Can Obama Take Over the Oil Spill Response?

You betcha.

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GULF OF MEXICO - MAY 19: Smoke rises from a controlled burn May 19, 2010 in the Gulf of Mexico. According to reports May 20, 2010, Environmental Protection Agency (EPA) has ordered BP to use a less toxic chemical oil dispersant to break up the oil in the Gulf. (Photo by John Kepsimelis/U.S. Coast Guard via Getty Images)

Oil, Oil Everywhere: An FP photo essay.

In recent days, as criticism of BP's handling of the Gulf of Mexico oil spill has reached fever pitch, critics have also been taking aim at Barack Obama's administration for not assuming a more active role in the response. Louisiana Governor Bobby Jindal said that he and his fellow Gulf Coast governors would begin to "take matters into our own hands" after protective equipment promised by BP was not set up and the federal government failed to force the issue. A group of Democratic lawmakers has gone even further, urging the Interior Department to shut down drilling on a second BP rig in the Gulf of Mexico. But does the U.S. government actually have the legal authority to do more than it has to address the crisis in the Gulf?

Oil, Oil Everywhere: An FP photo essay.

In recent days, as criticism of BP’s handling of the Gulf of Mexico oil spill has reached fever pitch, critics have also been taking aim at Barack Obama’s administration for not assuming a more active role in the response. Louisiana Governor Bobby Jindal said that he and his fellow Gulf Coast governors would begin to “take matters into our own hands” after protective equipment promised by BP was not set up and the federal government failed to force the issue. A group of Democratic lawmakers has gone even further, urging the Interior Department to shut down drilling on a second BP rig in the Gulf of Mexico. But does the U.S. government actually have the legal authority to do more than it has to address the crisis in the Gulf?

You bet it does. In 1990, in the wake of the Exxon Valdez spill, Congress passed the Oil Pollution Act, which amended the Clean Water Act to give the president vastly expanded authority to respond to oil spills. Previously, precious time was often lost as authorities waited for the company responsible to mobilize its resources. Now, if an oil spill is of “such a size or character as to be a substantial threat to the public health or welfare of the United States,” the president has the authority to “direct federal, state, and private actors to remove or arrange for the removal of the oil” or even destroy a leaking vessel.

Then came Hurricane Katrina, which exposed how tangled chains of command could prevent federal authorities from responding effectively to a natural disaster. The National Response Framework developed after the storm gives the federal government authority to coordinate the response by public and private actors to “nationally significant incidents.” The Obama administration has declared the Gulf spill “nationally significant,” but has so far allowed BP to take the lead in coordinating the response.

But just because the federal government has the authority to take over doesn’t mean it has the resources to do a better job. Asked by reportswhether BP should be replaced as coordinator of the response effort, Adm. Thad Allen of the U.S. Coast Guard answered, “Replace them with what?” Homeland Security Secretary Janet Napolitano has admitted that federal authorities have “limited capability and expertise” to respond to deep-water spills.

Critics, however, argue that the law gives the administration authority to at least more directly oversee BP’s attempts to stop the spill and make sure it isn’t putting economic considerations ahead of public safety by trying to keep the well functioning.

As for whether the feds could shut down BP’s other Gulf rig, Atlantis, the law is a bit less clear. Unlike, say, Venezuela’s Hugo Chávez, the U.S. government can’t just seize a company’s assets as a punitive measure, but it can shut down activity at a facility if authorities can demonstrate that it poses an imminent environmental risk. A case could be made that because Atlantis, like the Deepwater Horizon that exploded on April 20, was built after BP obtained safety regulation waivers from the Interior Department’s Minerals Management Service, it constitutes a similar threat, but this would be new territory for environmental law.

Thanks to Melinda Taylor, director of the Environmental Law Clinic at the University of Texas at Austin, and Rebecca Bratspies, associate professor of law at City University of New York.

Got a question for the FP Explainer? Email explainer [at] foreignpolicy.com.

Joshua E. Keating was an associate editor at Foreign Policy.

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