The federal civil and criminal investigations of the 2010 oil spill in the Gulf of Mexico continue to be a source of frustration for the press, not in and of themselves, but rather because they thwart reporters’ access to certain information and data.
At the Society of Environmental Journalists annual conference in Miami last week, the issue came up during multiple panels and in hallway conversations. Asked about journalists’ complaints about a lack of government transparency, Jane Lubchenco, the administrator of the National Oceanic and Atmospheric Administration, cited the ongoing investigations as reasons that her office can’t discuss certain aspects of the Gulf spill:
I think there’s a lot of confusion about what we know and what we’re able to talk about with respect to the impact of Deepwater Horizon as it relates to the legal case under the Natural Resource Damage Assessment Process and I think this is worth describing because there’s a huge amount confusion about it.
The federal government is in the process of building a case against the responsible parties to take them to court and get the most damages recovered to do the restoration that’s needed. Part of building that court case is to assemble information, but typically in a court case you don’t tell the person on the other side of the case what you know because that tips your hand and lessens the likelihood that your case will be successful.
Walter Cruickshank, the deputy director of Bureau of Ocean Energy Management, Regulation and Enforcement (BOEMRE), which replaced the Minerals Management Service in the wake of the spill, cited the investigations while parrying a question about whether or not the government should have approved, in the last two weeks, BP’s plans to drill up to four exploratory wells in the Gulf of Mexico and to bid on new oil leases in the Gulf in a December auction:
As of this time, BP is still legally qualified to hold a lease and to be an operator. You’re right, there are ongoing investigations. There are ongoing legal processes. I’m not going to guess how those turn out, but I think that both in the work we’ve seen in that exploration plan and in the work that BP has done over the past many months, that there’s certainly a strong effort on their part to perform better in the future than they have in the past.
The restrictions on sharing information that could be used in civil and criminal litigation are, in theory, logical and important, but the government often applies them unevenly, and perhaps unfairly. Mark Schrope, a freelance science writer and editor who is writing a book about the Gulf oil spill, said he contacted BOEMRE last May to request an interview related to the final capping of the Macondo well and the debate over whether or not to leave it capped. A public affairs officer declined his request, saying that with the ongoing investigation, the bureau’s staff was “not able to participate in media interviews at this time.” But the US Geological Survey (USGS) readily granted an interview with a scientist involved in the same events.
“There is some important context here,” Schrope said. “Since USGS is not a regulatory agency, they don’t face the same constraints. And because BOEMRE was so under fire because of questions about their drilling oversight, it’s easy to see why they would be very cautious about speaking publicly, or even clam up as they did with me. However, their message suggests that talking would somehow compromise the litigation, and if that were the case then the same should be true for USGS. So, it seems clear that they were/are hiding behind that to avoid participating in public discussion. Again, I understand the motivation for that, but it doesn’t necessarily make it a healthy policy.”
Such inconsistencies notwithstanding, journalists do have to respect the investigative process when the authorities are making an honest and concerted effort to catch the bad guys. During a panel dedicated to the topic of the enforcement of environmental laws, I asked Mike Fisher, the acting deputy director of the Environmental Protection Agency’s Office of Criminal Enforcement, Forensics and Training, about ways that the press can dig into, and shed light upon, ongoing investigations.
“The way to best address the issue, from my perspective as somebody working inside the criminal justice system, is not the way you sometimes see on cop shows, where you’ve got a detective who’s kind of slipping information to somebody who writes the story,” he said, “but rather for you all, and for us, to explain what portions of the process are public information.”