Lawmakers have criticized BP PLC for attempting to "muzzle" scientists researching the Gulf of Mexico oil spill with confidentiality agreements and blocking the "open exchange of scientific data and analysis." But the government is employing similar tactics itself.
The government is hiring expert witnesses under confidentiality agreements as it builds a legal case documenting the oil spill's environmental impact and determining how much BP and its partners should pay to restore the Gulf to pre-spill conditions, officials said.
And, while federal and state agencies are publicly sharing oil exposure data collected by BP-government scientist teams, they reserve the right to withhold information from studies the government and BP have not agreed on, said Tom Brosnan, an environmental scientist with the National Oceanic and Atmospheric Administration.
"This is not standard scientific investigation," Brosnan said. "This is a very pointed investigation into what has been injured, what has been lost and what is required to compensate the public."
The Natural Resource Damage Assessment and Restoration Program is the public's legal process for quantifying ecological harm caused by oil spills and develop a restoration plan that must be paid for by the responsible parties. The assessment is conducted by federal and state agencies with oversight of natural resources, including theInterior and Commerce departments -- collectively referred to as "trustees."
BP was blasted for retaining scientific expert witnesses for the NRDA process who are prohibited from releasing research findings for three years or until after a restoration plan had been approved. Reps. Henry Waxman (D-Calif.) and Edward Markey (D-Mass.) last month sent a letter to BP America asking the company to explain itself and provide copies of all scientist and third-party contracts (E&E Daily, July 30).
"The disaster in the Gulf of Mexico is not a private matter," the congressmen wrote on behalf of the House Energy and Commerce Committee. "Mitigating the long term impact of the oil spill will require an open exchange of scientific data and analysis. Any effort to muzzle scientists or shield their findings under doctrines of legal privileges could seriously impede the recovery."
But scientists are also being hired by the government as expert witnesses, which typically includes a confidentiality clause, Brosnan confirmed. The terms of the contract were not disclosed.
"It's par for the course," said Stan Senner, the director of conservation science at the Ocean Conservancy. "Anytime you have an event like this, everyone goes out and recruits experts."
Senner helped manage environmental restoration for seven years after the 1989 Exxon Valdez oil spill in Alaska. At the time, there was no formal process to assess ecological damage and implement restoration.
"The people recruited by industry for Exxon Valdez, their mission was not to find out what the harm was from the spill; their mission was to cast doubt on any conclusions drawn about harm from the spill," Senner said.
The NRDA process was developed based on lessons learned from that disaster and implemented by the Oil Pollution Act of 1990. To try to minimize disagreements about data, the government and the responsible parties are encouraged to work together to collect data.
In the wake of the BP oil spill that began when the Deepwater Horizon rig exploded on April 20, teams of federal, state and BP scientists began the "pre-assessment" process of documenting how much habitat had been polluted and how many fish, birds and other animals the oil had touched or killed.
While there may be disagreements later over how that data is interpreted, at least both sides can agree the numbers are accurate if they are both there when the counts are done, Brosnan said. NOAA is also posting the information gathered on its website so the public can stay informed.
However, findings from any studies the government and BP have not agreed to do together may not be released publicly until after the assessment is complete, Brosnan said. Much like a detective collecting evidence for a criminal case, the government does not want to reveal any smoking guns before the ideal moment in the courtroom.
The result of all this legal maneuvering is a broad clamping down of information until the case is resolved.
"In the end, the public is one of the losers -- they simply won't be well informed about what's going on," Senner said. "We want to push [the government] for maximum transparency, consistent with protecting public interest to get an appropriate claim."
Scientists are also concerned the government is not collecting enough robust data needed for the NRDA.
"This is a huge environment; this makes Prince William Sound look like a duck pond in comparison," Senner said. "It's going to need more than the trustee agencies can do in the NRDA process, and that is going to require coordination."
Many university and research institutions have launched independent studies of the Gulf oil spill. For example, the National Aquarium is teaming up with Johns Hopkins University and Mote Marine Laboratory to study Sarasota Bay, Fla., before it is potentially polluted. They deployed semipermeable membrane devices in June that will track any long-term accumulation of oil in the bay.
Proving oil caused harm is difficult, and it is essential to have baseline data to compare pre-spill to post-spill conditions, said Erik Rifkin, interim director of the National Aquarium. Rifkin suggested other researchers use similar methods to reduce uncertainty in conclusions about the oil spill's effects.
"We need to make sure experiment design is consistent and coordinated and gets us the information we really need to assess the damage," Rifkin said.
The National Science Foundation has handed out close to $7 million in rapid grants for researchers studying the oil spill so far. However, there is no widespread coordination throughout the research community to ensure resources are being used efficiently, methods are consistent or no gaps exist in research coverage.
"Our primary goal is to make sure opportunity to learn from disaster is not lost," said NSF spokesman Josh Chamot.
The government will be open to using appropriate, high-quality information gleaned from independent studies, Brosnan said.
While research funded by NSF is accepted as independent, some are skeptical of the $500 million research fund that BP established. Many are skeptical of any research funded by BP -- which ultimately includes the NRDA process, paid for by the responsible party.
Reps. Lois Capps (D-Calif.) and Rep. Lynn Woolsey (D-Calif.) sent a letter last month urging BP to turn over management of the fund to the National Academy of Sciences to ensure the research is impartial and rigorously reviewed. BP had not responded to the congresswomen by press time.