Getting away with murder, Part 1

The BP Oil Spill undercounted oiled wildlife by orders of magnitude as the government and non-profits quietly acquiesced.

(Listen to the much shorter radio version here.)

The most disillusioning experience of my entire life was when I went down to the Gulf in July 2010 following the BP oil spill. I saw firsthand the power BP had exerted over several of my most respected and even beloved scientific, educational, and conservation non-profits, the Obama administration, and individual human beings.

After the 1989 Exxon Valdez spill, lots of people went up to Alaska and found ways to help. I remember news reports celebrating how committed, motivated, and helpful this army of volunteers was in retrieving oiled animals in time to get the still-living ones to rehabbers. And knowledgeable birders stood watch along the coast, keeping count of oiled birds too far from shore to retrieve, their numbers helping to establish Exxon’s liability. We desperately needed that and more in the Gulf, where the spill was so much more massive (4.9 million barrels versus the Exxon Valdez’s 240,000 barrels).

But BP knew from the start that their liability for damage to wildlife was tied directly to the number of oiled animals—the more that were officially counted, the worse for their bottom line. And any massive and sustained effort to document and retrieve oiled wildlife would keep new photos of oiled animals running on the news day after day, maximizing the PR disaster for BP.

I took this photo on July 27, 2010, after hearing endless news stories about how “minimal” the danger had been to birds and how, thanks to dispersants and evaporation, the oil had mostly disappeared.

National news quickly started reporting that National Audubon would be coordinating volunteers to go to the Gulf to document and help retrieve oiled wildlife. I had a whole lot of commitments through mid-summer so could not volunteer do to anything right away, but I trusted that Audubon would do a great job. Over ten thousand people immediately signed up.

But BP apparently persuaded both Audubon and the government that volunteers could cause more problems than they’d solve, the situation was too dangerous for anyone without the specialized training that only BP or its contractors could provide, and if anything happened to volunteers, BP could be subjected to even more lawsuits, not that BP was likely to lose them. Their own employees involved in the cleanup who developed chronic illnesses sued, but BP dragged out the legal process as long as possible, allowing these human beings to suffer for over 14 years, and now, just last month a panel of judges on the 11th Circuit Court of Appeals upheld a lower court’s ruling against the employees. The way the U.S. judicial system now operates, the bottom line of corporations gets far more protection than the lives of human beings.

Less than a decade after the bipartisan Clean Air and Clean Water Acts were passed by Congress and signed into law by Richard Nixon, corporate interests had organized in the form of the Heritage Foundation, Federalist Society, and other organizations formed to protect corporate over human rights. Anti-regulation sentiment in the general public was sparked and fanned by the Reagan Administration. Anne Gorsuch, who headed Reagan’s EPA, cut the agency's budget, relaxed environmental regulations, and resisted congressional oversight. The George H.W. Bush administration followed suit, with Vice President Dan Quayle’s “Council on Competitiveness” continuing under the radar to eviscerate the very regulations that already had a proven track record of cleaning air and water.

Lawsuits by corporations against the EPA, US Fish and Wildlife Service, Food and Drug Administration, and other regulating agencies ended up at appellate courts and a Supreme Court that consistently ruled in favor of the corporations. By 2010, the regulations that make polluters responsible for cleanup were granting those same polluters the power to oversee and control just about every aspect of the cleanups, leaving the Obama Administration little power to force BP to do anything.

Shockingly, because of BP’s control over the situation, the U.S. Fish and Wildlife Service prohibited experienced, trained, expert rehabbers—people who’d spent decades in coastal states retrieving and successfully rehabbing oiled animals—from coming anywhere near this oil spill. My treasured friend Marge Gibson, who led the Bald Eagle recovery team in the aftermath of the Exxon Valdez oil spill and now runs an internationally acclaimed wildlife rehab center in Antigo, Wisconsin, (REGI), was told that she’d lose her federal wildlife rehab license if she turned up anywhere near the Gulf. I’m not sure how BP accomplished this but suspect that because professional rehabbers were licensed by the US Fish and Wildlife Service, BP could sue the agency itself for “interfering.”

BP chose a small corporation called Wildlife Response Services to coordinate all the rehabbing. On their webpage, Wildlife Response Services takes pride in “working collaboratively with our industry partners.” Only four wildlife rehabilitation centers were set up and allowed to treat oiled birds along the entire 1600-mile, 5-state Gulf coastline from Texas to Florida. I visited one of these in early August and can attest that the rehabbers were professional and skilled, but they were forbidden to retrieve any oiled wildlife themselves; they were allowed to treat only animals brought to them. If someone called about even a very nearby oiled creature, the rehabbers had to call one of BP’s “rescue teams,” which could be an hour or more away. On June 8, I wrote on my blog, “When a team from the Cornell Lab of Ornithology found an oiled but still-living pelican along with an oil-drenched Snowy Egret carcass, they called the BP wildlife rescue team, which took 90 minutes to arrive, and probably at least another hour to get it to their facility.”

Some boat operators contracted by BP for other services were allowed to retrieve oiled birds, but even they were required, on pain of losing their contracts (and in many cases, their livelihoods), to leave birds that could still fly, using BP’s unique and bizarre definition of “fly.” On July 27, I photographed a Black-crowned Night-Heron on Barataria Bay, on a boom just out from Cat Island, the site of a major breeding rookery for pelicans. The night-heron was drenched with oil.

Our boat captain wanted to retrieve it and had the proper permits from BP, but when he brought our boat near, the poor bird made the fatal mistake of trying to open its gunked-up wings in a pitiful attempt to get away.

It fell into the shallow water and waded to shore, but the moment it opened its wings at all, it was doomed—the captain was no longer permitted to retrieve it because it was, by BP’s definition, “flighted.” I can’t begin to say how hard my heart was beating and how sick I felt in the very core of my being as our boat turned away, leaving the poor thing to its horrifying fate. I wish I were making this up.

The captain did “report” the oiled night-heron and some other badly oiled birds we saw that day, but those reports, along with every other report of an oiled bird, whether visually observed or documented with photos and/or video, was filed away somewhere entirely separate from BP’s “Consolidated Wildlife Report,” which kept a tally only of the oiled wildlife that was physically retrieved, dead or alive, after the spill. (Drew Wheelan, reporting on the spill for the American Birding Association, documented that large piles of oiled carcasses were being burned at nighttime, so even the reports of birds retrieved were grossly incomplete.)

Like the poor night-heron I saw, a great many documented oiled birds, including those who could have been picked up easily, were left to die, including every single bird at every known breeding colony. Researchers who had formerly been allowed on islands to film nesting behaviors or to band nesting birds were now warned that any human presence on the islands would “disturb nesting birds,” including pelicans observed to be lying prostrate on the ground as they died agonizing deaths. Because not one of the many thousand nesting birds was allowed to be retrieved, not one was included in the Consolidated Wildlife Report total that ended up including just 8,000 oiled birds.

Those of us who had any clue about what was happening knew that the Consolidated Wildlife Report’s numbers were a good two orders of magnitude less than the true number of oiled wildlife, but BP had the chutzpah to suggest on the Consolidated Wildlife Report webpage that the number was an overestimate, writing:

Some fish and wildlife reported here have likely died or been injured by natural causes, not due to the oil spill. Due to the increased number of trained people evaluating the spill impacted areas, it is also likely that we will recover more naturally injured or dead fish and wildlife than normal.

Not one organization—not Audubon, the Cornell Lab, American Bird Conservancy, National Wildlife Federation, nor any other organization with any cooperative agreements with the U.S. Fish and Wildlife Service or any grants through BP—said anything publicly about how BP had changed the way the official number of oiled wildlife had been tallied to massively lower the corporation’s liability. Except for the American Birding Association, which had no government contracts or permits to jeopardize or mitigation grant money to look forward to, every conservation or research organization went along with a 5-year moratorium on publishing any research studies about the spill, a moratorium sanctioned by the U.S. Fish and Wildlife Service ostensibly because lawsuits during this time could misuse unsubstantiated data, or at least data not approved by BP. Somehow this moratorium extended to publishing photos and videos of oiled wildlife. By the time I went to the Gulf, even the organizations with lots of photos of oiled birds had stopped publishing them. Just like that.

Four full years after the spill, Audubon did mention the moratorium:

… due to a paucity of data, the true extent of the damage is still not yet known, especially where bird mortality is concerned. What research does exist is confidential property of the U.S. government, and will not see the light of day until the lawsuit against BP has run its course, the next phase of which begins in 2015.

In that article, Audubon estimated the total kill at about a million birds without mentioning that the lawsuit against BP would “run its course” using just BP’s Consolidated Wildlife Report numbers, setting the bird kill total at 8,000 birds. What’s one or two orders of magnitude between friends?

Yes. I’m still bitter.