White House and BP legal wrangling: more damage to collaborative work in disaster response

The relationship between the federal government and a company held accountable for oil spills has always been touchy. After the ExxonValdez accident in 1989, it was seen that the role of the government in responding a major spill was unresolved. That was settled with the Oil Pollution Act of 1990 which put the government inside the command of a spill response with the company owning the oil, the “responsible party” running the show but with very close government supervision. The Incident Command System was used with the federal official part of “Unified Command” and having the authority to “federalize” the response at any time, meaning they would assume direct control and essentially kick out the responsible party from response management decisions.

That’s the way it was for over 20 years. The goal in that time was collaboration. Everyone involved saw it as in their best interests to work together. The Responsible Party (RP) knew they had to get approval from the FOSC (Federal On Scene Coordinator) or face federalization. The Joint Information Center (JIC) came along, codified by the Coast Guard in 2000 in the first JIC Model manual, with the primary purpose of providing the response facts while standing together with a key message of “we’re in this together.”

I participated in a number of ICS/JIC responses in my career and even more drills and exercises. This, I can tell you, was the policy, the plan, the intention. There were always wrinkles (like when WA State Dept of Ecology demanded they be the sole authority much to the consternation of the Coast Guard) but for the most part it worked very well.

That ended with the BP Oil Spill. The Obama Administration starting with the President, his senior staff and the Secretary of DHS clearly had no awareness of ICS and JIC protocols, nor the history of standing together. Given the media and public pressure, they felt it essential to throw BP under the bus and break down any pretense of partnership or standing together. BP was unceremoniously thrown out of the JIC and one official said the response was being federalized. Hold on, said the National Incident Commander Thad  Allen, not so fast. BP is essential to this response, they have the equipment, expertise and manpower that the government doesn’t. Plus, it’s their money that is paying for everything.

So this uneasy situation emerged: the White House running all communications and turning the JIC into a part of the political messaging machine–with the primary purpose of focusing public outrage on BP (remember the “who’s ass to kick comment”?) Part of that communication was to assure the public that the government was running the response. They were telling BP what and how to do it.

OK, that’s history. Now the legal issues take front stage. This article, (thanks JD) is about a legal wrangle between BP and the White House over access to White House emails. The federal government is suing BP for all the damage, including damage while responding. And BP is saying, but since you were telling us what to do, shouldn’t the demands and dictates you prepared be included in the trial? We have a strange situation where the government is attempting to hold a major corporation accountable for actions which, to some degree, it dictated.

One example from the article:

One e-mail, “Re: Flow Rates,” contains discussions between White House officials, Interior Secretary Kenneth Salazar, National Incident Commander Thad Allen, with copies to Energy Secretary Steven Chu, “concerning how and when to address information in future press communications” about the worst offshore oil spill in U.S. history.

As you know BP was pilloried in the press (and among crisis communications pundits) for underestimating the flow. Yet post spill analysis (check earlier posts here) showed that it was Unified Command led by the Coast Guard who prepared the flow estimates and released them. (Don’t get me wrong–I’m not blaming the CG, they all had the best available info at the time and accusations of underestimating are prime examples of brilliance by hindsight.) The White House overall was remarkably effective in blunting public outrage and blame directed against itself and ensuring through its powerful office that the President in particular was innoculated.

The effect of this on the National Incident Management System, the Incident Command System and the Joint Information Center is massive and will continue to be felt for years. Two recent examples: conversing with oil industry communications experts recently made it clear that in any future major events under this administration, all communication will be cleared by WA DC (either White House or CG HQ as needed). This is a massive change, undermines the authority of Unified Command, and almost guarantees that any news coming out of an official JIC will be very late and largely pointless. Except for “talking points for the White House” as CNN called the emissions from the JIC after the White House took control.

Another example, in discussions with city government officials about their plans for joint communication with other agencies in a JIC, the primary problem to be addressed is demand of elected officials to have approval authority over JIC communications. Again, this slows it down, removes responsibility for communication from Unified Command, and is a direct violation of NIMS. However, what elected official is going to be concerned about that given the example provided by the highest office of the land? We saw that with the Governor of Montana in the Yellowstone River spill a year after Deepwater.

The damage is done. I can only hope that more in government communications and those who may need to work with the government in major events become aware of this, adjust plans accordingly, and hope for a day when there is a return to collaboration and standing together.

(Full disclosure, my previous company was engaged by both the US government and BP in the oil spill.)


6 thoughts on “White House and BP legal wrangling: more damage to collaborative work in disaster response”

  1. This is an important post for many to read, including serious crisis management pros that have the ability to look far deeper than a CEO’s unfortunate sound bite. Thank you, Gerald.

  2. The trend towards the White House becoming the EOC [Emergency Operations Center] and JIC [Joint Information Center] in domestic civil crisis management is a largely unstudied fact of life but given the defined role of both institutions the White House would have to be totally restructured to make a success of that change. There is in fact and never has been a domestic civil crisis management system and chain of command. Efforts mandated by law to develop and merge various federal response plans have largely failed. Thus, once again the nation has been deprived of advance coordination and cooperation during a large scale civil domestic event. There is no “new FEMA” and DHS Secretaries have repeatedly been totally ignorant of government response and recovery mechanisms. The result can be foreshadowed by examining the FUKISHIMA event and Japanese governmental response. And there should have been an Emergency Declaration under the STAFFORD ACT since funding for collateral expenses of the STATES and their local governments in the BP event were inadequate.


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  3. I’m ever more convinced that the responsibility for defining Unified Command (UC) rests by default on the shoulders of the Responsible Party (RP). My experience is that all who inhabit UC simply feel UC is self-existent and doesn’t need to be explained any more than gravity needs to be explained. Unfortunately this is not true, as Gerald points out.

    As and RP, assuming that ANYONE knows about ‘Unified Command’ is dangerous. What they don’t know will hurt the RP.

    The RP needs to pledge fealty to Unified Command often and loudly, clearly labeling all Unified Command decisions as such. Only then will the public have any comprehension of what Unified Command is.

    It’s ironic that it becomes the RP’s job to trumpet the existence of Unified Command, but failing to do so will reinforce a very public perception that the RP is responsible for all response decisions and actions.

  4. Marc: reinforce a very public perception that the RP is responsible for all response decisions and actions.
    That’s especially true when political powers usurp the UC’s voice (the JIC) and use it to heap outrage on the RP. Pretty tough battle to fight.

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