‘Case of the Week’ 2 (Stoa): Advisory Councils

Important Disclaimer: We pretty much just throw these together over the weekend, and don’t put a lot of work into them. Case of the Week cases are not subject to the same editorial process and stringent quality standards as the COG 2013 sourcebook, and are frequently contributed by non-COG authors. You may find material and sources in these cases that would not appear in the sourcebook. That said, we hope these cases will be useful to you; enjoy!

About the Author: Dr. Doyle Srader is Associate Professor of Speech and Communication at Northwest Christian University, where he directs the forensics team. His video blogs and other resources for NCFCA and Stoa competitors can be found on NCU Speaking Beacons Facebook page.

1AC: Regional Citizen’s Advisory Councils

By Dr. Doyle Srader

NOTE: Longish; slower speakers will likely run out of time. Trim to taste.

We open the debate with a quote attributed to Albert Einstein: “The world is a dangerous place to live; not because of the people who are evil, but because of the people who don’t do anything about it.” Because we do not wish to be counted among them. my colleague and I stand Resolved: That the United States Federal Government should substantially reform its marine natural resource policies.

We open the debate with our goal and criteria, which are explained by Land Use attorneys Martha Black and Ellen Kohler in 2004:

Public participation has become a standard aspect of environmental legislation at the federal and state level. These processes can range from public notice and comment on agency actions, to holding public hearings, to seeking public input through advisory committees, and to participating in mediations or negotiations. Regardless of how public participation is incorporated into the decisionmaking process, the general goal of such processes has been described as “democratiz[ing] the decision-making process by increasing the quantity and quality of public influence.” A United Nations Convention states that better access to information and public involvement in decision-making “enhance[s] the quality and the implementation of decisions, contribute[s] to public awareness of environmental issues, give[s] the public the opportunity to express its concerns and enable[s] public authorities to take due account of such concerns.” In their evaluation of over 239 case studies entitled Democracy in Practice: Public Participation in Environmental Decisions, Thomas Beierle and Jerry Cayford define the success of public participation processes in democratizing environmental decision-making in terms of achieving five social goals:

1. Incorporating public values into decisions;

2. Improving the substantive quality of decisions;

3. Resolving conflict among competing interests;

4. Building trust in institutions; and

5. Educating and informing the public.

(Wayne Law Review, Summer, pp. 221-222)

That brings us to our first stock issue:

Part 1: Inherency

One particular area of environmental protection falls short of this goal: efforts to regulate oil shipments to prevent accidental spills are caught up in what Boston College law professor Zygmunt Plater calls a di-polar arrangement. The two poles are the oil companies and the government regulators. Ideally, regulators should oversee oil companies’ deployment of safety measures, but as professor Plater explains in 2011, the two sides have arrived at an unofficial sweetheart deal, which defeats safety measures and guarantees catastrophic oil spills in the future:

The standard governance design in modern society, including governance of megasystems like the oil production and transportation sphere, is implicitly a “di-polar” arrangement—a public-private societal governing structure comprised of two theoretically counter-balancing establishments. On one side are the industry players in the marketplace, generating jobs, technology, wealth, and political power. On the other side are regulatory agencies, state and federal, tasked with monitoring the industry and protecting the public from industry’s market failure externalities. As the Exxon Valdez spill revealed, however, and as decades of political scientists have described as “iron triangles” and “agency capture,” the counter-balancing “poles” too often incline centripetally into each other. The industry and agency players are too easily pulled together into a combined culture of complacency, collusion, and neglect. The major oil spill calamities in the two Gulfs have demonstrated that the standard di-polar governance model for oil megasystems produces a complex but poorly coordinated, insufficiently vigilant, risk-prone plexus that cannot be relied upon for human or ecological safety. This failing is only multiplied as drilling pushes ever farther and deeper to develop hydrocarbons.

(Boston College Environmental Affairs Law Review, vol 38 #2, pp. 3-5, http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=1353&context=lsfp)

The 2010 Deepwater Horizon spill in the Gulf of Mexico brought calls for reform, including increased public participation, but those reforms are currently stalled in Congress, as Christina Santarpio, managing editor of the Boston College Environmental Affairs Law Review reports in 2013:

While calls to implement RCACs in the Gulf of Mexico in the wake of the BP Deepwater Horizon blowout resulted in their inclusion in proposed bills, Congress has not enacted such a bill. Almost immediately following the Deepwater Horizon disaster, both Democrats and Republicans in the Senate introduced bills responding to the oil spill. Both bills primarily addressed liability issues and what party should have to pay response costs in the event of an oil spill. The Senate, however, was unable to agree on a final version of either bill and did not pass a law.

(February, p. 322, http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=2100&context=ealr)

The dysfunctional relationship between the oil industry and its regulators, combined with the lack of forward movement on reform efforts, exposes the world to terrible risks, which brings us to our second stock issue, that of:

Part 2: Harms

Oil spills exact a nightmarish toll on the ecology and the economy, as Eric May, lecturer in Natural Sciences at the University of Maryland, described in 2010:

The damage to key commercially important species such as blue crabs, shrimp, drum and others could be immense. Beyond the direct economic threat to the commercial fishing industry, the protracted damage will extend to the stability of the communities which depend on the income from the industry. The recreational fisheries will be similarly affected along with a myriad of businesses that depend on the recreational anglers for their economic future. As a consequence of the Gulf of Mexico oil spill, the “what ifs” are staggering. What if a similar spill occurs off the mouth of the Chesapeake Bay, and equally sensitive ecosystem as the Gulf of Mexico? What if a similar species occurs off New Jersey or Delaware where highly sensitive systems of coastal lagoons exist? As we promote oil exploration, and we will, let us also consider the ecological risks associated with such activities and how we can be ready for them.

(Testimony Before The Senate Committee on Environment and Public Works Economic and Environmental Impacts of the Recent Oil Spill in the Gulf of Mexico, May 11, p. 7)

The cozy relationship between government and industry minimizes hassle for the regulators, and guarantees profit for the companies, while channeling all the consequences at innocent people who depend on marine ecosystems for their livelihood, which is blatantly unjust. E. A. Barry-Pheby, who holds a Master’s Degree in Legal Studies from Manchester Metropolitan University, argues in 2013:

The Deepwater Horizon and Exxon Valdez disasters illustrate the level of damage that oil pollution can cause to local fishing and tourism industries, sustainable lifestyles and the environment. Despite a $ 2.5 billion clean-up operation, less than 10% of the spilled Exxon Valdez oil was recovered from the water and shore. Twenty years later, the damage to organisms and their marine environment is still apparent. Immediate sizeable effects from the Exxon Valdez spill were obvious, with estimated mortalities of 2,800-5,000 sea otters, 250,000-700,000 seabirds, 300 harbour seals, 250 bald eagles, 22 killer whales and billions of herring and salmon eggs. Indigenous peoples state that both the offshore industry and central governments do not adequately consider their lack of economic benefits, or the potentially devastating risks they face: This is at odds with the distributive element of environmental justice.

(Sustainable Development Law & Policy, vol 13, p. 53, http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1529&context=sdlp

To address this injustice, we propose the following

Part 3: Plan

Mandates:

1. Regional citizens’ advisory councils shall be formed for all communities impacted by offshore oil drilling and oil shipments.

2. Membership and subject matter jurisdiction will follow the same guidelines used in the Prince William Sound and Cook Inlet RCACs established in the Oil Pollution Act of 1990.

3. The councils shall have subpoena power as well as authority to issue binding rules when collaborative efforts break down.

Funding: Oil companies shall fund the councils as a condition of approval of their contingency plans, and the funding level shall be set by the Interior Department’s Minerals Management Service.

Enforcement shall be through normal means.

We reserve the right to clarify any ambiguities.

Our third and final stock issue is:

Part 4: Solvency

First, a brief explanation: a regional citizens advisory council is a committee made up of people who live in the affected area, who research new safety measures and make recommendations for safety improvements. Two modestly successful RCACs have operated in Alaska since shortly after the Valdez spill, but adoption of our plan is needed to unleash the full potential of regional citizens advisory councils, as Christina Santarpio, previously cited, argues in 2013:

The development and expansion of RCACs is a crucial next step that the federal government must take in the prevention and mitigation of future oil spills. The two existing RCACs in Alaska provide both a compelling argument for the potential of these innovative citizens’ groups and a clear example of what steps must be taken to improve them. Since the creation of RCACs in 1990, the two Alaska councils have collaborated in creating new policy guidelines and regulations for safe oil transport in the area, disseminated a significant amount of knowledge to the public about the oil industry in general, and become a significant source of research and information designed to address the threat of future oil spills. This structure, however, has the power to do more. It is clear from the recent BP Deepwater Horizon blowout in the Gulf of Mexico that the systematic problems evident in the oil industry have not disappeared. Citizens have always played a role in environmental regulation and litigation, but through the inventive structure of RCACs they could have a much more meaningful role in monitoring the relationship between the oil industry and the government and ultimately protecting the environment. If RCACs expand, Congress must make three significant changes to their structure to ensure their success moving forward. First, they must have subpoena power over the oil industry so they are not forced to rely on oil company cooperation. This check on the industry would enable the RCACs to make meaningful recommendations, perform important research, and create an incentive for the industry itself to self-police. Second, while funding for RCACs can and should remain the responsibility of the oil industry, the process of negotiating the amount of funding must be removed from the day-to-day operations of the RCACs. Otherwise, as illustrated by the Cook Inlet RCAC, there will be well-founded criticism of the councils’ actions and general distrust of board members’ motives. Finally, and most importantly, RCACs must be allowed to expand from their existing advisory function. Forcing the oil industry to heed their advice by conditioning acceptance of contingency plans on a system in which the oil companies review and respond to that advice is the only feasible way to ensure that these RCACs can accomplish their goal of preventing future oil spill disasters.

(February, pp. 332-333, http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=2100&context=ealr)

This would eliminate the dipolar arrangement, enabling safety measures to contain the risk of oil spills. Professor Plater, previously cited, explains in 2011:

Institutionalizing the presence of independent at-risk citizen monitors, funded by the implicated industries, fundamentally changes the centripetal tendency of di-polar industry-agency structures, opening them to transparency, increased compliance, and care-enhancing public awareness. Adding this third leg to the di-polar default format for governance shifts the governmental geometry toward a Jeffersonian multicentric pluralism, where affected interests that were previously marginalized now are able to be actively involved in the governance process.

(Boston College Environmental Affairs Law Review, vol 38 #2, p. 26, http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=1353&context=lsfp)

This would also fulfill the goal of optimizing public participation, as Felicia Barnes, who holds a JD from Georgetown Law School, explains in 2012:

RCACs can serve many functions. They can increase representation of citizen interests, enable incorporation of citizen values into the decisionmaking process, allow multiple citizen interests to come together and form coalitions, create additional information by sponsoring research, increase trust between citizens and government and/or industry, and enhance communication between government and/or industry and citizens. Perhaps the most important function of an RCAC, however, is the one that makes it unique: it provides a forum for detailed discussions among citizen interests, government, and industry. This function is particularly important in oil and gas regulation, in which many of the relevant issues are highly technical, but for which accidents can have widespread effects.

(Georgetown International Environmental Law Review, Winter, p. 170)

We’ll close with the words of Pastor Harry Emerson Fosdick: “Democracy is based upon the conviction that there are extraordinary possibilities in ordinary people.”

Backup: Citizens Advisory Councils

TOPICALITY

It’s a substantial reform

Christina Santarpio, managing editor, Boston College Environmental Affairs Law Review, 2013 (February, p. 302, http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=2100&context=ealr)

The present system did not provide a significant enough deterrent to prevent oil spills, and thus the Commission called for a complete reform. Fundamentally, the Alaska Commission found the spill was almost a certainty: “Success bred complacency; complacency bred neglect; neglect increased the risk—until the right combination of errors finally led to an accident of disastrous proportions.” Although particular spills could be addressed individually, the Alaska Commission’s report called for a complete overhaul, aimed at the systemic reduction of risk, so that similar situations would not repeat and result in another spill. The Alaska Commission recommended citizen supervision of specific government agencies because failures in the oil transportation industry directly harm citizens. In contrast, the oil industry primarily concerns itself with profitability and supports deregulation due to competition in the market, and thus often directly opposes environmental safety measures. To that end, the Alaska Commission specifically recommended the creation of a citizens’ advisory council to supervise the transportation of oil, gas, and any other hazardous substance.

INHERENCY

Megasystems are different – their internal dynamics ensure future accidents

Zygmunt Plater, professor of law, Boston College, 2011 (Boston College Environmental Affairs Law Review, vol 38 #2, p. 5, http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=1353&context=lsfp)

Here is the apparent syllogism: the greater the size, complexity, and technical sophistication of the elements of a megasystem, the greater the risk of mega-catastrophe— and the greater the need for extreme vigilance in design, coordination, and operation. Yet the bigger such megasystems become, the harder it is for corporate managers and government agencies alike to see, keep track of, and manage the cumulative mass of critical points of risk. Likewise, the bigger the megasystem, the greater the daily internal economic and political pressures to maximize short-term benefits, and, perversely, to fractionalize vigilance.

Inherency for subpoena power

Zygmunt Plater, professor of law, Boston College, 2011 (Boston College Environmental Affairs Law Review, vol 38 #2, p. 24, http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=1353&context=lsfp)

The Alaska experience, however, has demonstrated some intrinsic challenges to effective representation of societal interests external to dipolar industry-agency governance. First is the lack of subpoena power. Lobbyists in Congress successfully blocked subpoena authority for the RCACs in OPA-90, just as they blocked the grant of subpoena power for the current 2010 Commission.

HARMS

Spills devastate the environment and the economy

David Styles, lecturer in carbon footprinting, Bangor University, 2010 (Regina Leader-Post, p. B7)

On April 20, the worst environmental disaster in recent memory took place when the uncontrolled release of crude oil on the Deepwater Horizon offshore oil platform in the Gulf of Mexico caused a devastating explosion. The oil spill has resulted in many injuries, deaths and billions of dollars in lost product and market investment. With literally thousands of barrels of oil being released into the water daily, there are also serious repercussions concerning the environment. The Gulf Coast is in dire straits when you consider the wildlife inhabiting these waters. Fish, dolphins, whales and birds are negatively impacted as many of these sea-dwelling creatures could perish and the ecosystem will take years, or possibly decades, to return to its former self. A chance that the oil spill could spread into the Atlantic Ocean is even more frightening to imagine. Marine wildlife is abundant throughout the Gulf Coast and the fishing industry in this area is expected to suffer a heavy loss, especially with shrimp and oysters being a popular item for export. Ultimately, nothing good accompanies this oil spill. Financial losses in tourism and fishing, ecological consequences and the cost of cleaning up such a disaster all top the list of consequences. When a crisis like this occurs it makes a person wonder, “Is the risk worth the reward?”

Without an effective external check, oil companies respond to spills with chemical dispersants, which makes things a thousand times worse

Zygmunt Plater, professor of law, Boston College, 2011 (Boston College Environmental Affairs Law Review, vol 38 #2, pp. 16-18, http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=1353&context=lsfp)

Dispersants were targeted by the Alaska Commission as deeply problematic, but are nonetheless strongly favored by industry for a variety of salient reasons. Dispersants are cheaper in terms of out-of-pocket costs to the spiller than removal actions. Perhaps even more compelling, dispersants are “optically” preferable: they play a key role in the “out-of-sight, out-of-mind” response strategy. If oil can be sunk beneath the surface and broken up into billions of small suspended droplets, it becomes invisible, lessens the images of fouled beaches and dying wildlife, and its existence can be doubted and denied. By discharging a torrent of dispersants a mile below the surface, the objective is to prevent much of the oil from ever reaching visibility at the surface. However, if oil does reach the shore, dispersants can, to some extent, achieve surface cleaning. In Alaska, high-pressure spraying of dispersants on stony beaches was a major objective for Exxon in creating news video of successful post-spill cleanup. But dispersants have serious destructive effects when released into the environment, and not just for wildlife. In Alaska temporary workers hired to spray dispersants on Prince William Sound and on the beaches reported a litany of physical effects from exposure to backspray. “We’re peeing blood,” the author was told, “We can’t let the foremen know or they’ll send us home to Texas, but if it’s doing this to us, what’s it doing to the places we’re spraying?” In Alaska today, beaches that had been sprayed with dispersants reportedly demonstrate greater continued ecological damage than beaches that were never “cleaned.” Down on the Gulf of Mexico there are not only reports of dolphins dying with bloody hemorrhages around their blowholes and in their internal organs, but dispersant workers have started to pass blood in their urine, as well. Dispersants in the water column not only kill marine mammals, fish, and other larger life forms, but may have even greater long-term ecosystem effects. The BP Deepwater Horizon blowout occurred at the Gulf of Mexico’s season of maximum larval production for fish, shellfish, and the myriad smaller life forms that support the fecundity of the Gulf. Dispersants make the oil miscible, hanging in subsurface curtain plumes of tiny droplets of heavy oil-cum-dispersant that can directly contaminate or be consumed by whatever they touch. “Clouds of larva, billions, even trillions of them, are drifting in that water column,” a federal biologist told the author. “They move up and down according to temperature and light, and when they hit those plumes of suspended subsurface oil, it’s all over for them.” The genetic damage to ecosystems in Alaska is still tangible. Herring populations and the major Alaska herring fishery have never recovered, and Prince William Sound’s primary pod of orca killer whales has not had a successful reproduction since the spill.

SOLVENCY: PLAN MECHANISM

RCACs can be expanded into new areas

Zygmunt Plater, professor of law, Boston College, 2011 (Boston College Environmental Affairs Law Review, vol 38 #2, pp. 21-22, http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=1353&context=lsfp)

RCACs—authorized in OPA-90 but limited to Alaska waters by Capitol lobbying—have become a significant but largely unheralded product of the Exxon Valdez disaster. The RCAC model could well be integrated into a post-Deepwater Horizon management system for the Gulf and other oil production areas.

The plan removes RCACs barriers to success, enabling them to prevent future spills

Christina Santarpio, managing editor, Boston College Environmental Affairs Law Review, 2013 (February, p. 300, http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=2100&context=ealr)

The three biggest limitations of the two Alaska RCACs all stem from their formation: lack of subpoena power, limited advisory function, and reliance on the oil industry for funding. This Note argues that with the removal of these barriers, RCACs could play a significant role in monitoring the oil industry and ensuring that tragedies such as the BP Deepwater Horizon blowout and the Exxon Valdez oil spill never happen again.

Granting RCACs subpoena power solves

Christina Santarpio, managing editor, Boston College Environmental Affairs Law Review, 2013 (February, pp. 330-331, http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=2100&context=ealr)

The final essential element of the RCACs, which requires attention and improvement, is their lack of subpoena power over the oil industry. Currently, the CIRCAC has no recourse to compel companies to provide it with paperwork or allow its members to inspect facilities, and the advance notice requirement significantly limits the PWSRCAC’s power as a watchdog. As the Alaska Oil Spill Commission and National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling (“BP Commission) (collectively, the “Commissions”) suggested, the subpoena power is an important and necessary part of a successful RCAC, and this power is one of the only ways the councils can actually influence the decisions of the oil industry. Going forward, Congress must give RCACs power to compel oil executives to cooperate fully with their demands, especially because the Commissions cited this as one of the most prominent causes of both oil spills.

Making RCAC rules binding is inherent and would solve

Christina Santarpio, managing editor, Boston College Environmental Affairs Law Review, 2013 (February, pp. 329, http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=2100&context=ealr)

To give RCACs a more authoritative voice in directly affecting policy changes, an improved statute must remove the advisory function limitation and replace it with actual decision-making power. The current system severely handicaps the RCACs’ ability to accomplish anything beyond research and gathering data, unless the councils are willing to work with other groups and those other groups are willing to cooperate. The oil industry must fund the RCACs to obtain approval of their NCP; requiring the industry to implement RCAC recommendations for NCP approval as well, would provide an effective way to force the industry to take note of RCACs. It is unlikely, however, that the oil industry would allow such a provision to pass in a federal statute.

Christina Santarpio, managing editor, Boston College Environmental Affairs Law Review, 2013 (February, p. 329, http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=2100&context=ealr)

The current system limits the powers of RCACs to the extent that the oil industry and government may completely ignore RCAC recommendations unless the political climate makes it favorable not to do so. The most feasible way to avoid this pitfall is to force the oil industry and government to consider each recommendation from a RCAC and face tangible repercussions if they do not.

In the status quo, RCACs have to negotiate with the oil companies for their total budget; changing this makes them independent, and therefore stronger

Christina Santarpio, managing editor, Boston College Environmental Affairs Law Review, 2013 (February, pp. 329-30, http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=2100&context=ealr)

RCACs must also be granted more autonomy from the oil industry through improved funding structures. Independence is an essential part of RCACs, as their fundamental role is to provide a third source of input regarding the industry, not supplement an existing one.

SOLVENCY: PUBLIC PARTICIPATION

RCACs optimize public participation

Christina Santarpio, managing editor, Boston College Environmental Affairs Law Review, 2013 (February, pp. 332-333, http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=2100&context=ealr)

This structure, however, has the power to do more. It is clear from the recent BP Deepwater Horizon blowout in the Gulf of Mexico that the systematic problems evident in the oil industry have not disappeared. Citizens have always played a role in environmental regulation and litigation, but through the inventive structure of RCACs they could have a much more meaningful role in monitoring the relationship between the oil industry and the government and ultimately protecting the environment.

RCACs produce educated public citizens

Felicia Barnes, JD from Georgetown Law School, 2012 (Georgetown International Environmental Law Review, Winter, p. 170)

RCACs can serve many functions. They can increase representation of citizen interests, enable incorporation of citizen values into the decisionmaking process, allow multiple citizen interests to come together and form coalitions, create additional information by sponsoring research, increase trust between citizens and government and/or industry, and enhance communication between government and/or industry and citizens. Perhaps the most important function of an RCAC, however, is the one that makes it unique: it provides a forum for detailed discussions among citizen interests, government, and industry. This function is particularly important in oil and gas regulation, in which many of the relevant issues are highly technical, but for which accidents can have widespread effects.

RCACs improve enforcement and increase public trust

Christina Santarpio, managing editor, Boston College Environmental Affairs Law Review, 2013 (February, p. 321, http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=2100&context=ealr)

The BP Commission found that local officials’ exclusion from response planning had hampered the efficacy of the cleanup and led to citizen mistrust of the efforts. Groups enabling citizens to become more involved in prevention and response planning could “prevent industry and government complacency, and increase public trust in response operations.”

RCACs solve by educating the public

Felicia Barnes, JD from Georgetown Law School, 2012 (Georgetown International Environmental Law Review, Winter, pp. 180-181)

Because RCACs permit individual citizens to investigate issues in more depth, RCACs can serve a valuable role by allowing “citizens a chance to become informed about the issues before coming to conclusions, hence providing counsel to the agency which combines the citizens’ perspective with a thorough understanding of the situation.” This unique characteristic of RCACs is perhaps the strongest argument in their favor. Few other methods are available that can allow such detailed discussions between citizens and industry or government on highly complicated and technical subjects like offshore drilling or oil spill response. These discussions have two benefits as they both allow industry and government to obtain more useful feedback from citizens and educate citizens about relevant issues. This educational aspect can be a stepping-stone to enhancing an area’s preparedness because it creates a populace already informed of many of the intricacies and trade-offs involved in oil spill preparation and response.

RCACs solve public apathy by giving them a voice

Felicia Barnes, JD from Georgetown Law School, 2012 (Georgetown International Environmental Law Review, Winter, p. 181)

Engagement of local citizens would have the added benefit of creating a citizenry more able to respond to oil spills, which would both improve spill preparedness and potentially empower citizens. The Deepwater Horizon incident was frustrating for many Gulf citizens because not only could they personally do little to stop the oil, but they also felt as if government and industry were not paying enough attention to their plight or to their suggestions. An RCAC provides an avenue for citizen inclusion in oil spill preparation and response such that citizens can participate in relevant discussions before spills occur. An RCAC can also help citizens feel as if their concerns are generally being heard and given responses.

SOLVENCY: RCACs IMPROVE SAFETY

RCACs solve the di-polar problem

Zygmunt Plater, professor of law, Boston College, 2011 (Boston College Environmental Affairs Law Review, vol 38 #2, p. 5, http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=1353&context=lsfp)

The Commission’s innovative recommendation to create RCACs not only changed the public management perspectives of oil production and transport in Alaska, it also provides a potentially instructive model for managing oil production and other industrial megasystems in modern industrial democracies. Properly designed and implemented, RCACs provide a pluralistic structural design for governing, breaking up the centripetal tendencies of the usual agency-industry di-polar system.

Zygmunt Plater, professor of law, Boston College, 2011 (Boston College Environmental Affairs Law Review, vol 38 #2, p. 21, http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=1353&context=lsfp)

In addition to seeking “regulatory vigilance in government agencies” and “corporate attitudes that put safety first,” a prime innovation of the Alaska Commission, only partially integrated into OPA-90, was the proposed creation of institutionalized citizen watchdog councils— RCACs. These councils, made up of citizens representing interests that would be grievously harmed if risk-prevention and incident response measures fail, aim to break up tendencies toward complacency, collusion, and neglect within the industry-agency management model that characterizes the field. Integrated into several Commission recommendations, this structural reform innovation in effect pluralized the di-polar governance model. Citizen councils would strategically institutionalize a functional, informed viewpoint on operations and risk from the external perspective of potentially-impacted members of the public.

An RCAC would have prevented the Gulf oil spill

Zygmunt Plater, professor of law, Boston College, 2011 (Boston College Environmental Affairs Law Review, vol 38 #2, p. 24, http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=1353&context=lsfp)

Had there been a Gulf RCAC, with representatives of the inshore and offshore commercial fisheries, sport fishing, tourism and recreation, it is unlikely that the recent rarefied technology of deepwater drilling would have been issued a permit without either an environmental review, acknowledgment of the potential for spills reaching beaches and shores, a practicable contingency plan, basic geological data from BP, or even considering the possibility of a blowout. Institutionalized representation of at-risk citizen interests and communities creates a dramatic change in the “low level of vigilance and a discomforting level of comfort between the industry and…regulators.”

It doesn’t matter that members don’t start out with any expertise – RCAC members learn on the job

Gary Busenberg, professor of public affairs, University of Colorado at Denver, 2007 (Coastal Management, vol 35 #2-3, p. 240)

The trait that often distinguishes citizen advisory councils from other methods of citizen participation examined in the literature (such as public hearings or surveys) is the potential for long-term interactions between the council participants. These long-term interactions allow the participants in citizen advisory councils to engage in an extended process of mutual learning through recurring dialogue, thereby promoting well-informed participation in the technically complex issues of environmental management.

RCACs succeed in getting industry to adopt safety innovations

Gary Busenberg, professor of public affairs, University of Colorado at Denver, 2007 (Coastal Management, vol 35 #2-3, p. 249)

In many cases, these advisory councils have proven effective in securing the implementation of the policy changes they seek. In essence, the councils have operated as institutional learning arrangements (by promoting the application of new ideas and information to policy decisions in this system). The councils have therefore emerged as highly consequential institutional arrangements for the management of this system.

RCACs work collaboratively, guaranteeing compliance

Christina Santarpio, managing editor, Boston College Environmental Affairs Law Review, 2013 (February, p. 327, http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=2100&context=ealr)

Although the councils have been successful at implementing some policy goals since 1990, each example of a success involves collaboration with the industry or a government body, allowing the RCAC to extend beyond its advisory capacity. When RCACs work alone, they are rarely as successful. Most, if not all, of the successes of RCACs have been directly tied to their ability to work with other organizations to accomplish their goals. Many changes that the PWSRCAC takes credit for have come about through collaboration with the U.S. Coast Guard or the Alaska Department of Environmental Conservation (ADEC). For example, when the PWSRCAC implemented a new ice detection system in 2002, they did so with the help of the Coast Guard, Army, National Oceanic and Atmospheric Association, and ADEC. Similarly, improvements to the tug escort system through Prince William Sound, although supported by the PWSRCAC, were not fully implemented until the oil industry, the Coast Guard, and ADEC agreed to work with the Prince William Sound Council to produce a study. In these and other examples, the PWSRCAC essentially used these collaborations to circumvent their advisory function to accomplish their regulatory goals.

Gary Busenberg, professor of public affairs, University of Colorado at Denver, 2007 (Coastal Management, vol 35 #2-3, p. 250)

Collaborations have played a role in all of the eight project categories examined in this study. Indeed, the councils were able to secure the implementation of several policy reforms only through political support and funding provided by other organizations. The effectiveness of the councils in securing policy reforms therefore depends not only on their resources, but also on their collaborative capacities. Working within the context of existing legal and regulatory frameworks, the councils have participated in a series of collaborative efforts that have led to productive policy synergies in the marine oil trade of Alaska.

Gary Busenberg, professor of public affairs, University of Colorado at Denver, 2007 (Coastal Management, vol 35 #2-3, p. 240)

In many cases, the councils do not possess the resources (or political authority) necessary to secure the implementation of their policy proposals through unilateral action. In such cases, the effectiveness of the councils depends on their collaborative capacity (defined here as the capacity of the councils to build supporting networks of collaboration with other organizations active in their policy domains). This study reveals that both councils have greatly magnified their policy contributions by forming a series of multilateral collaborations with other organizations involved in the management of the Alaskan oil trade.

RCACs gain compliance through persuasion, not necessarily enforcement

Felicia Barnes, JD from Georgetown Law School, 2012 (Georgetown International Environmental Law Review, Winter, p. 178)

Although funding research does not always lead to the RCACs proposals being adopted, it provides an opportunity for the RCAC to be persuasive on the merits. A collaborative approach involving co-sponsoring research with industry or government can also obtain their buy-in when much of the disagreement concerns important facts.

Felicia Barnes, JD from Georgetown Law School, 2012 (Georgetown International Environmental Law Review, Winter, p. 187)

Funding also helps determine how persuasive an RCAC may be. An adequate budget allows an RCAC to fund activities necessary for an in-depth understanding of the many complex issues of oil spill prevention and response, not to mention the scientific and technical aspects of oil and gas operations generally. As previously discussed, funding allows an RCAC to hire consultants and create new information. Though this information may not always be persuasive, without it an RCAC certainly stands little chance of persuading industry or government to change their positions based on the factual merits of the issue.

A specific solvency example: geographic response strategies

Felicia Barnes, JD from Georgetown Law School, 2012 (Georgetown International Environmental Law Review, Winter, p. 177)

One of CIRCAC’s useful contributions has been the incorporation of geographic response strategies (GRS) into Alaska’s site-specific contingency response plans. GRS are map-based plans that highlight sensitive areas requiring special protection during an oil spill. Having already identified sensitive areas allows oil spill responders to use their time and resources more efficiently. By tying together “local knowledge of sensitive areas with proven operations and logistics into a document with specific guidance for rapid response . . . GRS . . . helps stakeholders and the public understand what actions may be feasible during a response.” CIRCAC initially brought the idea to use GRS to the Alaskan state government. At the time, Mike Munger, current Executive Director of CIRCAC, was employed in Alaska’s Department of Environmental Conservation. CIRCAC, together with industry, recommended GRS to Munger, and he enthusiastically relayed it to his supervisor. At the time, however, resources to implement GRS were insufficient so the state government could not act on CIRCAC’s suggestion. CIRCAC continued to advocate for GRS, later developing a pilot program to demonstrate its benefits. CIRCAC’s efforts successfully raised attention and interest in GRS. In 1998, PWSRCAC researched GRS and recommended Alaska adopt it in its site-specific response plans. The Alaska Regional Response Team then directed its Sensitive Areas Work Group to outline how GRS could be integrated into the contingency planning process, which brought about a workshop involving CIRCAC, PWSRCAC, federal and state government, and industry. The results of the workshop led to the Alaska Regional Response Team adopting GRS as part of the subarea contingency plans. Since then, more than 145 GRS have been developed and incorporated into Alaska’s state/federal contingency plan. Many of these GRS have been created using funds from CIRCAC and PWSRCAC. CIRCAC was critical to the adoption of GRS in Alaska due to its perseverance and ability to marshal support from important stakeholders, one of which was the better-funded PWSRCAC.

RCACs don’t have the conflicting demands that other institutions do

Felicia Barnes, JD from Georgetown Law School, 2012 (Georgetown International Environmental Law Review, Winter, p. 181)

RCACs are distinctive in their ability to focus solely on their mission because they need not worry about earning a profit or being overly inundated with comments from regulated entities. Their only function is to monitor the adverse environmental impacts of oil and gas activities and seek to diminish them. In this capacity, RCACs can provide useful follow-through on ideas or programs that industry or government may have overlooked or stopped pursuing. Both PWSRCAC and CIRCAC have achieved success through their dogged persistence in insisting an idea be taken seriously by government or industry.

Success with oil spills opens the way to use RCACs with other pollution problems

Christina Santarpio, managing editor, Boston College Environmental Affairs Law Review, 2013 (February, p. 325, http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=2100&context=ealr)

Properly formulated and implemented, RCACs have the potential to become an integral part of environmental enforcement of the oil industry, and could potentially be expanded into many different areas of environmental law. To do this, however, legislators must understand how to improve on existing citizens’ councils in the future by fully appreciating their successes and limitations.

A/T “RCACs cut into oil company profits, hurting the economy”

Turn – encouraging public participation in environment policymaking helps the economy for several reasons

Thomas Mullikin, JD from South Carolina Law School, Nancy Smith and Michael Champion, JDs from North Carolina Law School, 2005 (Georgetown International Environmental Law Review, Spring, p. 429)

There is another compelling factor driving transitional and developed States to embrace the concept of environmental public participation: it simply makes good economic sense. Capital investors generally recognize that the public’s ability to participate in environmental decision-making produces positive economic outcomes essential for successful development. Successful economic markets require a free flow of information. Because environmental public participatory schemes stress the importance of education and access to information, they facilitate the free exchange of information, thereby fueling investment, a crucial component of development. Perhaps most importantly, public participation mitigates economic loss by properly allocating the risks associated with development, including environmental risks, among all the parties involved. As such, transitional States and capital investors are beginning to implement environmental regulatory regimes and public participation as a means of achieving sustainable growth, allocating risks, and attracting investment.

Thomas Mullikin, JD from South Carolina Law School, Nancy Smith and Michael Champion, JDs from North Carolina Law School, 2005 (Georgetown International Environmental Law Review, Spring, pp. 396-397)

This paper advances a basic argument: environmental public participation rights are necessary to industrial development, and deliberate, effective, and well-reasoned economic growth can occur only after involvement of critical host-community stakeholders. Such rights should not be ignored by the governments of transitional States, nor should they be ignored by industry seeking to invest in those transitional States. Three factors support this position. First, and perhaps most importantly, there is a crucial nexus between the industrialization of society and the need for environmental regulation containing assurances of public participation in environmental decision-making. Where industrial development occurs, public apprehension and concern for the protection of air, land, and water eventually follow. As States move through the stages of industrialization, the resulting environmental stressors intensify concern for the protection of the environment among a public that ultimately bears many of the externalities of development. Failure to recognize this phenomenon and to include the public as participants in environmental decision-making will have long-term negative consequences on industry. Therefore, public support is crucial to continued and sustainable development. This “nexus” between public participation and successful economic growth is reflected in the historical experiences of developed and heavily industrialized States such as the United States and the States that make up the European Union. It is no coincidence that these States have created elaborate mechanisms for environmental public participation rights and have been the most successful at injecting those rights into broad, far-reaching environmental legislation. A study of this historical nexus demonstrates how public concern resulting from industrialization created the impetus for the current public participation schemes embedded in the environmental legislation of these developed nations. Second, both international and internal forces are compelling transitional States to secure environmental participatory rights for their citizens. International support for environmental participatory rights has resulted from the recognition that environmental public participation rights are a key factor for sustainable development. Many transitional States have bound themselves by treaty to include the public in governmental decisions regarding the environment. Further, transitional States are finding it increasingly difficult to secure funding and aid for development without adhering to at least some minimum international standard of public involvement in decisions concerning development projects. In addition to international pressure, transitional States increasingly face internal pressure to implement environmental public participation rights as a means to mitigate the potentially disastrous consequences of public discord (e.g., rioting). When the affected public is left out of the development process, transitional governments face potentially devastating consequences and long-term costs. The result is that transitional States have begun to recognize the importance of public involvement and are responding accordingly. Finally, transitional States and private industry should not ignore public participation rights because the creation of these rights attracts capital investors. Capital investors generally recognize that the public’s ability to participate in environmental decision-making produces positive economic outcomes essential for successful development. n16 Environmental public participation rights make good economic sense. Markets require a free flow of information. Investors like stability and seek proper risk allocation for their large capital outlays. When States implement public participation schemes, they facilitate information flow and ensure stability by creating a rule of law. As discussed above, the public’s ability to participate can also alleviate public discord and promote acceptance of large infrastructure projects, another key factor for market stability.

A few details on how the plan would work

Details of the RCAC membership in Alaska

Christina Santarpio, managing editor, Boston College Environmental Affairs Law Review, 2013 (February, p. 306, http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=2100&context=ealr)

The OPA sets forth guidelines for the membership of each RCAC, ensuring that they will be made up of Alaska residents (with voting power) as well as nonvoting representatives from federal agencies. The governor of Alaska appoints members from the general population, taking into account a need for “regional balance.” The Council must have a representative for a variety of local interests, including local commercial fishing industry organizations; aquaculture associations, Alaska Native organizations, environmental organizations, recreational organizations, the Alaska State Chamber of Commerce, and nearby municipalities. The nonvoting members are representatives of the EPA, U.S. Coast Guard, National Oceanic and Atmospheric Administration, U.S. Forest Services, Bureau of Land Management, Alaska Department of Environmental Conservation, Alaska Department of Fish and Game, Alaska Department of Natural Resources, and the Division of Emergency Services, Alaska Department of Military and Veterans Affairs. The governor appoints each voting member of an RCAC to
serve for three years.

Details of what RCACs do in Alaska

Christina Santarpio, managing editor, Boston College Environmental Affairs Law Review, 2013 (February, pp. 307-308, http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=2100&context=ealr)

The OPA outlines the duties of RCACs, which are generally to improve spill prevention measures and control the oil industry’s impact on the environment in the area. The RCACs advise their Oil Terminal Facilities and Oil Tanker Operations Association (“Association”) on potential policies, permits, or regulations that could have an effect on the local environment. In addition, RCACs monitor the environmental effects of terminal facilities, crude oil tankers, and the operation and maintenance of these facilities. The RCACs also review prevention and response plans for Prince William Sound and Cook Inlet, and may make recommendations regarding permitting standards, facility operations, tanker operations, and prevention and contingency plans in order to improve safety. If the Association does not adopt the recommendation of the RCAC, it must provide a reason for the rejection. The statute mandates federal agency cooperation with RCACs by requiring that agencies consult with the Councils about any potential agency action that could have an effect on permitting or certain regulations in Alaska. The consultation must include allowing the RCAC to review the changes and make relevant recommendations. However, in this relationship—as in their relationship with the Associations—the Councils’ roles are merely advisory.

Bonus: Negative Arguments

Public participation’s benefits are exaggerated

Yvonne Ridin, professor of geography at the London School of Economics, and Mark Pennington, professor of political science at Queen Mary and Westfield College, 2000 (Local Environment, volume 5 #2, p. 153)

Within the literature on environmental policy and planning, public participation is usually considered an unalloyed good. This emphasis on the inherent desirability of public involvement is part of a tradition which seeks to ‘open up’ planning processes to democratic scrutiny and to expand the scope of public involvement as an integral part of improvements in policy delivery. These claims over the merits of participation have tended, however, to sit awkwardly with accounts of the policy process which highlight a propensity towards special interest capture and bureaucratisation as the reality of participation in practice. Consequently, it is not always clear how expanding the scope of public involvement might actually lead to improvements in policy delivery.

They don’t solve the dipolar arrangement; industry and government both ignore them

Christina Santarpio, managing editor, Boston College Environmental Affairs Law Review, 2013 (February, pp. 319-320, http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=2100&context=ealr)

Both RCACs have experienced difficulty in implementing improved oil spill response systems. The PWSRCAC reviews contingency plans for the Prince William Sound, which are used for oil spill prevention and response by the oil industry. Under the OPA, every oil tanker operator must have a contingency plan if they intend to ship in the waters of Alaska. In 1994, the PWSRCAC developed a “standard protocol” for its review of contingency plans, and pursuant to this protocol, reviewed all existing plans that same year. Despite this, the Prince William Sound Council “has faced a generally unfavorable political context in attempting to enhance the contingency plans for the Sound.” Although the oil industry has improved their response plans since the Exxon Valdez spill, the PWSRCAC has lobbied for even more protections. ADEC has not funded PWSRCAC’s proposals, and has merely approved preexisting oil industry contingency plans—without ADEC’s support, the PWSRCAC has not sufficiently persuaded the industry to enhance the plans. Similarly, the CIRCAC has tried and failed to improve oil spill response systems in Cook Inlet. The CIRCAC, like the PWSRCAC, reviews all contingency plans for oil tankers in the region, and has developed standard reviewing protocols. As a result of these reviews, the Cook Inlet Council has proposed various policy changes that both the ADEC and the oil industry have ignored. Although the CIRCAC has called for more coordination between the government and oil industry in the planning process and the “incorporation of oil firefighting strategies into the contingency plans,” neither has supported the Council.

RCACs are darned if they do and darned if they don’t

Felicia Barnes, JD from Georgetown Law School, 2012 (Georgetown International Environmental Law Review, Winter, p. 178)

Oddly enough, these problems have stemmed from almost exactly opposite issues: PWSRCAC has been criticized for being overly confrontational, and CIRCAC has been lambasted for being overly accommodating. Without attempting to detract from these critiques, these contradictory problems demonstrate how narrow a line an RCAC must walk. If an RCAC plays too much of a watchdog role, it will be written off as extremist; if an RCAC is seen as being too close to government and industry, it will be perceived as a weak and ineffective rubberstamp.

The Coast Guard breaks off cooperation with RCACs if their oversight is too stringent

Felicia Barnes, JD from Georgetown Law School, 2012 (Georgetown International Environmental Law Review, Winter, p. 178)

In 1998, the Coast Guard considered conditionally recertifying PWSRCAC based partially on concerns that it was not acting consistently with the purpose of OPA 90. In fact, the Coast Guard proposed that “it is time to reexamine the PWSRCAC with respect to its ‘alternative’ status, and establish a [c]ouncil more in line with the requirements of OPA 90, Sec 5002.” PWSRCAC’s “counterproductive activity” included calling industry representatives liars during open meetings and reporting allegations of illegal activity by Alyeska to the state government. Some in the Coast Guard felt PWSRCAC’s actions were “not conducive to building the trust between the citizens and industry that the statute envisioned,” which evidences their strong viewpoint that the RCACs in OPA 90 were intended to be cooperative partners with government and industry, not watchdogs. Though the Coast Guard did not decertify PWSRCAC in 1998, the looming prospect of decertification has remained.

If the wrong members get on, public support evaporates

Felicia Barnes, JD from Georgetown Law School, 2012 (Georgetown International Environmental Law Review, Winter, p. 181)

RCACs are not guaranteed success, however. Seeking broad representation inevitably will involve some overrepresentation and underrepresentation of interests. If the interests are not chosen carefully, one perspective could become predominant and overpower different viewpoints. Such an RCAC could also have trouble obtaining citizen buy-in for the RCAC and citizen support for its recommendations.

RCACs will become power-hungry

Felicia Barnes, JD from Georgetown Law School, 2012 (Georgetown International Environmental Law Review, Winter, p. 181)

Further, if the RCAC is meant to function long-term, as the Alaskan ones have, it may inevitably be tempted to act in ways that increase its own power instead of acting in the public interest.

RCAC effectiveness is hard to measure

Felicia Barnes, JD from Georgetown Law School, 2012 (Georgetown International Environmental Law Review, Winter, p. 175)

Second, even if the purpose of an RCAC were perfectly clear, many success measurement problems still exist. Determining the efficacy of an RCAC is part revisionist history. This determination is especially difficult given that pre-spill and post-spill actions are not easily compared because the spill itself has had large impacts on attitudes regarding safety and environmental protection.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: