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An unpublished study shows the surprisingly lethal effects of the Cosco Busan oil spill. Why are government scientists helping the ship's owner keep it a secret?

Wednesday, Feb 24 2010
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"For the shipping companies to have the inside track while this report is being prepared is not right," said Ernie Koepf, a veteran fisherman involved in the lawsuit. "We need to get to the truth, and have the truth stand on its own without anybody being able to throw rocks at it and think that the books were cooked."

Andrea Treece, a San Francisco–based senior attorney for the Oceans Program of the Center for Biological Diversity, said federal and state agencies' reluctance to share the document with the public other than the Cosco Busan ownership "flies in the face" of President Barack Obama's proclaimed emphasis on the openness of government records, and raises questions about the integrity of the research process.

"When they keep a study like that so close to their chest, and they won't even release it until they're forced to by a FOIA, that just doesn't look good," said Treece, who is herself a former federal employee, having worked at the U.S. Environmental Protection Agency. "It's a scientific document, and it's important to let everyone see it who was affected by the spill and is trying to understand what happened. If what the agency is interested in is putting together a sound restoration plan, then of course you should go out and get public comment from everybody that's interested."

Rainer Hoenicke, an environmental scientist who heads the nonprofit San Francisco Estuary Institute, said he was likewise puzzled at the secrecy surrounding the 2009 toxicity study.

"It's perfectly fair for the defendants to look at the information," he said. "What is strange in this case is that the agency, in this case [the state department of] Fish and Game, wasn't willing to release the report that was finished. I would say that the public has the same right as the defendant to look at the data — and not just the data, but the interpretation and analysis — at the time they came out."

Despite such criticisms, the process used by government officials in the Cosco Busan research is in line with federal law. Answers to the question of how it came to be this way begin with the aftermath of an environmental catastrophe on a far grander scale than the crash of the Cosco Busan.

When the Exxon Valdez oil tanker struck Bligh Reef in 1989, emptying nearly 11 million gallons of crude oil into Prince William Sound, the result was not only an environmental tragedy, but a political uproar. Washington legislators made a show of getting tough on the multinational oil and shipping companies that plied American waters, and in 1990 passed the federal Oil Pollution Act, a landmark regulatory bill.

Among other provisions, the law required shipping companies to draft detailed plans for handling potential oil spills, and established a national trust fund — paid into by these companies — for cleanup costs.

But the bill was not an unalloyed crackdown on the industry. In fact, it established a regulatory system that critics say is extremely friendly to the companies responsible for polluting our oceans — one that has had important consequences in the investigation into the ecological damage caused by the Cosco Busan.

Forcing a corporation responsible for an oil spill to pay for cleaning up its own mess would strike most reasonable people as fair. Accordingly, the Oil Pollution Act created a "cooperative" investigative procedure that foists the expense of studying and then restoring environmental damage onto the party responsible for the spill.

But the assessment process places significant power in the hands of the polluter beyond the power of the purse. The "cooperative" company is allowed to oversee federal and state research into how much harm the spill did to the environment, help design scientific experiments, and influence the contents of government reports describing environmental damage before the information is released to the public. This route has been taken by the government in the Cosco Busan oil spill.

There are several advantages to the process, according to government officials. It avoids costly and time-consuming court battles. The polluter pays for the research, which provides a funding source for cash-strapped government scientists. And, perhaps most importantly, it speeds the creation and enactment of a plan for healing the environmental damage that has been done. "It gets you to restoration quicker, and you don't actually have to litigate," said Plaisted, the NOAA attorney.

"It has its problems," said one government official, who spoke on condition of anonymity so as to discuss the process candidly. "It takes a long time, and there's a lot of negotiation, and there's a lot of back and forth. It keeps everyone honest. The responsible party pushes their position, and the trustees push their position, and we wind up somewhere that's probably closer to the truth."


Have such benefits come at the price of untoward coziness between regulators and the regulated? Gross thinks so. "The entire legal structure created through the Oil Pollution Act has some significant issues," he said. "The control — if not actual control, at least influence — given to the polluter is troubling. And it's something that rarely comes to the attention of the public."

Even some scientists who have been directly involved in damage assessments under the Oil Pollution Act sometimes question how effective the "cooperative" process is, given the propensity of privately hired scientists to attack or mitigate conclusions unfavorable to the companies that hire them.

Terry Hazen, head of the ecology department at Lawrence Berkeley National Laboratory, has advised trial judges on how best to set up teams of experts to investigate environmental incidents such as the Cosco Busan spill. (Hazen is not familiar with the private consultants involved in the Cosco Busan damage assessment, which he has not participated in.)

Speaking generally, he said the private-sector scientific consultants are sometimes little more than hired guns with limited expertise beyond advancing the interests of their employer.

"I can't believe what they come up with sometimes," he said. "Some of the science is sort of gray, so they emphasize what they think will promote their case and get them a good paycheck."

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Peter Jamison

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