the language of the Executive Order, the job of the 

Task Force is to begin coordinating the different restoration projects being undertaken by various 

jurisdictions in the Gulf, coordinating related science activities, and engaging stakeholders. However, 

as many in Congress and the Administration have suggested, the Task Force lacks some features 

necessary to effectively direct long-term restoration efforts in the Gulf—most importantly the ability 

to set binding goals and priorities. A number of critical issues remain to be addressed, including how 

to allocate funding in a way that addresses the relative restoration needs of individual states; how 

to balance the roles and interests of the state and federal governments; how to ensure that decisions 

are made efficiently and quickly; how to incorporate good science without unduly slowing valuable 

projects; and how to incorporate meaningful public input. 

Recommendation

Congress should dedicate 80 percent of the Clean Water Act penalties to long-term restoration of the Gulf 

of Mexico.

Congress and federal and state agencies should build the organizational, financial, scientific, and public 

outreach capacities needed to put the restoration effort on a strong footing.

The Commission’s recommendations share much common ground with those outlined in Secretary 

Mabus’ report this past September. For instance, the Commission recommends Congress—

recognizing that dedicated, sustained funding is necessary to accomplish long-term Gulf of 

Mexico ecosystem restoration—should direct 80 percent of Clean Water Act penalties to support 

implementation of a region-wide restoration strategy. Directing such payments to the Gulf could, 

for the next 10 years, provide significant funding. If litigation arising from the spill results in civil 

or criminal penalties, a global settlement of litigation should include supplemental environmental 

projects*

 and community service projects that direct payments to the Gulf. Should Clean Water 

Act penalties not be redirected toward Gulf ecosystem restoration, Congress should consider other 

mechanisms for a dedicated funding stream not subject to annual appropriations. 

The Commission recommends that Congress establish a joint state-federal Gulf Coast Ecosystem 

Restoration Council. The structure of the Exxon Valdez Oil Spill Trustee Council should

* “Supplemental environmental projects” are projects that a defendant agrees to undertake as part of a settlement with government of an enforcement action and that are above and beyond those necessary 

to comply with applicable legal requirements. 
42 National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling

inform the structure of the Gulf Coast Council. The Gulf Coast Council should implement a 

restoration strategy for the region that is compatible with existing state restoration goals. This 

strategy should set short- and long-term goals with binding criteria for selecting projects for funding. 

Key criteria should include 1) national significance; 2) contribution to achieving ecosystem resilience; 

and 3) the extent to which national policies such as related to flood control, oil and gas development, 

agriculture, and navigation directly contributed to the environmental problem. 

Experience in major restoration endeavors, including those in the Gulf, has shown that, absent 

binding goals to drive the process, restoration projects are insufficiently funded, focused, or 

coordinated. Establishing a region-wide council to coordinate agency activities represents a necessary 

first step, but without authority to set binding priorities and resolve conflicts, such a council will 

be hampered in its ability to achieve environmental goals. The Commission recommends that a 

region-wide council for the Gulf be given authority to set priorities that will govern the expenditure 

of funds and resolve any conflicts regarding eligibility of projects. The council should further define 

specific categories of projects that could meet each of the three needs. Projects could be categorized 

in a number of ways—for example, by habitat (key estuaries, sea grass, wetlands, coral reefs); by 

goal (biological productivity and ecosystem function, improving resilience, restoring fisheries); or by 

specific project type (river diversion, beach nourishment).

The Commission believes that having a comprehensive, binding strategy to guide the restoration 

effort is critical to success. By elaborating on the goals set by the governing entity and by providing 

specific milestones and restoration objectives, such a strategy would focus the overall effort and help 

ensure that projects are not duplicative. The strategy could also include a map that ties projects to 

specific places and provide a useful mechanism for public involvement. Congress should also ensure 

that the priorities and decisions of the Gulf Coast Council are informed by input from a Citizens 

Advisory Council that represents diverse stakeholders.

Finally, but essentially, restoration decisions must be rooted in science. An approach that draws 

heavily on information and advice from scientists will result in project selection and funding 

allocations that are more likely to lead to an effective region-wide restoration strategy. It will also 

advance transparency in decision-making and enhance credibility with the public. The Commission 

accordingly recommends the establishment of a Gulf Coast Ecosystem Restoration Science and 

Technology Program that would address these issues in three ways: (1) by creating a scientific 

research and analysis program, supported by the restoration fund, that is designed to support the 

design of scientifically sound restoration projects; (2) by creating a science panel to evaluate individual 

projects for technical effectiveness and consistency with the comprehensive strategy; and (3) by 

supporting adaptive management plans based on monitoring of outcomes scaled both to the strategy 

itself and to the individual projects or categories of projects included in it.
43 43

Coastal Vulnerability Index (CVI)

• Very High

• High

• Moderate

• Low

Source: U.S. Geological Survey National Assessment of Coastal Vulnerability to Future Sea-Level Rise—Open File Report 00-179

FIGURE 6: Coastal Vulnerability to Erosion Along the Gulf of Mexico

The Need for Better Tools to Balance Economic and Environmental Interests in the Gulf 

Federal agencies charged with managing activities within the U.S. Exclusive Economic Zone have 

tended to work largely in isolation from one another. Responsive to the recommendations of the 

2004 U.S. Commission on Ocean Policy, President Obama in June 2009 directed two dozen federal 

departments and agencies to provide in-depth recommendations about how federal policy can address 

inefficiencies in the nation’s traditionally ad hoc management of its seas. The Interagency Ocean 

Policy Task Force reported in the summer of 2010; its recommendations were subsequently included 

in a Presidential Executive Order, issued on July 15, 2010, that created a new National Ocean Council 

to coordinate federal marine policy. 
44 National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling

Prominent recommendations included a requirement that key regional and federal authorities develop 

and implement coastal and marine spatial planning, for ocean users and the public. This system is 

designed to optimize marine productivity. More broadly, scientific advice grounded in peer-reviewed 

empirical research inform strategy and decision-making in ocean management, including for energy, 

shipping, national defense, sustainable fisheries, and conservation. 

Recommendation 

The appropriate federal agencies, including EPA, Interior, and NOAA, and the Trustees for Natural 

Resources should better balance the myriad economic and environmental interests concentrated in the 

Gulf region going forward. This would include improved monitoring and increased use of sophisticated 

tools like coastal and marine spatial planning. Many of these tools and capacities will also be important to 

manage areas of the OCS outside the Gulf. 

The Commission recommends that, as a part of management and restoration efforts in the marine 

environment, greater attention should be given to new tools for managing ocean resources, including 

monitoring systems and spatial planning. Marine scientists have emerged from the Deepwater Horizon

incident with more precise questions to investigate and a better sense of monitoring needs in the Gulf 

of Mexico, which because of its multiple uses and economic value should be a national priority. To 

that end, the National Ocean Council should work with the responsible federal agencies, industry 

and the scientific community to expand the Gulf of Mexico Integrated Ocean Observing System, 

including the installation and maintenance of an in situ network of instruments deployed on selected 

production platforms. Participation in this system by industry should be regarded as a reasonable 

part of doing business in nation’s waters. 

Coastal and marine spatial planning has the potential to improve overall efficiency and reduce 

conflicts among ocean users. Congress should fund grants for the development of regional planning 

bodies at the amount requested by the President in the fiscal year 2011 budget submitted to Congress. 

Ocean management should also include more strategically sited Marine Protected Areas, including but 

not limited to National Marine Sanctuaries, which can be used as “mitigation banks” to help offset 

harm to the marine environment. Given the economic and cultural importance of fishing in the Gulf 

region—and the importance of Gulf seafood to the rest of the country—scientifically valid measures, 

such as catch share programs, should be adopted to prevent overfishing and ensure the continuity of 

robust fisheries. 

Marine spatial planning was designed to ensure that myriad ocean management decisions are 

compatible and consistent, that they make sense. In the decades since marine protection began, 

scientists have developed a much more robust understanding of the Gulf’s physical and ecological 

processes. Now, for example, Marine Protected Areas can be used—and should be used—to ensure 

the continuity and robustness of fisheries into the future. Rationalizing ocean use around this 

much improved scientific understanding—for example, by identifying which parts of the ocean are 

appropriate (or inappropriate) for certain uses—should serve to maximize the productivity of natural 

systems and end inefficient or harmful practices that have accumulated over time. 
45 45

Ensuring Financial Responsibility

Oil spills cause a range of harms, both economic and environmental, to individuals and ecosystems. 

The Oil Pollution Act makes the party responsible for a spill liable for compensating those who 

suffered as a result of the spill—through property damage, lost profits, and other economic injuries—

and for restoring injured natural resources. The Act also provides an opportunity to make claims for 

compensation from a dedicated Oil Spill Liability Trust Fund. The Oil Pollution Act, however, imposes 

limits on both the amount for which the responsible party is liable, and the amount of compensation 

available through the trust fund. In the case of the Deepwater Horizon spill, BP (a responsible party) 

has placed $20 billion in escrow to compensate private individuals and businesses through the 

independent Gulf Coast Claims Facility. But if a less well capitalized company had caused the spill, 

neither a multi-billion dollar compensation fund nor the funds necessary to restore injured resources, 

would likely have been available. 

It is critical that compensation to victims be paid in full, and that the process for receiving 

compensation is swift and efficient. The Commission offers recommendations that would increase 

assurances that responsible parties are able to compensate victims (and at the same time strengthens 

incentives to prevent accidents in the first place), and that the Oil Spill Liability Trust Fund provide 

any compensation not provided by responsible parties. It also recommends a close review of the Gulf 

Coast Claims Facility process to determine its effectiveness in adjudicating compensation claims and 

its value as a model for future Spills of National Significance. 

The Need to Increase Existing Limitations on Responsible Party Liability 

Liability for damages from spills from offshore facilities is capped under the Oil Pollution Act at $75 

million, unless it can be shown that the responsible party was guilty of gross negligence or willful 

misconduct, violated a federal safety regulation, or failed to report the incident or cooperate with 

removal activities, in which case there is no limit on damages. Claims up to $1 billion above the $75 

million cap for certain damages can be made to, and paid out of, the Oil Spill Liability Trust Fund, 

which is currently supported by an 8-cent per-barrel tax on domestic and imported oil. 

The Oil Pollution Act also requires responsible parties to “establish and maintain evidence of financial 

responsibility,” generally based on a “worst-case discharge” estimate. In the case of offshore 

facilities, necessary financial responsibility ranges from $35 million to $150 million. The financial 

responsibility requirement provides a direct link between the Oil Pollution Act and insurance, as the 

Act provides that financial responsibility may be “established by any one, or by any combination, of 

the following methods” if determined by the Secretary of the Interior to be acceptable: “evidence of 

insurance, surety bond, guarantee, letter of credit, qualification as a self-insurer, or other evidence of 

financial responsibility.”
46 National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling

There are two main problems with the current liability cap and financial responsibility dollar 

amounts:

•	 Lack of Adequate Safety Incentives: A threshold problem with any damages cap that limits 

liability well below levels that may actually be incurred is that such a cap distorts the incentives 

of industry participants to adopt cost-effective safety precautions. Decisions regarding safety 

precautions are made for a variety of reasons, some of which cannot be influenced by policy 

measures. The relatively modest liability cap and financial responsibility requirements provide 

little incentive for oil companies to improve safety practices.

•	 Inadequate Damages Compensation: BP’s damages from the Deepwater Horizon spill will total in 

the tens of billions of dollars. The company has already paid claims that measure in the billions, 

and has waived the statutory $75 million cap. But there is no guarantee that other companies 

in the future will agree to waive the cap. And if an oil company with more limited financial 

means than BP had caused the Deepwater Horizon spill, that company might well have declared 

bankruptcy long before paying fully for all damages. In the case of a large spill, the Oil Spill 

Liability Trust Fund would likely not provide sufficient backup. Thus, a significant portion of the 

injuries caused to individuals and natural resources, as well as government response costs, could 

go uncompensated.

Any discussion of increasing liability caps and financial responsibility requirements must balance 

two competing public policy concerns: first, the goal of ensuring that the risk of major spills is 

minimized, and in the event of a spill, victims are fully compensated; and second, that increased caps 

and financial responsibility requirements to do not drive competent independent oil companies out of 

the market. A realistic policy solution also requires an understanding of the host of complex economic 

impacts that could result from increases to liability caps and financial responsibility requirements. 

Recommendation

Congress should significantly increase the liability cap and financial responsibility requirements for 

offshore facilities.

To address both the incentive and compensation concerns noted above, Congress should significantly 

raise the liability cap. Financial responsibility limits should also be increased, because if an oil 

company does not have adequate resource to pay for a spill, the application of increased liability 

has little effect: Should a company go bankrupt before fully compensating for a spill, its liability is 

effectively capped. If, however, the level of liability imposed and the level of financial responsibility 

required are set to levels that bear some relationship to potential damages, firms will have greater 

incentives to maximize prevention and minimize potential risk of oil spills31 and also have the 

financial means to ensure that victims of spills do not go uncompensated.
47 47

Legislative attempts to raise the cap and financial responsibility requirements to significantly higher 

levels have been met with the argument that these changes will cause insurance carriers to drop 

oil pollution coverage, leading to an exodus of small and independent companies from the offshore 

drilling market. The counter-argument is that oil companies should bear the social costs of their 

activities, and if those costs are too large or unpredictable to be insurable, then it is appropriate that 

these companies exit the market. 

There is legitimacy to aspects of both arguments. A company should not be able to cause billions of 

dollars of damage and walk away, simply because its operations contribute to the economy of the 

Gulf. Nor should smaller companies that can demonstrate the ability to drill safely and to pay for 

damages resulting from a large spill be forced out of the market. However, smaller companies that 

cannot demonstrate financial responsibility and meet risk requirements set and monitored by the 

Department of the Interior or a third party should not be allowed to make others pay for the costs of 

their accidents. 

One option for keeping competent independents in the market is a mutual insurance pool. Under 

such an arrangement, individual companies engaged in offshore drilling would pay premiums into a 

pool, which would pay out damages caused by a company as a result of a spill. A possible downside 

is that the mutual pool could have the effect of undercutting incentives individual firms might 

otherwise have to improve safety practices—but this problem could be addressed, for example, by 

tying premium levels to the financial and safety risk posed by an individual company’s activities. 

This option would allow companies to demonstrate financial responsibility for the cost of spills, at 

least to the limit paid out by the pool. 

Another option would be to phase in increases in the liability cap and financial responsibility 

requirements, which would allow the insurance industry a period of adjustment. Although any 

increase in liability limits and financial responsibility requirements would test the capacity of the 

offshore drilling insurance market, over time such a change would almost certainly stimulate an 

increase in insurance capacity. A phased-in approach would allow Congress to re-assess any concerns 

about limited capacity in the insurance industry in light of actual experience. 

Finally, regardless of how insurance is provided, smaller firms could be encouraged to partner with 

firms with greater financial resources. It should be noted that “joint ventures” between larger and 

smaller companies already exist; thus a policy change may not be necessary to encourage such 

arrangements.
48 National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling

The Need to Increase Limitations on Payments from the Oil Spill Liability Trust Fund 

If liability and financial responsibility limits are not set at a level that will ensure payment of all 

damages for spills, then another source of funding will be required to ensure full compensation. 

The federal government could cover additional compensation costs, but this approach requires the 

taxpayer to foot the bill. Therefore, Congress should raise the Oil Spill Liability Trust Fund perincident limit because the current limits are clearly inadequate.

Recommendation

Congress should increase the limit on per-incident payouts from the Oil Spill Liability Trust Fund.

Raising the Oil Spill Liability Trust Fund’s per-incident limit will require the Fund to grow through 

an increase of the per-barrel tax on domestic and imported oil production. An alternative would be 

to increase the Trust Fund through a surcharge by mandatory provisions in drilling leases triggered 

in the event that there are inadequate sums available in the Fund. An increase in the Oil Spill Liability 

Trust Fund’s per-incident limit would not provide an incentive to offshore facilities to mitigate risks, 

because risks are pooled and the Oil Spill Liability Trust Fund is funded by parties other than those 

who engage in offshore drilling activities. But raising the limit would help ensure that victims have 

access to compensation without the need to seek further specific funding from Congress, or otherwise 

burdening the taxpayer.

The Need for Better Auditing and Monitoring of Risk

The Interior Department currently determines financial responsibility levels based on potential worstcase discharges, as required by the Oil Pollution Act. Although the agency’s analysis to some degree 

accounts for the risk associated with individual drilling activities, it does not fully account for the 

range of factors that could affect the cost of a spill, and thus the level of financial responsibility 

that should be required. Interior should analyze a host of specific, risk-related criteria when 

determining financial responsibility limits applicable to a particular company, including, but not 

limited to: geological and environmental considerations, the applicant’s experience and expertise, and 

applicable risk management plans. This increased scrutiny would provide an additional guard against 

unqualified companies entering the offshore drilling market. 

Recommendation

The Department of the Interior should enhance auditing and evaluation of the risk of offshore drilling 

activities by individual participants (operator, driller, other service companies). The Department of the 

Interior, insurance underwriters, or other independent entities should evaluate and monitor the risk of 

offshore drilling activities to promote enhanced risk management in offshore operations and to discourage 

unqualified companies from remaining in the market. 
49 49

If liability and financial responsibility limits are raised, increased liabilities will be borne by insurance 

carriers, which will have a strong incentive to promote new safety techniques and methods, as well 

as to monitor risk. Insurance carriers might insist on certification of operators by an independent 

entity devoted to identifying best safety practices and monitoring risk, such as a self-policing safety 

organization for the oil and gas industry. Insurers or a self-policing safety organization for the 

industry also could provide a guard against unqualified companies entering the offshore drilling 

market. 

The Need for Assessment of the Existing Claims Process 

The Oil Pollution Act holds the responsible party liable for private claims brought by individuals 

or businesses for removal costs and certain damages. All claims must first be presented to the 

responsible party, but if the responsible party denies a claim, the claimant may pursue an in-court 

action or present an uncompensated claim for payment to the Oil Spill Liability Trust Fund. The 

Gulf Coast Claims Facility (Claims Facility), which is independently administered on behalf of BP (the 

responsible party), has established a claims processing mechanism that attempts to resolve claims 

against the responsible party outside of the courts.32 Kenneth Feinberg, formerly Special Master for 

the September 11th Victim Compensation Fund, administers the $20 billion escrow account through 

the Claims Facility. Eligible claims include: 1) removal and clean-up costs; 2) physical damages to real 

or personal property; 3) lost profits or impairment of earning capacity; 4) loss of subsistence use of 

natural resources; and 5) physical injury or death. The Facility does not pay claims brought by the 

government, or related to real estate, the moratorium, or the Vessel of Opportunity program.33 

To date, some claimants have been dissatisfied with decisions to deny certain claims and with the 

amount and timeliness of compensation received from approved claims, which has required Feinberg 

to reconsider the rules and processes in place for reimbursement. The United States Department 

of Justice sent a letter to Feinberg on September 17, 2010, urging expediency.34 In response, the 

Claims Facility noted that the large number of fraudulent and undocumented claims have slowed 

the process.35 Nonetheless, after the September 17 letter, Feinberg made several adjustments to the 

program including streamlining processing time and removing geographic proximity to the oil spill 

as bar against payment, Feinberg also extended the timeframe within which claimants could receive 

interim payments without waiving their right to pursue litigation.36 As of December 11, 2010, the 

Claims Facility has paid more than $2.4 billion in claims to more than 164,000 claimants.37 The 

Commission believes it would be useful to evaluate the effectiveness of the Claims Facility as a means 

of informing the compensation process in future large spills. 

Recommendation

The Department of Justice’s Office of Dispute Resolution should conduct an evaluation of the Gulf Coast 

Claims Facility once all claims have been paid out, in order to inform claims processes in future Spills 

of National Significance. The evaluation should include a review of the process, the guidelines used for 

compensation, and the success rate for avoiding law suits.
50 National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling

Promoting Congressional Engagement to Ensure Responsible Offshore 

Drilling

The Commission’s recommendations in this report include some directed to Congress for specific 

legislation, and others directed to various specific federal agencies, responsible parties, and the oil and 

gas industry in general. The several recommendations directed to Congress, however, also highlight a 

further lesson: the need for Congress to engage more systematically in ensuring the safety of drilling 

in the OCS and environmental protection. This includes more active Congressional oversight, and also 

includes Congressional action to ensure that those in government responsible for safety oversight 

and environmental protection review have the resources necessary to do their jobs. To that end, this 

final set of recommendations addresses the need for Congress itself to take affirmative steps to ensure 

responsible offshore drilling. 

The Need for Congressional Awareness and Engagement

In the years between the Exxon Valdez spill and the spring of 2010, Congress, like much of the 

nation, appears to have developed a false sense of security about the risks of offshore oil and gas 

development. Congress showed its support for offshore drilling in a number of ways, but did not 

take any steps to mitigate the increased perils that accompany drilling in ever-deeper water. Until the 

Deepwater Horizon exploded, 11 rig workers lost their lives, and millions of barrels of oil spilled into 

the Gulf of Mexico, Congress had not introduced legislation to address the risks of deepwater drilling.

The congressional committee structure makes it much harder to focus on safety and environmental 

issues associated with offshore oil and gas development. In the 111th Congress, multiple 

committees in both chambers claimed jurisdiction over offshore energy development. The House 

Natural Resources Committee, for example, had jurisdiction over “mineral land laws and claims 

and entries thereunder” and “mineral resources of public lands.” Its Subcommittee on Energy and 

Mineral Resources was specifically charged with oversight of “conservation and development of 

oil and gas resources of the Outer Continental Shelf.” But the House Committee on Energy and 

Commerce oversaw “exploration, production, storage, supply, marketing, pricing, and regulation 

of energy resources, including all fossil fuels,” as well “national energy policy generally.” Similarly, 

the jurisdiction of the Senate Committee on Energy and Natural Resources included “extraction of 

minerals from oceans and Outer Continental Shelf lands,” and its Subcommittee on Energy was 

responsible for oversight of “oil and natural gas regulation” generally. By contrast, the Senate 

Committee on Environment and Public Works claimed oversight over “environmental aspects of Outer 

Continental Shelf lands.” Yet, during the 110th and 111th Congresses, none of the subcommittees of 

environment and public works claimed oversight specifically over OCS lands issues.

In neither the House nor the Senate are any of these committees charged with directly overseeing 

the safety and environmental impacts of offshore development, separate from the conflicting goal of 

resource development and royalties. The House Committee on Education and Labor and the Senate 

Committee on Health, Education, Labor, and Pensions both emphasize occupational safety and 

health. But neither committee appears to focus on process safety—the vital approach identified by 
51 51

this Commission’s investigation that encompasses procedures for minimizing adverse events such as 

effective hazard analysis, management of risk, communication, and auditing. Finally, no oversight 

of any of these matters has been conducted by any of the several House or Senate committees 

or subcommittees responsible for the nation’s tax policies or overall appropriations process, 

notwithstanding the significant impact those policies and appropriations have on both the extent of 

energy industry activities on the OCS and the government’s ability to oversee that activity effectively. 

After the Deepwater Horizon explosion and resulting oil spill, numerous committees took an interest in 

offshore safety and environmental issues and held hearings. In short, it took a catastrophe to attract 

congressional attention.

Recommendation

Increase and maintain congressional awareness of the risks of offshore drilling in two ways. First, create 

additional congressional oversight of offshore safety and environmental risks. Second, require the 

appropriate congressional committees to hold an annual oversight hearing on the state of technology, 

application of process safety, and environmental protection to ensure these issues receive continuing 

congressional attention.

The House and Senate Rules Committee should each assign a specific committee or subcommittee 

to oversee process safety and environmental issues related to offshore energy development. These 

committees should also be given the task of overseeing the Offshore Safety Authority, the creation of 

which this Commission has separately recommended. 

•	 Congress should require the Secretary of the Interior to submit an annual public report on 

energy offshore development activities to the applicable congressional committees. This report 

should focus on the Department’s progress in improving its prescriptive safety regulations; 

steps taken by industry and the Department to improve facility management; the Department’s 

progress in implementing a stronger environmental assessment program, including developing 

improved NEPA guidelines; and on any other steps taken by industry or the Department to 

address safety and environmental concerns offshore. The report should also detail the industry’s 

safety and environmental record during the previous 12 months. Finally, the report should 

highlight any areas in which the Department believes industry is not doing all that it can to 

promote safety and the environment and any areas where additional legislation could be helpful 

to the Department’s efforts.

•	 Congress should require the Department of the Interior’s Office of Inspector General to submit 

an independent annual public report to the applicable congressional committees. The report 

should provide an independent description of the Offshore Safety Authority’s activities over 

the previous 12 months, including its efforts to improve offshore safety and to investigate 

accidents and other significant offshore incidents. The report should also include the Inspector 

General’s evaluation of the Authority’s efforts and the Inspector General’s recommendations for 

improvement.
52 National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling

The Need for Adequate Funding for Safety Oversight and Environmental Review

Many of the earlier recommendations require adequate congressional funding in order to be 

implemented effectively. For instance, the new Offshore Safety Authority at Interior cannot be 

expected to succeed in meaningfully overseeing the oil and gas industry if Congress does not ensure 

it has the resources to do so. Agencies cannot conduct the scientific and environmental research 

necessary to evaluate impacts of offshore development if they do not receive adequate support from 

Congress. In short, Congress needs to make funding the agencies regulating offshore oil and gas 

development a priority in order to ensure a safer and more environmentally responsible industry in 

the future.

BOEMRE currently receives a portion of its funding from offsetting collections from industry. In 

its Fiscal Year 2011 Budget Justification, it requested that just less than half of its budget—$174.9 

million—come from these collections.38 The oil and gas industry, however, should do significantly 

more and provide the funds necessary for regulation of offshore oil and gas operations and oil spill 

preparedness planning. The amount of funding needs to keep pace as industry moves into ever-more 

challenging depths and geologic formations because the related challenges of regulatory oversight 

likewise increase. This could be accomplished many different ways. Congress could, for instance, raise 

the inspection fees already imposed on facilities operating on the outer continental shelf—currently 

offsetting about 3 percent of BOEMRE’s annual budget—or impose a differently based annual 

regulatory fee on new and existing leases. Or Congress could instruct the Department of the Interior 

to include lease provisions that require the imposition of regulatory fees. Interior already possesses 

broad authority to include in leases “such rental and other provisions as the Secretary may prescribe 

at the time of offering the area for lease.”39 No matter the precise mechanism, the oil and gas industry 

would be required to pay for its regulators, just as fees on the telecommunications industry support 

the Federal Communications Commission. Regulation of the oil and gas industry would no longer be 

funded by taxpayers but instead by the industry that is being permitted to have access to a publiclyowned resource. Future Congresses would therefore have less incentive to reduce agency funding.

Recommendation

Congress should enact legislation creating a mechanism for offshore oil and gas operators to provide 

ongoing and regular funding of the agencies regulating offshore oil and gas development.

Moving to Frontier Regions

The nation’s demand for domestic oil production will push the boundaries of technology and 

geography. The industry will develop new exploration and extraction techniques and equipment in 

new areas in the decades ahead. Drilling safely in the Gulf of Mexico requires a new industry safety 

culture and significantly improved regulatory oversight. Those reforms, and further heightened 

vigilance, will be required for oil exploration and production in frontier offshore regions. When the 

Macondo blowout dumped enormous volumes of oil into the Gulf waters, scientists and policymakers 

realized how little was known about biological systems, environmental conditions, and even key 
53 53

aquatic and coastal species. Leasing of vast acreage combined with weak policies and limited funding 

had resulted in inadequate studies of unique habitats and sensitive environmental features where 

greater caution should be exercised. What information was available was often not shared, or was 

disregarded, in leasing and permitting decisions. And little, if any, research or policy existed to address 

human health impacts and the risks to responders from a major spill, or the far-reaching effects of 

such a disaster on other businesses dependent on the region’s resources.

In addition to these challenges, each frontier area presents important differences in implementing 

any drilling program—different geologies, hydrocarbon formations, coastal communities and 

environments, and climate conditions, to mention some. Federal waters of the United States other 

than the central and western Gulf of Mexico, parts of Southern California, and the Lower Cook Inlet 

in Alaska would be regarded as frontier territory. In the late 1970s, attention turned briefly to areas 

off of northern California and Massachusetts (Georges Banks), and in the early 1980s, the potential 

of the outer continental shelf off Alaska attracted considerable investment. In recent years, the focus 

has turned to exploring in the Atlantic Ocean off the State of Virginia; in the eastern Gulf of Mexico; 

and, most notably, to taking another serious look at offshore regions in the Alaskan Arctic. Drilling 

water depths of 10,000 feet or more anywhere in the Gulf of Mexico might also be considered 

opening a new frontier, given the new technologies required.

In March 2010, President Obama and Interior Secretary Ken Salazar announced a plan to open the 

eastern Gulf and parts of the Atlantic coast—including offshore Virginia—to oil and gas exploration 

(subject to studies of the suitability of doing so in each area, and to the lifting of a congressional 

moratorium restricting drilling in the eastern Gulf). But on December 1, in the wake of the 

Deepwater Horizon experience and the resulting broad restructuring of regulations and the federal 

oversight capabilities, Secretary Salazar announced that the Administration would not proceed 

with drilling in areas where there are “no active leases” during the next five-year leasing plan. As a 

result, exploration and production in certain frontier areas—the eastern Gulf and off of the Atlantic 

and Pacific coasts—are deferred. The Secretary also indicated that plans for 2011 drilling in Alaska’s 

Beaufort Sea would be subjected to additional environmental assessments. There will consequently 

be a continuing examination of the various stages of drilling, if pursued, consistent with national 

energy policy and with a full awareness of the risks and of the values that must be balanced in each 

region, and with assurance that operators rigorously adhere to the best practices of a functioning 

safety culture.

By their very location and nature, these frontier areas differ from the Gulf of Mexico and in 

important respects from each other. Environmental and biological conditions are at least as well 

understood along the Atlantic coast as in the Gulf—and there are also important facilities, such as 

Coast Guard installations in place; in contrast, equivalently detailed geological and environmental 

information does not exist for the Arctic exploration areas of greatest interest for energy 

exploration—and industry and support infrastructures are least developed, or absent, there. In the 

near term, the Alaskan frontier is likely to attract the greatest attention, and to require the closest 

scrutiny, given the potential energy resources and the physical and environmental challenges of 

pursuing them safely.
54 National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling

Large prospects in offshore Alaska. The interest in offshore Alaska reflects the likelihood of finding 

significant new sources of oil:40 the Chukchi and Beaufort Sea areas off Alaska’s north coast rank behind only the Gulf of Mexico in estimated domestic resources.41 The most recent federal lease sales for 

the Beaufort Sea, from 2003 to 2008, netted $98 million, reflecting high levels of industry interest. 

And despite its remoteness and harsh conditions, the Chukchi Sea—with vast potential resources—attracted over $2.6 billion in high bids for almost 2.8 million acres, including $2.1 billion from Shell Oil 

Company, during a 2008 lease sale.42 

If deemed feasible, new offshore Alaskan oil production may be well-timed to offset the sustained 

decline in output elsewhere in Alaska. Oil production in the state (primarily from the onshore field 

at Prudhoe Bay) has decreased by more than two-thirds, from the 1988 peak of 2 million barrels per 

day to 645,000 barrels per day in 2009.43 Depending on future prices, this decline could constitute 

a threat to the state’s economy, which is highly dependent on oil and gas revenues and related 

employment. The Energy Information Administration projects that Alaska’s production will continue 

to decline, to just 420,000 barrels per day by the end of this decade.44 Such declines could threaten the 

viability of the Trans-Alaska Pipeline System, which transports oil from the North Slope to the port 

at Valdez.

Despite the Energy Information Administration’s permission about long-term production trends in 

Alaska, other projections show a potential upswing. An optimistic scenario developed in 2009 study 

by Northern Economics for Shell Exploration and Development projects production from multiple 

Alaska outer continental shelf sites beginning in 2018 and eventually peaking at 1.8 million barrels 

of oil per day.45 (New pipelines would need to be built to connect these reservoirs, if brought into 

production, to the Trans-Alaska Pipeline System.) 

But finding and producing those potentially important supplies of oil offshore Arctic Alaska requires 

the utmost care, given the special challenges and risks associated with this frontier. Many of these 

challenges also arise elsewhere in the world, as Russia, Norway, Canada, and Denmark (Greenland) 

evaluate their Arctic oil and gas resources. The Alaskan Arctic is characterized by extreme cold, 

extended seasons of darkness, hurricane-strength storms, and pervasive fog—all affecting access and 

working conditions. The Chukchi and Beaufort Seas are covered by varying forms of ice for eight 

to nine months a year. These conditions limit exploratory drilling and many other activities to the 

summer months. The icy conditions during the rest of the year pose severe challenges for oil and gas 

operations and scientific research. And oil-spill response efforts are complicated year-round by the 

remote location and the presence of ice, at all phases of exploration and possible production.

The geological pressures in hydrocarbon deposits in shallow seas off Alaska are likely to be 

substantially below those encountered at Macondo, reducing some of the risks of a major blowout 

and challenges of containment. But oil spilled off Alaska (from blowouts, pipeline or tanker leaks, 

or other accidents) is likely to degrade more slowly than that found in the Gulf of Mexico because of 

lower water temperatures, reduced mixing of the oil into the water due to the presence of ice, and the 

shallower depths through which oil would travel from the wellhead to the surface. Some think the 

slow weathering could facilitate the skimming and in situ burning of escaped oil under ideal weather 
55 55

conditions, but the slow pace of natural dispersion means that oil would linger much longer in the 

marine environment. And serious questions remain about how to access spilled oil when the area is 

iced over or in seasonal slushy conditions. 

The Arctic ecosystem, the need for scientific information and informed decision-making, and 

Alaska native peoples. The stakes for drilling in the U.S. Arctic are raised by the richness of its 

ecosystems. The marine mammals in the Chukchi and Beaufort are among the most diverse in the 

world, including seals, cetaceans, whales, walruses, and bears. The Chukchi Sea is home to roughly 

one-half of America’s and one-tenth of the world’s polar bears.46 In November 2010, the U.S. Fish 

and Wildlife Service ruled that a large part of the polar bears’ “critical habitat” included sea ice in the 

Beaufort and Chukchi Seas.47 The Chukchi and Beaufort Seas also support millions of shorebirds, 

seabirds, and waterfowl, as well as abundant fish populations. 

It is known that these are vibrant living systems, but scientific research on the ecosystems of the 

Arctic is difficult and expensive. Good information exists for only a few species, and even for those, 

just for certain times of the year or in certain areas. As a result, the Commission recommends an 

immediate, comprehensive federal research effort to provide a foundation of scientific information 

on the Arctic (with periodic review by the National Academy of Sciences), and annual stock 

assessments for marine mammals, fish, and birds that use the Beaufort and Chukchi Seas. This 

initiative should be coordinated with the state of Alaska, native organizations, academic institutions, 

non-governmental organizations, the private sector, and international partners. The information 

generated should be capable of informing decision-making related to oil and gas leasing, exploration, 

and development and production in the Arctic; measuring and monitoring impacts of oil and gas 

development on Arctic ecological resources; natural resource damage assessment should an oil spill 

occur and protocols in any treaty negotiated among the Arctic nations. The existing gaps in data also 

support an approach that distinguishes in leasing decisions between those areas where information 

exists and those where it does not, as well as where response capability may be less and the related 

environmental risks may therefore be greater. The need for additional research should not be used 

as a de facto moratorium on activity in the Arctic, but instead should be carried out with specific 

timeframes in mind in order to inform the decision-making process. 

The Inupiat Eskimos of Alaska’s remote arctic and subarctic communities rely heavily for their 

subsistence on resources from the marine environment, particularly bowhead whales. Bowhead 

whales can reach 60 feet in length and weigh more than 120,000 pounds. They migrate from 

Russian to Canadian waters and back through the Chukchi and Beaufort Seas.48 They are the most 

important subsistence animal for the coastal communities of northwest and northern Alaska.49

Whale hunting and the customs surrounding it are also an important part of their cultural heritage. 

Oil and gas development has the potential, directly or indirectly, to affect hunting success or the 

habitats of species important to subsistence. (Of course, offshore oil development could play a 

positive economic role in the native communities; some Inupiat whaling captains also work in the oil 

industry, for instance.). An Arctic Regional Citizens Council could help assure the active participation 

of the people who know this region the best in planning and response.
56 National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling

Arctic spill response and containment. The remoteness and weather of the Arctic frontier create 

special challenges in the event of an oil spill. Successful oil spill response methods from the Gulf of 

Mexico, or anywhere else, cannot simply be transferred to the Arctic. Industry and academic organizations are conducting research on response to oil on ice, but more needs to be done. A comprehensive 

interagency research program to address oil spill containment and response issues in the Arctic should 

be developed, funded, and implemented within the federal government. Spill trajectory and weather 

models based on Arctic conditions must also be developed. This research should be funded promptly 

by the Oil Spill Liability Trust Fund, and the resulting analysis should inform when and where leasing 

occurs. 

The National Contingency Plan requires the Coast Guard to oversee oil spill planning and 

preparedness, and to supervise an oil-spill response in coastal waters. Current federal emergency 

response capabilities in the region are very limited: the Coast Guard operations base nearest to 

the Chukchi region is on Kodiak Island, approximately 1,000 miles from the leasing sites. The 

Coast Guard does not have sufficient ice-class vessels capable of responding to a spill under 

Arctic conditions: two of its three polar icebreakers have exceeded their service lives and are nonoperational.50 In addition to overseeing spill response, the Coast Guard provides search and rescue 

capabilities in other areas. Without a presence in the Arctic, it would be very difficult for the Coast 

Guard to conduct any emergency search and rescue operations. 

To deal with these serious concerns about Arctic oil spill response, containment, and search and 

rescue, the Commission recommends three approaches before the Department of the Interior makes 

a fully informed determination that drilling in a particular area is appropriate. First, the Department 

of the Interior should ensure that the containment and response plans proposed by industry are 

adequate for each stage of development and that the underlying financial and technical capabilities 

have been satisfactorily demonstrated in the Arctic. Second, the Coast Guard and the oil companies 

operating in the Arctic should carefully delineate their respective responsibilities in the event of an 

accident, including search and rescue, and then must build and deploy the necessary capabilities. 

Third, Congress should provide the resources to establish Coast Guard capabilities in the Arctic, based 

on the Coast Guard’s review of current and projected gaps in its capacity. 

International standards for Arctic oil and gas. The Arctic is shared by multiple countries, many of 

which are considering or conducting oil and gas exploration and development. The extreme weather 

conditions and infrastructure difficulties are not unique to the U.S. Arctic. The damages caused by an 

oil spill in one part of the Arctic may not be limited to the waters of the country where it occurred. 

As a result, the Commission recommends that strong international standards related to Arctic oil 

and gas activities be established among all the countries of the Arctic. Such standards51 would require cooperation and coordination of policies and resources. The Arctic Council has begun work in 

this direction, updating its voluntary Arctic Offshore Oil and Gas Operation Guidelines in 2009. The 

International Standards Organization is also developing international standards for Arctic offshore 

structures that would apply to the activities of petroleum and natural gas industries in Arctic and 

cold regions. These guidelines are expected to specify requirements and provide recommendations and 

guidance for the design, construction, transportation, installation, and removal of offshore structures 
57 57

in the Arctic. Additional work is needed to strengthen these guidelines and standards, ensuring that 

they are both consistent and mandatory across the entire Arctic, and the United States could pay an 

important leadership role in securing these vital safeguards. 

Bringing the potentially large oil resources of the Arctic outer continental shelf into production 

safely will require an especially delicate balancing of economic, human, environmental, and 

technological factors. Both industry and government will have to demonstrate standards and a level 

of performance higher than they have ever achieved before. One lesson from the Deepwater Horizon 

crisis is the compelling economic, environmental, and indeed human rationale for understanding 

and addressing the prospective risks comprehensively, before proceeding to drill in such challenging 

waters. 

Conclusion

The President asked this Commission to recommend not only “improvements to Federal laws, 

regulations, and industry practices applicable to offshore drilling,” but also “organizational or other 

reforms of Federal agencies or processes necessary to ensure such improvements are implemented 

and maintained.” In carrying out this charge, the Commission has been mindful of the dangers of 

“fighting the last war”: that is, addressing the specific failures revealed by the Deepwater Horizon 

disaster, but neglecting to anticipate future problems whose contours are yet unknown. Our 

recommendations—for a new approach to risk assessment and management; a new, independent 

agency responsible for safety and environmental review of offshore drilling; stronger environmental 

review and enforcement; a reorientation of spill response and containment planning; and a revision 

of liability rules to better protect victims and provide proper incentives to industry—aim to establish 

an oversight regime that is sufficiently strong, expert, well-resourced, and flexible to prevent the 

next disaster, not the last. The oil and gas industry—remarkable for its technological innovation and 

productivity—needs government oversight and regulation that can keep pace. 
58 National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling

Endnotes

1 Exec. Order No. 13543, 75 Fed. Reg. 29,397 (May 21, 2010).

2 See 43 U.S.C. § 1337(b)(6) (“An oil and gas lease issued pursuant to this section shall . . . contain such rental and other provisions as the 

 Secretary may prescribe at the time of offering the area for lease.”).

3 Crude Oil Production, Petroleum Navigator, U.S. Energy Information Administration, July 29, 2010, http://www.eia.gov/dnav/pet/

 pet_crd_crpdn_adc_mbbl_a.htm.

4 These terms are taken directly from the Council on Environmental Quality (CEQ) NEPA implementing regulations. 40 C.F.R. § 1508.28. 

5 40 C.F.R. §1508.4.

6 A “Development Operations Coordination Document” in the Gulf of Mexico is functionally the same as a “Development and Production 

 Plan” in other LES regions.

7 Press Release, Department of the Interior, Categorical Exclusions for Gulf Offshore Activity to be Limited While Interior Reviews NEPA Process and 

 Develops Revised Policy, August 16, 2010.

8 Minerals Management Service, MMS 2007-018 Gulf of Mexico OSC Oil and Gas Lease Sales: 2007-2010 Final Environmental Impact Statement

 (April 2007), Volume I, 2-3 to 2-5. 

9 Minerals Management Service, MMS 2007-026 Chukchi Sea Planning Area Oil and Gas Lease Sale 193 and Seismic Surveying Activities in the 

 Chukchi Sea Final Environmental Impact Statement (May 2007), Volume I, 1. 

10 Department of Interior, Department Manual Part 516: National Environmental Policy Act of 1969 (September 2009), 3.4. 

11 Government Accountability Office, GAO-10-276 Offshore Oil and Gas Development: Additional Guidance Would Help Strengthen the Minerals 

 Management Service’s Assessment of Environmental Impacts in the North Aleutian Basin (March 2010), 21. 

12 Council on Environmental Quality, Final Recommendations of the Interagency Ocean Policy Task Force (July 19, 2010), 41. 

13 43 U.S.C. § 1346. 

14 Commission staff analysis of MMS yearly budget request and enactments, by nominal and real (2005) dollars. See Bureau of Ocean Energy 

 Management, Office of Administration and Budget: Budget Division, http://www.boemre.gov/adm/budget.html; Herbert Kaufman and 

 Cheryl Anderson, Department of the Interior, OCS Environmental Studies Contract Projects—Fiscals Years 1973 through 1983 (DOI Minerals 

 Management Service Branch of Environmental Studies, December 1983), II-8. 

15 33 U.S.C. § 1321(j)(5)(D)(i); 40 C.F.R. § 300.211. 

16 30 C.F.R. § 254.2(a). 

17 30 CFR § 254.126.

18 40 C.F.R. § 300.322.

19 See 23 U.S.C. § 125.

20 Pub. L. No. 107-171, § 2701, 116 Stat. 134, 278-279 (2002).

21 Department of the Interior, National Notice to Lessees and Operators of Federal Oil and Gas Leases, Outer Continental Shelf No. 2010-N10 

 (November 8, 2010), http://www.gomr.boemre.gov/homepg/regulate/regs/ntls/2010NTLs/10-n10.pdf. 

22 See 30 C.F.R. §§ 250.410-418. 

23 See 30 C.F.R. § 250.418(j).

24 Transcript, Deepwater Blowout Containment Conference (Sept. 22, 2010), http://www.doi.gov/news/video/Deepwater-Blowout-

 Containment-Conference.cfm.

25 Doug Suttles (BP), interview with Commission staff, October 13, 2010. 

26 Response workers generally must be trained pursuant to the Hazardous Waste Operations and Emergency Response (“HAZWOPER”) 

 regulation administered by the Occupational Safety and Health Administration. 29 C.F.R. § 1910.120. This regulation requires specific 

 training and medical surveillance and monitoring for workers dealing with hazardous materials. While this regulation presumably applied 
Endnotes 59

 to formal response contractors after the Deepwater Horizon spill, it was not applied consistently to citizen responders who also require 

 its protections.

27 Public information should further be provided in languages and formats that are understandable to individuals with limited English 

 proficiency and individuals with disabilities. See ESF #8 – Public Health and Medical Services Annex at 7. 

28 Indeed, the Public Health and Medical Services Annex provides for long-term monitoring of potentially exposed individuals, 

 requiring the Department of Health and Human Services to “assist[] State, tribal, and local officials in establishing a registry of 

 potentially exposed individuals . . . and conducting long-term monitoring of this population for potential long-term health effects.” 

 ESF #8 – Public Health and Medical Services Annex at 9-10. Rebecca Bratspies, et al., From Ship to Shore: Reforming the 

 National Contingency Plan to Improve Protections for Oil Spill Cleanup Workers (Center for Progressive Reform, September 

 2010).

29 Whether or not respirators should be required for cleanup workers emerged as a major controversy in the response to the 

 Deepwater Horizon oil spill.

30 Ray Mabus, America’s Gulf Coast: A Long Term Recovery Plan after the Deepwater Horizon Oil Spill (September 2010); Exec. 

 Order No. 13554, 75 Fed. Reg. 62313–62317 (October 8, 2010). 

31 Federal liability for damages is not the only potential liability that could result from an offshore drilling incident. Under the Oil 

 Pollution Act, drillers are strictly liable for removal costs. Companies can also be subject to federal civil and criminal penalties 

 as well as unlimited liability for damages under some state laws. These liabilities presumably drive business to internalize risk and 

 mitigate safety, though not as fully as they might if damages liability were not capped.

32 Gulf Coast Claims Facility, Frequently Asked Questions, http://www.restorethegulf.gov/sites/default/files/imported_pdfs/library/

 assets/gccf-faqs.pdf. 

33 Gulf Coast Claims Facility, Frequently Asked Questions, http://www.gulfcoastclaimsfacility.com/faq#Q9. Government claims 

 for loss of revenue are being handled by BP: http://www.bp.com/governmentclaims. A $60 million BP fund is in place for real 

 estate claims across the five Gulf states and is being administered by National Catastrophe Adjusters, a claims adjustment firm: 

 www.gulfreclaims.com; Kathy Jumper, “Realtors Tap National Catastrophe Adjusters To Administer Oil Spill Claims,” Press-

 Register, August 24, 2010, http://blog.al.com/live/2010/08/realtors_oil_claims.html. BP has set aside $100 million for rig workers 

 who experience hardship due to the moratorium, to be administered by the Gulf Coast Restoration and Protection Foundation: 

 http://www.gcrpf.org/. Claims for repairs or damage to vessels involved in the Vessel of Opportunity program are being handled 

 by BP. 

34 Letter from Thomas J. Perrelli, Associate Attorney General, Department of Justice, to Kenneth Feinberg, September 17, 2010.

35 Leader on BP Claims Blames Fraud for Slow Payouts, Associated Press, October 5, 2010.

36 Press Release, Gulf Coast Claims Facility, Feinberg Announces Faster and More Generous Payments from GCCF, September 25, 

 2010, http://www.gulfcoastclaimsfacility.com/press6.php; Press Release, Gulf Coast Claims Facility, Feinberg Announces 

 Clarification Regarding Geographic Proximity, October 4, 2010, http://www.gulfcoastclaimsfacility.com/press7.php; Editorial, 

 “Are Victims of the Gulf Oil Spill Getting What They Deserve?”, Washington Post, November 25, 2010, http://www.

 gulfcoastclaimsfacility.com/press; Siobhan Hughes and Ryan December, “Feinberg Softens His Stance on Claims From Spill,” 

 Wall Street Journal, November 26, 2010. 

37 Gulf Coast Claims Facility, GCCF Program Statistics—Overall Summary, Gulf Coast Claims Facility, December 11, 2010, http://

 www.gulfcoastclaimsfacility.com/GCCF_Overall_Status_Report.pdf. 

38 Minerals Management Service, Budget Justifications and Performance Information Fiscal Year 2011.

39 43 U.S.C. § 1337(b)(6).

40 There are also massive natural gas resources in and off Alaska, but until pipeline is built to the lower 48 states, the gas cannot be brought 

 to market and used.
60 National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling

41 Department of the Interior, “Estimated Undiscovered, Economically Recoverable Resources,” http://www.doi.gov/whatwedo/energy/ocs/

 upload/UERR-map-2012-2017-80-NoYear-Note.pdf. 

42 Bureau of Ocean Energy Management, “Lease Sales,” December 2, 2010, http://alaska.boemre.gov/lease/hlease/LeasingTables/

 lease_sales.pdf; Minerals Management Service, “Summary of Company Bids,” February 7, 2008, http://alaska.boemre.gov/

 cproject/Chukchi193/193Saleday/Sale%20193%20Sum%20of%20Co%20Bids%20by%20Co%20Code.pdf. 

43 Energy Information Administration, Annual Energy Review 2009 (August 19, 2010), Table 5.2, 131. 

44 Energy Information Administration, Annual Energy Outlook 2011, Table A14. 

45 Northern Economics, Economic Analysis of Future Offshore Oil and Gas Development: Beaufort Sea, Chukchi Sea, North 

 Aleutian Basin (March 2009), ES-7, 9. 

46 Audubon Alaska, “Chukchi Sea” http://ak.audubon.org/issues-action/chukchi-sea.

47 Press Release, Department of the Interior, U.S. Fish and Wildlife Service Announces Final Designation of Polar Bear Critical 

 Habitat, November 24, 2010. 

48 Lori Quakenbush, “Bowhead Whale,” Alaska Department of Fish & Game, September 22, 2010. 

49 Ibid. 

50 Ronald O’Rourke, Changes in the Arctic: Background and Issues for Congress (October 15, 2010), 31 (“On June 25, 2010, the 

 Coast Guard announced that Polar Sea had suffered an unexpected engine casualty and consequently will likely be unavailable for 

 operation until at least January 2011.”). 

51 The Arctic Council is a multinational and intergovernmental group. Members include the governments of Canada, Denmark 

 (including the Faroe Islands and Greenland), Finland, Iceland, Norway, the Russian Federation, Sweden, and the United States 

 of America. The Permanent Participants of the Arctic Council are: Aleut International Association (AIA), Arctic Athabaskan 

 Council (AAC), Gwich’in Council International (GCI), Inuit Circumpolar Council (ICC), Russian Association of Indigenous 

 Peoples of the North (RAIPON), and the Saami Council.
Endnotes 61
62 National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling

Appendix A

Commission Members

SENATOR BOB GRAHAM, Co-Chair, is the former two-term 

governor of Florida and served for 18 years in the United States 

Senate. After retiring from public life in January 2005, Senator 

Graham served for a year as a senior fellow at the Harvard 

Kennedy School of Government. There he commenced writing 

America, the Owner’s Manual, published in 2009 as a guide to 

participatory citizenship. From May 2008 to February 2010, 

he served as chairman of the Commission on the Prevention of 

Weapons of Mass Destruction Proliferation and Terrorism, and 

currently serves as a member of the Financial Crisis Inquiry 

Commission and the CIA’s Executive Advisory Board.

WILLIAM K. REILLY, Co-Chair, is a founding partner of Aqua 

International Partners, LP, a private equity fund dedicated 

to investing in companies engaged in water and renewable 

energy, and a senior advisor to TPG Capital, LP, an international 

investment partnership. He co-chaired the National Commission 

on Energy Policy. Mr. Reilly served as Administrator of the U.S. 

Environmental Protection Agency (1989-1993) and president of 

World Wildlife Fund (1985-1989). He also served as the head of 

the U.S. delegation to the United Nations Earth Summit at Rio 

in 1992. Photo: Mandel Ngan/AFP/Getty Images

FRANCES G. BEINECKE, Member, is the President of the Natural 

Resources Defense Council (NRDC), a non-profit corporation 

that works to advance environmental policy in the United 

States and across the world. In addition, Ms. Beinecke currently 

serves on the Board of the World Resources Institute and the 

steering committees of the U.S. Climate Action Partnership. 

She is a member of the Aspen Institute’s Commission on 

Arctic Climate Change, and on the advisory boards of the Yale 

School of Management and the Yale School of Forestry and 

Environmental Science.
Appendix 63

DONALD F. BOESCH, Member, is President of the University 

of Maryland Center for Environmental Science, where he is 

also a Professor of Marine Science and Vice Chancellor for 

Environmental Sustainability for the University System of 

Maryland. He is a biological oceanographer who has conducted 

research on coastal ecosystems along the Atlantic Coast, the 

Gulf of Mexico, Australia and the East China Sea. A native of 

Louisiana, he has assessed the long-term environmental effects 

of offshore oil and gas development and multiple environmental 

problems of the Gulf Coast.

TERRY D. GARCIA, Member, is currently Executive Vice 

President for Mission Programs for the National Geographic 

Society, responsible for the Society’s core programs that 

manage more than 400 scientific field research, conservation 

and exploration projects annually. From 1994 to 1996, he was 

General Counsel at NOAA and led the implementation of the 

Exxon Valdez Oil Spill Restoration Plan for Prince William Sound 

and the Gulf of Alaska. From 1997 to 1999, he was Assistant 

Secretary of Commerce for Oceans and Atmosphere and Deputy 

Administrator of NOAA. 

CHERRY A. MURRAY, Member, is Dean of the Harvard School of 

Engineering and Applied Sciences and John A. and Elizabeth S. 

Armstrong Professor of Engineering and Applied Sciences. She 

is currently the Past President of the American Physical Society. 

She was formerly Senior Vice President of Physical Science 

& Wireless Research at Bell Labs and past Principal Associate 

Director for Science & Technology at Lawrence Livermore 

National Laboratory. A member of the National Academy of 

Engineering and the National Academy of Sciences, she has 

served on more than 80 national and international scientific 

advisory committees, governing boards, and National Research 

Council panels, including chairing the Council’s Division of 

Engineering and Physical Science.

FRAN ULMER, Member, is Chancellor of the University of 

Alaska Anchorage, Alaska’s largest public university. Ms. 

Ulmer has served as Mayor of Juneau and Lieutenant Governor 

of Alaska. As a state legislator, she served on the Special 

Committee on the Exxon Valdez Oil Spill Claims Settlement. 

She has been a member of the North Pacific Anadromous 

Fish Commission, the Alaska Coastal Policy Council, the 

Alaska Nature Conservancy, the National Parks Conservation 

Association, the Aspen Institute’s Commission on Arctic Climate 

Change, among many others.
64 National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling
65 65