A Public Access Response to Failure


Powerlessness in the face of disaster is dispiriting. Powerlessness in the face of regulatory failure is fixable.

Despite our widespread ability to communicate online; to see, as a society, to the murky bottom of the Gulf in real time, we’re still in a suspended state of irrelevance to this slow motion disaster — transfixed and dazed, as Micah Sifry points out.

Unfortunately, the people formerly known as the audience are fundamentally still functioning as the audience.

This is true, in part, because the current situation is a failure of complex machinery, which is difficult for most of us to constructively relate to. We try, suggesting enormous rubber shower curtains, or pointing out the absorbency of hay. And perhaps the international community of oil rig engineers is collaborating well now — if so, I hope that story gets told.

Mechanical failure is palatable; regulatory failure is inexcusable.

There is, however, another failure here too, that takes less specialized skill to relate to. That’s the regulatory failure that has led to current situation. We have a complex set of regulatory mechanisms set up to keep this from happening, and they have failed, and miserably so. We’re only really relating to that regulatory failure only through traditional investigative journalism — to its credit, but also at all of our peril.

Every day brings a new kick in the stomach, as the New York Times, McClatchy, and many many others illuminate new parts of this failure.

And each time I read one of those stories, I feel the same way — amazed that it happened, and also amazed that we’re only finding out about it now.

For all of the national discussion about offshore drilling, how has no one reviewed the required plans before now to realize their apparent fakeness? How were federal regulators able to let the industry fill out their own inspection forms, to be later traced in pen?

How often are we letting them languish, unread, unexamined, and unchallenged, in the “regional field offices” of our public neglect?

Many of these “public” inspections, in turns out, were only public in a very limited sense, opening the door to neglect and abuse. The same holds for the plans companies need to submit before they drill — apparently public, but effectively out of reach, and, consequently, filled out thoughtlessly, failing to create accountability. (My initial research into those reports is attached at the the end of this post, and inspired me to write this.)

Many of these public accountability mechanisms rely on outdated techniques despite their central role in our regulatory system. Putting an important report in a regional field office doesn’t make it effectively available for public inspection. As we’ve now seen, it makes them effectively hidden — waiting in obscurity for weeks for real review, even in the face of the country’s largest environmental disaster.

That’s the spirit in which we’ve helped prepare the Public Online Information Act, or POIA, introduced by Rep. Steve Israel in the House — to require public reporting to be truly public, by forcing their publication online.

While the live view of the gushing oil is valuable, creating some accountability, and having what is probably an important psychological impact, we need a live view of the other mechanisms that failed us here too — our public protections in the form of regulations. I’m not talking about cameras on the helmets of oil rig inspectors (although the image is appealing at the moment), but about key public reports going online so that they serve their intended purpose.

These reports aren’t obscure, or pointless either. They’re absolutely central to the way we regulate industry activity, and that’s true across regulatory contexts. The SEC, FCC, FEC (etc) regulatory agencies each collect public information, not as a byproduct of their work, but as a central approach to doing their jobs. Read the Federal Election Campaign Act. Or the Outer Continental Shelf Lands Act (as I did below) — they’re largely accessible even if you don’t have a law degree — and you can see that these public reports were created as the pillars of public regulation. Public reporting empowers public regulation.

How often are we letting them languish, unread, unexamined, and unchallenged, in the “regional field offices” of our public neglect?

The administration, as they piece together the Interior Department and the Minerals Management Service, should use public scrutiny to everyone’s advantage, and start posting MMS information online — if it’s public, post it. There is probably much, much more to be examined than the recent news stories indicate.

As they retroactively illuminate our regulatory failure, the daily gut check from our newspapers includes phrases like “according to our review of certain MMS documents.” We should, instead, be saying “according to documents submitted yesterday by inspectors,” or, “according to a permit to drill submitted earlier this week by ___, and spotted by ___, a reporter for the Daily ___”.

Mechanical failure is palatable; regulatory failure is inexcusable.

That it takes a national disaster to spur us into effective oversight means we’ve got a long way to go before the public can effectively hold the government, and by extension, regulated industry, to account.

What follows are my notes as I researched the OCS Lands Act, and the reports it creates ineffective public access to:

Here’s a summary of what I found regarding the MMS reports I haven’t been able to find online anywhere yet.

1. The Outer Continental Shelf Lands Act (OCS Lands Act) sets policy regarding leasing and drilling.

pdf: http://bit.ly/d1T83m US Code (43 USC 1331 – 1356a) — http://www.law.cornell.edu/uscode/html/uscode43/usc_sup_01_43_10_29_20_III.html

2. 43 USC 1351 mandates that detailed “Development and Production Plans” (DPPs) be submitted to the Secretary (almost def. the Interior Secretary). I suspect that this detailed report would be immensely valuable to read, especially if one were done of the Deepwater Horizon well. I don’t know whether that well would be covered by the OCS Lands Act, or whether it’s different, although I suspect it’d be covered. Even if the current spill isn’t covered by this requirement, it’s likely that it’d be covered by other similar requirements.

3. The same law mandates that these reports are available to the public, after appropriate redaction, and within 10 days of receipt. (“online” isn’t mentioned.) Googling for them gets me nowhere.

4. The Regulations promulgated under the OCS Lands Act require that these DPPs be made available to the public at the “MMS Regional Public Information Office”, by the Regional Supervisor.

30 CFR 250.204 (PDF: edocket.access.gpo.gov/cfr_2001/julqtr/pdf/30cfr250.204.pdf )

5. The MMS site says that these required reports will also be called a Development Operations Coordination Document, or DOCD.


6. Googling for DOCDs and DPPs (the two names for the same required report) hasn’t been productive.

7. There are numerous other reports on the MMS site that could conceivably be some sort of excerpts of the DOCDs or DPPs, but they appear to be something else.

8. Guidance from MMS on how to prepare and submit those documents: http://www.gomr.mms.gov/homepg/regulate/regs/ntls/ntl03-g17.html

9. MMS’s information page: http://www.gomr.mms.gov/homepg/pubinfo/piindex.html (The DPPs don’t appear to be here either.)

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  • John,

    Don’t be amazed that this happened. Only through triple redundancy can failures be prevented.
    Here is a video of BP’s efforts on 5/24/10

    Don’t be surprised that regulations fell by the wayside. The federal Government gutted many agency during the first tens years of this century

    a google search of “Bush administration EPA”
    returns: #
    Survey Finds Bush Administration Interfering with EPA Scientists
    Apr 24, 2008 … EPA officials could not be reached for comment by press time, but agency statements indicate the Bush administration is not overly concerned …
    http://www.ens-newswire.com/ens/apr2008/2008-04-24-10.html – Cached
    Bush Administration: Carbon Dioxide Not a Pollutant
    Aug 29, 2003 … Had the Bush administration decided that carbon dioxide is a … The Clean Air Act says the EPA can regulate a substance if it comes from …
    http://www.commondreams.org/headlines03/0829-02.htm – Cached – Similar
    Bush-era EPA document on climate change released – Los Angeles Times
    Oct 14, 2009 … The Bush administration EPA draft was released in response to a public records request under the Freedom of Information Act by the …
    articles.latimes.com/2009/oct/14/nation/na-epa-climate14 – Cached – Similar
    Bush’s EPA Is Pursuing Fewer Polluters – washingtonpost.com
    Sep 30, 2007 … has dropped off sharply during the Bush administration, with the number of prosecutions, … according to Justice Department and EPA data.
    http://www.washingtonpost.com › Business › Business Policy – Similar
    Ozone Rules Weakened at Bush’s Behest – washingtonpost.com
    Mar 14, 2008 … Ozone Rules Weakened at Bush’s Behest. EPA Scrambles To Justify Action … stating there was a “robust discussion within the Administration …
    http://www.washingtonpost.com › … › Special Reports › Global Warming – Similar
    Bush regime environmental record – SourceWatch
    Mar 11, 2008 … “The Bush administration and Senate Republican leadership apparently don’t … It has sought to cut the EPA’s enforcement division by nearly …
    http://www.sourcewatch.org/index.php?title=Bush_regime... – Cached – Similar
    New EPA report puts Bush in environmental quandary / The Christian …
    Jun 7, 2002 … This may serve to mollify some on the political right who are upset at the Bush administration’s EPA report on global warming. …
    http://www.csmonitor.com/2002/0607/p02s02-usgn.html – Cached – Similar
    Former EPA chief Carol Browner accuses Bush Administration of …
    Mar 19, 2004 … BERKELEY – Former U.S. Environmental Protection Agency Administrator Carol Browner says the Bush administration is gutting the agency she …
    berkeley.edu/news/media/releases/2004/…/19_browner.shtml – Cached – Similar
    Bush EPA dilutes meaning of environmental justice | Grist
    Under the Bush administration, “the [EPA] changed the focus of the environmental justice program by deemphasizing minority and low-income populations and …
    http://www.grist.org/article/griscom-envjustice/ – Cached – Similar
    Bush Administration Believed to Be ‘Fast-Tracking’ Change in EPA …
    Oct 30, 2008 … Tags: administrative procedures act, air pollution, bush administration, epa, george w. bush, new source review …
    redgreenandblue.org/…/with-the-clock-ticking-lame-duck-bush-pressures-epa-to-relax-pollution-rule/ – Cached – Similar