In April 2009 the foreign ministers of the eight Arctic Council countries, gathered in Tromsø, Norway, approved a 90-page document entitled “Arctic Offshore Oil and Gas Guidelines.” The guidelines were the product of more than two years of work led by the Council’s Working Group on Protection of the Arctic Marine Environment. They were not and are not binding on any Arctic country but are intended as recommendations to national regulators of offshore oil activities in developing national standards which would be applied consistently to oil and gas operations in any of the six Arctic countries that have the potential for offshore oil development: the United States, Canada, Denmark-Greenland, Iceland, Norway and Russia.
Five pages of the report addressed the problem of oil spills in the Arctic and how a country should plan and prepare for them. Although countries were advised to take into account damage that might occur across borders, the report assumed that each country would capable of containing and cleaning up any oil spill that occurred within its coastal waters. Only once sentence even hinted that that might not always be possible: “Governments should also make appropriate arrangements that facilitate international coordination and cooperation.”
The 2009 Guidelines were themselves an updating and revision of an earlier set of offshore oil and gas guidelines adopted in 1997, with some revisions in 2002. Another decade might have passed before the Arctic states again seriously addressed offshore oil development but for the Deepwater Horizon blowout in the Gulf of Mexico almost exactly one year later. The blowout killed 11 workers and produced the largest marine oil spill in history. What was shocking from an international point of view, as well as for domestic audiences, was the obvious inability of the United States and one of the world’s largest oil companies to do anything to stop the undersea gusher for three months, despite the calmest of seas and the proximity of the spill to major ports and equipment stockpiles. If the United States and an oil company with the resources of BP couldn’t handle a major blowout in their back yard, it was unreasonable to believe that any of the Arctic countries could handle a major blowout or spill under fierce Arctic conditions, in some cases hundreds if not thousands of miles from the nearest port, and there was no substance behind the assurances the Arctic countries had been giving the rest of the world that they could.
Other countries, including the European Union, were already knocking at the door to be allowed admission to the Arctic Council for both economic and stewardship reasons. They did not view the Arctic as the exclusive preserve of the six countries whose land or waters happen to be north of the Arctic Circle. Deepwater Horizon strengthened the arguments of these non-Arctic countries that they should have a greater say in Arctic affairs.
From the perspective of the Arctic Council countries, something had to be done, if only to improve what was often referred to as the “optics” of the situation—to demonstrate that they were taking action to improve their response capacity and thus to ward off further moves to internationalize the Arctic. But mixed with that was a genuine desire to improve cooperation and coordination in planning for a major oil spill and, if one happened, in bringing to bear as quickly as possible all the resources any Arctic Council country can spare—aircraft, barges, icebreakers, booms, skimmers, drill rigs, etc., as well as experts and personnel.
One of the many problems revealed by Deepwater Horizon was the difficulty in accepting offers of assistance, and especially equipment, from other countries. Could offers of ships made by other countries to help ferry equipment to the site be accepted without violating U.S. laws limiting coastal shipping to U.S. carriers? Would equipment brought in be held up in U.S. Customs? Even if it weren’t, would it fit with equipment from the U.S., from oil companies, or borrowed from other countries? How long would it take to get it, and would personnel from the offering country be needed to operate it? And if agencies in the country of the spill new exactly what was needed, where in the other Arctic countries might such equipment be found and who should they ask? The questions went on and on.
Thus, when the Arctic Council foreign ministers gathered once again in 2011, in Nuuk, Greenland, two years after their meeting in Tromsø and a year after the Deepwater Horizon fiasco, they established a special task force to draft an agreement (or “legal instrument,” a term diplomats prefer) that would facilitate the sharing of knowledge, experience, and equipment across Arctic boundaries in the event of a spill that was beyond the ability of any one country to handle alone. The task force was chaired by high-ranking officials from Norway, Russia and the United States. The U.S. co-chair was David Balton, State Department Deputy Assistant Secretary for Oceans and Fisheries, who will also serve as Chair of the Senior Arctic Officials for the next two years.
All of the Arctic Council countries actively participated in the drafting of the Preparedness and Response Agreement, which took place in six meetings over nearly two years. More importantly, the delegations brought to the task a sincere desire to make a difference—that is, not simply to provide the optical illusion of doing something to protect the Arctic but really to improve the ability of countries to help one another in responding quickly to a major oil spill. They were not able to go as far as they might have liked due in part to time constraints: the mandate that created the task force required them to come up with an agreement that could be signed by the foreign ministers in early 2013, and time had to be allowed for each country to vet the final draft with numerous internal agencies. More time had to be allowed for the iterative process of translating the agreement, negotiated in English, into other languages and ensuring accuracy down to the nuance.
A major oil spill that occurs in severe Arctic conditions will never be cleaned up to the point that serious environmental damage will be avoided. However, the Preparedness and Response Agreement that was adopted by the Arctic Council states in 2013 contains several provisions that, if carried out, would improve Arctic response capacity, possibly lessening the environmental damage, and might even lead to decisions to forego offshore oil development altogether in some places. For instance, the Agreement commits each country to identify the areas within its jurisdiction where a spill is most likely, as well areas of special ecological significance that would be at risk; to maintain a minimum level of pre-positioned oil spill equipment commensurate with the risk; to identify who within each country is authorized to request assistance and who is authorized to respond; to make such changes in laws or regulations as are needed so that barriers to cross-border shipment can be eliminated in emergencies; and to carry out joint exercises and training designed to improve the ability of personnel in different countries to work together. The Arctic Council countries have also agreed that the Council’s EPPR Working Group will periodically review the results of the joint exercises, presumable held once every two years, and will revise the implementing guidelines as a result of those exercises and other input.
One of the major tasks for the U.S. during its Council chairship must be to lead an active program for implementing the Preparedness and Response Agreement. This is not as easy as it sounds. One reason is that five years have elapsed since the Deepwater Horizon incident, with the inevitable result that neither public attention nor political commitment are as strong as they were when the Agreement was drafted. Another challenge is to work with Russia in an international atmosphere poisoned by Russia’s actions in the Ukraine, the sanctions that have been imposed on Russia, and other foreign policy clashes.
That these problems are real is illustrated by the not very successful attempt of the Arctic Council countries to negotiate a second oil spill agreement in 2013 and 2014, one dealing not simply with responding to a spill resulting from offshore oil operations (as well as shipping) but with preventing oil spills in the first place. The whole topic was more threatening than preparedness and response because the best way of preventing a blowout from offshore oil drilling is, of course, not to drill in the first place, and none of the relevant countries is willing to take that very obvious step. But Deepwater Horizon was already receding into the distance, and the mandate from the foreign ministers to the new Task Force on Oil Pollution Prevention was weak; it did not direct them to draft a binding agreement but only to develop “an action plan or other arrangement” on pollution prevention, with no other guidance. The work of the task force became even more difficult in early 2014 with Russia’s annexation of the Crimea and events since then. Although all of the Arctic countries are trying to continue to cooperate at the Council, the tensions that exist make it all the more difficult even to raise, let alone resolve, already challenging issues.
But the Arctic and threats to the Arctic’s environmental integrity from offshore oil development, not to mention climate change, are simply too important not to push forward. Fortunately, we have the completed Preparedness and Response Agreement; what is need now are practical exercises in implementing it and bringing together personnel from all the Arctic countries who can focus on the operational aspects of an existing agreement. There should be room for progress here while avoiding some of the pitfalls that would be encountered in trying to negotiate new agreements. The U.S. must continue to lead a cooperative effort to create a detailed inventory of response assets held by the all the Arctic countries, including location, availability, and technical compatibility with other equipment. One hopes, too, that under the U.S. chairship the Arctic countries will move beyond mere “table top” exercises in implementing the Preparedness and Response Agreement. The exercise led by Canada under its chairship, which focused on notification procedures under the agreement, was useful and identified many shortcomings in contact information that can now be corrected. But the time has come—indeed, it is overdue—to focus on the physical challenges of responding to an Arctic oil spill. That will require a much more expensive exercise, but hardly as expensive as the real thing, especially without practice. If the U.S. cannot put together such an exercise during the two years of its Arctic Council chairship, it should commit to do so under the Finnish chairship that will follow.
The U.S. must also follow through on its commitment to create an Arctic Offshore Regulators Forum. The U.S. proposal for such a forum, open to high-level regulators from all the Arctic countries, is one of the best ideas to come out of the Task Force on Oil Pollution Prevention. Although the document that came out of the Task Force, the Framework Plan for Cooperation on Prevention of Oil Pollution from Petroleum and Maritime Activities in the Marine Areas of the Arctic, does not specifically mention the Forum, the idea was first put forward by the U.S. in the negotiations for the agreement and it appeared to enjoy broad support. The U.S. has said that it will take the lead in establishing and Forum and will even provide the initial financial support. This is good and, again, brings people together around common concerns without asking them to resolve difficult political differences. In the field of offshore oil pollution prevention, preparedness and response, the U.S. must push for the implementation of agreements already made. And, should oil prices remain low, and Arctic oil development slacken, there may be even more opportunities for prevention than we can now see.
Written by Buck Parker. Published on April 23, 2015.
About the Author
Buck Parker has followed the Arctic Council since 2009, with special attention to offshore oil development and Arctic oil pollution from any source.
He has participated in the Arctic Ocean Review, undertaken by the Council in 2009 to identify gaps in Arctic governance, and in the ongoing work of two of the Arctic Council’s six regular working groups, Protection of the Arctic Marine Environment (PAME) and Emergency Prevention, Preparation and Response (EPPR).
Buck was a member of the official U.S. delegation to the Council Force that negotiated and drafted the 2013 Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic.
Buck joined Earthjustice in 1980 and served as president and executive director from 1997 through 2007. He participates in the Council’s work under the auspices of the Circumpolar Conservation Union, an organization founded in 1995 to advocate for the ecological and cultural preservation of the Arctic.
Earthjustice participates in the CCU, which initially advocated for the Council’s creation and is still one of only two environmental NGOs to enjoy official Observer status at the Council, entitled to attend its meetings and to participate in its work.