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Oil Spill Q & A with Earthjustice Attorney David Guest: "I Wasn't Surprised At All"

As managing attorney for the Earthjustice office in Tallahassee, David Guest has been knee-deep in Florida’s water pollution and protection issues for more than 20 years. It’s not surprising considering that Florida itself is mostly water, with more than 1,000 miles of coastline, almost 20,000 streams and rivers and the second biggest freshwater lake in U.S., Lake Okeechobee. In fact, in most places in Florida if you take a shovel and dig a foot below the ground you will almost certainly hit water. Recently we sat down with David to talk about his latest water case, the BP oil spill in the Gulf.

How has the recent Gulf oil spill impacted your work?
The spill is just one other piece of our water work, but it’s hardly a new issue. One of the big cases that we did back in the 1990s was about offshore drilling in Florida. We tried a case that examined the risks of an oil spill and looked at what would happen if such a spill occurred. A lot of our knowledge came from the 1979 Ixtoc oil spill in Mexico’s Bay of Campeche, which lasted for nine months and spilled millions of barrels of oil into the Gulf while oil and gas from below kept a continuous fire going on the ocean's surface.

Prior to the trial we gathered every detail on how the Ixtoc spill happened. Just like the BP spill, the Ixtoc spill was caused by a blowout. And like the BP spill, the blowout preventer didn’t work and the oil came shooting out the top. The crew escaped so there were no fatalities, but just like BP the oil company tried to put on a containment device. During this most recent spill, BP called it the “top hat,” but back then they called it the “sombrero” because it was an American rig and an American crew, but it was in Mexican waters. They also tried using hundreds of skimmers. And just like with the BP spill, those didn’t really work. So we examined these issues and asked the court, can you really stop the blowouts? In the end we persuaded the court that the permit to drill ought to be denied.

What was your reaction when you first heard about the spill?
Well, I wasn’t surprised at all. Because of our involvement with previous cases we knew exactly what was coming when the blowout occurred. When it first happened, I was attending a conference about water transfers in Colorado Springs. I got a call about the spill early in the morning and was told that the blowout preventer failed. I knew that once it had failed it was going to be a very big spill, probably bigger than Exxon Valdez. I knew that they were probably going to have a continuing blowout for as long as four to nine months. It was very clear that the top hat and the top kill weren’t going to work. We knew right out of the box that this was going to be a catastrophe and that we were going to be deeply involved with this spill.

We also weren’t surprised that there were no regulations because we’ve run across all these issues before. In a previous case we found that the permitting agency had not even read the statute governing oil drilling. The statute required a permitting agency to weigh four factors in deciding whether to grant a permit, but the permitting people weren’t even aware of the statute. We were not surprised at all when this happened. It’s just more of the same for us.

You’ve said that most of your life has been spent going to court fighting for things that can still be saved. Do you believe that the Gulf can still be saved?
I definitely think that the Gulf can be saved. Over time we can get it to recover, but it will be difficult. One of the big jobs underway is cleaning up the sandy beaches, which fortunately are the vast majority of what’s been affected because it’s actually the easier part. It’s going to involve a lot of mopping and a lot of digging. The oil is coming in as these big globs that often look like huge pieces of old, jelly-like liver. You shovel them up if they are dry or roll them up with a big paper towel, but they’re often about 12 inches long, a half-inch thick and six inches wide, so it’s a very labor-intensive process. There are going to be many thousands of people working just on that alone for awhile.

The harder part will be cleaning up the marshes, which are a really big deal because the oil gets in there and consolidates with the vegetation, eventually killing it. From there you’ll get a petroleum layer that is toxic to the various life forms that dig into that muck, such as worms, birds, crabs, and aquatic plants, which are all a major part of the food chain. So when oil gets in there you really have a problem because it’s nearly impossible to reproduce a salt marsh.

Now that the spill has been contained, what’s Earthjustice’s next move?
Right now we have eight pending cases, five of which challenge the MMS approvals of deepwater exploration plans for the Gulf of Mexico. Among those are lawsuits challenging the agency's approval of a shallower water exploration plan and the MMS's approval of BP's regional plan for containing and cleaning up a major oil spill. Our eighth lawsuit is against the Environmental Protection Agency to discover the ingredients in the chemical dispersants being used in the Gulf.

In addition, it’s likely that the states (Louisiana, Alabama, Mississippi and possibly Texas) will make deals with the oil companies on natural resources damages, which includes all the dead birds and fish as well as the damage to the marshes. What’s probably going to happen is that if you know Louisiana Governor Bobby Jindal and his ilk you know that he gets out there ranting and raving in his open collared shirt, filled with moral outrage while waving his arms and flashing his eyes, but when the time comes to make a deal with the oil companies then the door will close and the oil companies will negotiate a sweetheart deal. At that time Earthjustice will be ready to make a legal argument that the deal that those folks have cut is utterly inadequate and that it should be rejected by the court.

Do you think the public has changed their mind about offshore drilling since the spill?
I think that whole idea was captured best by Jay Leno when he asked Sarah Palin, “How’s that drill, baby, drill thing working for ya?” And that’s right. All the people who were shouting “drill, baby, drill” are sitting on their hands looking like idiots right now. This spill has reshaped the policy debate. People who are telling us to go ahead and drill anyway, claiming that a spill like this could never happen again, well nobody in their right mind would ever believe a word of it. Once you’ve had a disaster like this in a place where everybody has been promising you that a spill like this could never happen, nobody’s going to believe them. And they’re right.  I think that the one thing that it has done is that it has produced such a wave of horror throughout the U.S. that a major backlash is underway against the public relations spin and the political power of the oil industry.