[Hutchinson]  What We Can’t Do About BP

by Earl Ofari Hutchinson
June 16, 2010

Former Secretary of State Colin Powell minced no words in an interview with ABC News recently. Powell said President Barack Obama should muscle BP aside and move in with “decisive force.” The general had one thing in mind: military-type response and seizure of the operation.

Powell thinks and talks like a hard-nosed military man, so his demand for a military solution to the BP spill is understandable. Powell didn’t say how the government, let alone the military, could cap the runaway well and insure that it stayed capped.
But Powell and the wave of media pundits, politicians, and much of the public still shout at Obama to impose a total government takeover of the operation. The shout is futile and wrongheaded. Obama’s critics shout it at him in part out of ignorance about what the government can do and, in part, to beat up on him.

When a hazardous substance poses a major threat to the health and well-being of U.S. citizens, the president can invoke provisions of the Clean Water Act and the Oil Pollution Act to take full charge. But the BP spill is in international waters and, technically, federal law doesn’t apply. Even if the government makes the compelling legal case that the BP spill poses a grave enough threat for government agencies, the military or both to step in, then what? Every credible military expert that has weighed in on what the military can do if it were called on to take over the capping and control of an errant off-shore drilling operation has said that the military would be totally lost. Its deep-sea technical capability and undersea imaging technology is too limited and untested in this kind of complex, intricate and uncharted operation.

Every scientist, engineer and technician that’s weighed in on the spill has said that the bitter pill the public must swallow is that BP created the problem and, despite its flop so far in fixing it, has the technology and expertise to do the job. The military and government agencies can take over containment, cleanup and construction. And the government has dispatched more than 20,000 responders, dozens of ships and floating operation stations that are doing those functions.

What government agencies can do is bar any company that engages in fraudulent, reckless or criminal conduct from doing any business in the form of contracts, land leases, drilling rights or loans with the government. Given BP’s well-documented nose thumb at safety rules that have cost dozens of lives, and maimed and injured many others, the pile of lawsuits, settlements and massive civil fines against it, and the red-faced lies and half truths its officials have told regulators and investigators about its operations, a solid case could be made that the government can and should bar BP from government business.

But there are problems with this, too. BP is the largest oil and gas producer in the Gulf of Mexico, and operates some 22,000 oil and gas wells across the country. It is a top supplier of fuel to the U.S. military, and employs thousands in its operations and subsidiaries. The disbarment process would take at least a year, and BP, the military or—incredible as it sounds—another government agency can claim in court that disbarment would pose a monumental national security risk.

This is not academic speculation. In times past when BP came under fire for legal and environmental malfeasance, these were the concerns raised, and the talk of disbarment quickly fizzled. Then there’s the clamor for indictments and jail. Attorney General Eric Holder says he’ll look seriously at criminal charges against BP. But it would take months, perhaps years to build a case that BP executives willfully intended to commit the violations. That’s a nearly insurmountable legal bar.

The best that we can hope for are hefty civil penalties, fines and settlements. That’s been the case in the past with Exxon and BP, and the oil giants didn’t miss a beat. They were back to business as usual in short order.

The BP spill is not solely about what Obama can or should do. The catastrophe is a political grenade that Sarah Palin, the GOP, tea party activists and the pack of right wing talk jocks have eagerly tossed at Obama to tar him as a weak, ineffectual leader, and to grab more seats from the Democrats in the November elections.

If Obama had declared a national security emergency when the first drop oozed out of the well, sent in the troops and clamped the cuffs on BP executives, the Obama bashers would have screamed “dictator,” “heavy-handed government interference,” and “socialist takeover.” When that didn’t happen, they dredged up the phony Katrina-Bush bungle comparison and reamed him for being cautious, vacillating and sending out mixed signals.

The BP spill is the perfect storm of political one-upmanship and environmental catastrophe. This insures that the shouts for Obama to do what he can’t do—muscle BP aside—will get even louder.

Earl Ofari Hutchinson is an author and political analyst. His new book is “How Obama Governed: The Year of Crisis and Challenge” (Middle Passage Press).

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