Why was the Deepwater Horizon given a Categorical Exclusion?

The leak started 30 days ago, oil as thick as paint is washing up on the shores of Louisiana and there are plumes of oil deep underwater poisoning the ocean and threatening the Florida Keys and the east coast.  There have been many attempts to stop the leak and it appears that it won’t be capped for a long time to come.  This disaster is killing all kinds of wildlife and will change the whole ecology of the Gulf as well as its economy for many, many years if not longer.  Knowing that the consequences of a spill like this are so disastrous why was the Deepwater Horizon given a categorical exclusion from environmental analysis under the National Environmental Policy Act (NEPA)?

Under NEPA there are basically 3 levels of review a project can undergo.  First, NEPA requires that an agency determine if the project is covered under NEPA, if it is not then the project is given a categorical exclusion.  Second, if the project is covered under NEPA, the agency must determine whether it would have any significant environmental effects, if it doesn’t then the project is issued a Finding of No Significant Impact (FONSI) and an Environmental Assessment (EA) is prepared.  Finally, if there are significant impacts then an Environmental Impact Statement (EIS) must be prepared.

The fact that the Deepwater Horizon was given a categorical exclusion is contrary to the guidance given for NEPA in the 2004 MMS Departmental Manual which says that a categorical exclusion should not be issued if the lease or exploration is:
(1) In areas of high seismic risk or seismicity, relatively untested deepwater, or remote areas; or
(2) Within the boundary of a proposed or established marine sanctuary, and/or within or near the boundary of a proposed or established wildlife refuge or areas of high biological sensitivity; or
(3) In areas of hazardous natural bottom conditions; or
(4) Utilizing new or unusual technology.

Here is some perspective. Recently, Western Watersheds Project settled on a lawsuit with the BLM, also an agency under the Department of Interior, over the issue of using categorical exclusions on grazing permit renewals. The BLM can no longer issue categorical exclusions on even the smallest grazing leases, they must do at least an EA but we argue that they should do an EIS since the practice is so harmful to the land and habitat.

When put into this perspective with how other projects are treated, it seems negligent that the Deepwater Horizon was given a categorical exclusion from NEPA. The Deepwater Horizon had the potential for far greater environmental consequences than was acknowledged and we can see the damage that has been caused by this extremely negligent disaster. Will anyone be held accountable? It was well known that the MMS had serious corruption allegations against it before Obama appointed Salazar as the Secretary of Interior, and Salazar said he would address those issues. He didn’t, and now we are facing one of the worst, if not the worst, environmental disasters our country has ever faced. I think Salazar is woefully unprepared for this position and should step down.

You can read more:
Sheldon Whitehouse Lists the NEPA Exclusions | Emptywheel.


  1. Virginia Avatar

    Ken – thank you for this succinct article about the devastation wrought by BP and MMS. I wonder how on earth corporations and government entities in this country have become so corrupt and irresponsible. It never seems to change no matter who is in office. May be time for me to move to Costa Rica!

  2. JimT Avatar


    If you didn’t catch 60 minutes on Sunday, find it online. There is a part of an interview with a former inspector who said there is another platform with similar problems…lack of approval for engineering designs which turn out to be the operating manual for how to avoid mishaps, etc. And this platform, if it goes bad, will make this look Horizon look like a hiccup. It is more than just CE’s; it is also the internal engineering plans that are being subverted for a speedup in oil delivery, and internal damping down of questions between the primary contractor and owner and the various sub contractors, as we have seen with Deepwater.

    Ultimately the buck stops with Salazar, but this lack of review, granting of permits with CEsf instead of full EISs…that is mid-level management acting at its most incompetent, and maybe even criminal negiligent levels. We keep forgetting in our rantings that over 10 people were incinerated in this disaster…someone or some entities must be held accountable for that as well as the tremendous damage that is being done and will be there for decades to come. Just look at the Valdez…still ruining fishing and families there.

    Basically, oil and gas companies are not to be trusted. Period. MMS should be abolished if that is what it takes to get around the civil service protection of the incompetent employees, and start over.

    Read Paul Krugman’s op-ed on all of this…

  3. Cody Coyote Avatar

    Ken- if only the 2004 regulation on Categorical Exclusions had persisted. I guess Mr. Cheney and Mr. Bush et al were a little distracted by events in the Mideast and South Asia to get right to it, but they eventually did.

    It was that Wyoming implant at MMS, Randall Luthi whom I referrred to on other posts on this topic, who wrote new categorical exclusion regs and cast them into stone…in early 2008 . He made it one of his top priorities.

    I still believe the blood trail for the BP blowout is going to lead straight back to Luthi’s work at MMS up until the day he left office, the same day Obama took office. That other MMS guy who resigned last week over this BP debacle took a bullet for the higher ups.

    It might also be worthwhile to read up on Luthi’s current activities at the website of the lobbying association he heads…the National Offshore Industries Association.


    The May 16 video and the March 17 Press Release will make your head spin , among others there.

  4. Angela Avatar

    Why any oil drilling action could be eligible for a “categorical exclusion” really mystifies me because certainly each of these operations results in environmental impacts, even without an accident occurring. Right now I am participating in a review of environmental impacts for an offshore wave energy project and despite the fact that such projects could be a great source of clean, renewable energy, there is a myriad of impacts that need to be considered, including potential effects on every species of marine bird that may be in the area, and there must be monitoring sufficient to quantify “take” of any listed species throughout the entire term of the project. It’s been the same for all projects I have worked on for decades. So, a corporation researching and developing alternative energy sources is required to spend huge amounts of money to account for the project’s environmental impacts, while a project by a Big Oil corporation is not required to suffer any of the delays or financial outlay associated with an environmental review. The money is certainly there for them to take this step. But the system gives a pass to Big Oil and punishes those trying to develop alternative energy sources. argh


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Ken Cole