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38 B.C. Envtl. Aff. L. Rev. 219 (2011)
Reconceptualizing NEPA to Avoid the Next Preventable Disaster

handle is hein.journals/bcenv38 and id is 227 raw text is: RECONCEPTUALIZING NEPA TO AVOID THE NEXT PREVENTABLE DISASTER MICHAEL BARSA* DAvID A. DANA** Abstract: This Article develops two accounts of why the risks of techno- logical failure at the root of the Deepwater Horizon disaster were roundly ignored by regulators and industry alike. First, we argue that the inatten- tion to risk may have reflected a groupthink pathology within the ho- mogenous community of regulators and industry actors, whereby an or- thodoxy regarding the safety of drilling came to be not just accepted but required in order to succeed. Second, we argue that the inattention to risk may have been a rational industry decision in light of its ability to avoid bearing all the costs of a disaster, as well as its ability to capture regulators to avoid unwanted scrutiny. We argue, then, that no matter which account was in fact prevalent, the proposed reforms in the wake of Deepwater Ho- rizon are not fundamental enough to address the risks. Building on a con- tractarian model, we argue for a reformulation of NEPA and other envi- ronmental reviews whereby it would be understood that industry engages in these reviews as a contractual quid pro quo for obtaining valuable rights, such as leases, and where those rights could be rescinded when it becomes apparent that the reviews were not conducted reasonably and in good faith. In other words, we believe that industry must come to own environmental review and, once that is so, the culture and calculations of industry leaders will change to make them more attentive to environ- mental risks. INTRODUCTION There are many technical, engineering, and scientific reasons why the Deepwater Horizon/BP disaster occurred. This Article does not seek to address the proximate causes of the disaster, but instead to probe further back in time. Why did no one in either government or industry plan for such a catastrophe? Why did numerous environmental reviews fail to even consider an oil spill of such great magnitude? @ 2011, Michael Barsa & David A. Dana. * Senior Lecturer, Northwestern University School of Law. ** Stanford Clinton Sr. and Zylpha Kilbride Clinton Research Professor of Law, Northwestern University School of Law. 219

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