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Two major oil disasters in a single month – a Chinese oil tanker aground on the Great Barrier Reef, and the BP blowout in the Gulf of Mexico – where is Sarah Palin now? Or, more seriously, where is environmental law when we need it?

The Australian spill is, in a legal sense, simpler. Tankers are clearly banned from the reef, and this tanker had no right to be where it was. (Apparently, the pilot was too exhausted to know where he was.) So two men have reportedly been arrested; they and their ship will be prosecuted and fined. Some of the money will, perhaps, be used as compensation to fishermen, or to pay for some cleanup and restoration of the coral. But the reef itself will be badly damaged for decades, on top of devastating losses from agricultural runoff, overfishing and climate change.

Did the law do any good in this case?

It is little comfort to those suffering from the devastation that the spill resulted from an illegal act. But at least the law had a sensible plan for avoiding this sort of accident. Banning tankers from the reef probably does reduce the frequency of accidents there. In fact, bans are likely the most effective type of environmental law, as long as they can be enforced. More could certainly be done to keep ships away from the reef: mandatory local pilots, for example, and/or live ship traffic control with GPS, and perhaps we will see such changes now.

Law is far less obviously helpful with the immense BP spill in the Gulf of Mexico.

Spills are already illegal. Every informed person knows that drilling deep offshore for oil has huge economic and environmental risks. We decided, as a society, to take those risks. Sophisticated BP believed it could manage the risks, hoping to control them through fancy technology. But technology is as imperfect as we are; it fails. And then we unleash consequences that we cannot bear.

Can the law do much more to make people “be careful”?  It’s not obvious to me.  Most countries already have severe penalties on the books for environmental pollution.  BP is one of the most environmentally conscious of the oil company majors and its oil wells are immensely expensive; it’s hard to believe that any more law would make it more careful. They really, really, really wanted to get a well for all that money, not an oil slick. A different law would not have changed that, except a ban on offshore drilling.

Prosecuting BP in these circumstances may be politically necessary, but it seems unlikely to improve the standard of care. And if our standard of care isn’t enough to prevent disaster, can we keep on doing what we’re doing?

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