Friday, June 18, 2010

Why President Obama will declare an emergency or disaster for the BP spill

Okay now almost two months in and no Stafford Act declaration. IMO there will eventually be one even thought such a declaration will not be made now for erroneous legal reasoning again by DHS and DOJ attorneys and even though it will document the incompetence of the Obama Administration in the time it took to reach the conclusion that such a decision was necessary.
There are major gaps in the NCP plan published at 40 CFR Part 300. To be detailed later on this blog. In an absolutely fascinating report mandated by statute and orchestrated on behalf of President Clinton by the Administrator EPA a truly astonishing review of gaps in HAZMATS planning, preparedness, and response was completed and transmitted to Congress. Probably one of the truely important reports ever issued by the Executive Branch post Bophal by the US government it had or has two major defects. First it was issued long before such reports were made available virtually and even now is no longer available. I distributed almost 200 hard copies in FEMA when I learned that it had been completed and transmitted to Congress. Second it failed to distinguish between what could be fixed adminstratively and what required legislation. Even today it remains the bible for picking holes in HAZMAT response capabilities and should be required reading for all involved in the oil spill response.

See " A REVIEW OF FEDERAL AUTHORITIES FOR HAZARDOUS MATERIALS ACCIDENT SAFETY", December 1993, EPA-R-93-002. FEMA was a signatory to this report although by lower level officials and not the Director FEMA. Unfortunately, not many issues or policies identified were addressed in the publication of 40 CFR Part 300 in September 1994.

Why this background? Because this is all post the EXXON VALDEZ event discussed previously on this blog and elsewere. Also post the Oil Spill Pollution Control Act of 1990!

So why the prediction that President Obama will eventually make a declaration for the BP Spill? Simple! Language presently contained in Section 217(a) of the Stafford Act which became law November 23, 1988, and even though no declaration was made for EXXON VALEDZ.

The language of that section follows and is set forth below:

(a) party Liable--Any person who intentionally causes a condition for which Federal assistance is provided under this Act or under any other Federal law as a result of a declaration of a major disaster or emergency under this Act shall be liable to the United States for the reasonable costs incurred by the United States in responding to such disaster or emergency to the extent that such costs are attributable to the intentional act or omission which caused such condition. Such action for reasonable costs shall be brought in a United States district court."

While some might argue whether this event was caused by intentional act, the theory of statutory construction as expounded by Sutherland among others indicates that additional words do in fact and in law have additional meaning. Thus my emphasis on the words "costs attributable to the intentional act or omission which caused such condition"! It would be interesting to know whether DOJ/OLC or anyother trial division in DOJ has opined on this language. While other may differ, the delay in declaration will in fact eventually occur and the sooner the better if the best interests of the citizens of the Gulf are the litmus test. After all we trust the cop on the beat not to shoot at a fleeing perp melding into a crowd because we make the cost benefit analysis of the many over the liklihood that catching the perp and adminstration of justice might be delayed or even allowed to let the perp go free. Is this a standard too high for our President who is charged under Article I Section 8 once Congress has acted to promote the General Welfare as the Chief Executive under aRticle II Section 1 of the Constitution.

Time will tell if this prediction is accurate!