Introduction
This paper studies how political structures have shaped decision making during a recent oil spill in Brazil. The first part briefly explains political disputes over oil royalties from a social perspective. The second part summarizes the roles of and conflicts between oil agencies. The third part points out political obstacles for enacting a National Contingency Plan. The fourth part lists the sequence of events related to Chevron’s oil spill off Rio de Janeiro’s coast followed by a brief conclusion.
1. Political Structure
Chevron's oil spill off the Brazilian coast in November 2011 exposed the major environmental risks of tapping the country's new wealth. It also risked delaying economic development by fueling nationalistic oil politics. The accident quickly became politicized at a time when states were campaigning against a proposal to spread oil wealth more widely. "The reality is that this spill is going to speed up the politicizing of Brazil's oil industry," said Cleveland Jones, a geologist with the National Oil and Gas Institute at the State University of Rio de Janeiro. "We are not going to have a real discussion about the risks and benefits of offshore oil exploration, but an idiotic political discussion. The political risk is going to rise in the industry. This spill will be another excuse to limit the role of companies other than Petrobras in Brazil's oil industry and for the politicians to take more control of the country's oil industry", declared Jones (Blount, 2011).
At the federal level, endless political disputes, excessive bureaucracy and regulation, corruption, and slow judicial systems have led to governmental inefficiency that significantly increased transaction costs. To improve its efficiency, Brazilian public agencies have been undergoing various institutional reforms since the end of the military regime -- 1964 to 1985. For example, in 2007, the discovery of huge additional offshore hydrocarbon deposits in subsalt layers prompted the government of President Luiz Inácio Lula da Silva to propose changes in the legal regime applicable to Exploration and Production (E&P) activities. This change aimed at decreasing the Congress influence over petroleum private businesses and increasing the autonomy of regulatory agencies in strategic decision-making processes (Almeida, 2011).
The royalty dispute caused not only a fight among Brazil’s states, it also complicated political alliances between the ruling Labor Party and the centrist party, the country’s largest political party, which maintains a dominant presence in the oil-producing states of Rio de Janeiro and Espirito Santo, both major oil producers. Thus, in order to avoid more conflicts, senators and deputies decided to put the discussion of royalty allocation “on the back burner” (Ball, 2009). By deliberately refraining from openly debating this important national issue, the federal and state administrations put off the creation of a dynamic intergovernmental crisis management system characterized by four risk decision points: detection, interpretation, communication, and mobilization of a collective response system (Comfort, 2007).
A historical constraint on decision making is elite membership in the Brazilian society. Institutional membership is based on economic wealth, such as landholding records and tax returns. Elite values are a barometer of the strength of a democracy in two ways. Firstly, dictate and establish the norms of a democratic conduct. Secondly, reflect the health of a nation's democracy and its appeal to the wider population. Elite discourses on economic progress and the establishment of democracy should not be ignored (Wells, 2010). Elite decisions play an important role in shaping collective definitions and perceptions by highlighting preferred courses of action using three types of symbolic “crisis handling devices” -- framing, ritualization, and making. Understanding these social mechanisms of control is crucial to identify the dimensions of crisis management in local and regional politics (Hart, 1993).
The discrepancy between the parliamentary makeup and social reality of Brazil is abysmal. One out of every three legislators is a millionaire and of these "millionaires" the average capital worth is above one million dollars. The social composition of the Brazilian parliament is a direct reflection of the neoliberal policies adopted during the Cardoso administration of the 90's, which have been strengthened by Lula. Legislatures and political parties are the key institutions and aggregation of elite interests in the political process. Elites are represented in political parties and Legislatures not only at the national level but also at the state and local levels (Wells, 2010). This legitimate means of expression of the elites in political processes impedes the modernization of a public service based on nonhierarchical, independent, and decentralized institutional structures governed by market mechanisms -- competition -- and independent regulatory agencies. A centralized political control also obstructs teams and networks to be flexible and to become nonhierarchical forms of organization, which prevents the surge of new leaders whose skills would help the country achieve better policy outcomes and provide higher quality and cost-effective public services (Kapucu, 2009).
The elite control over public institutions in Brazil also hinders the implementation of an informal but successful crisis management system. Since the two principal concerns of the elite is maintaining its ideals and ensuring the preservation of privileges and rights conferred by its position in the socio-political structure, it becomes nearly impossible to formalize an informal management style which includes ten rules for conducting a successful crisis management program: i) assure that the real crisis is identified, ii) remember that power is what managers have and what the opposition thinks the manager has, iii) do not become involved in areas where the personnel are inexperienced, iv) go outside the opposition's experience and get the opposition on your "home field.", v) make the opposition play by its own rules, vi) do not let issues drag on too long, vii) keep the pressure on and keep in mind that a good crisis manager does not let up or declare victory at the first sign of success, viii) remember that the threat is usually more terrifying than the problem itself, iv) keep in mind that there is nothing to lose and everything to gain -- but it is important to make sure there is truly nothing to lose, and x) remember that the price of a successful attack is a constructive alternative (Lurie & Ahearn, 1991). The patrimonialist way of governance also holds back the establishment of an Emergency Management Assistance Compact (EMAC), which is a mutual aid agreement and partnership that allows states to assist one another in responding to natural and man-made disasters, often in advance of federal disaster assistance (Kapucu et al, 2009).
2. Petroleum Entities
According to the oceanographer David Zee, who was advising the federal police in the Chevron case, fining Chevron would not ensure that oil companies would start investing in prevention mechanisms. "This fine is innocuous mainly because it does not aim the main target which is mitigating the risks of future leaks”, Zee affirmed. The specialist also stated that this event should have been used to lay out a national debate over environmental legislation. “Brazil needs to rethink its regulations and laws to enforce mechanisms of prevention, especially related to drilling beyond pre-salt layer", Zee stated. The scientist also criticized the emergency procedures to contain the leak. "Chevron should have acted in less than forty-eight hours but it took over five days to respond”, he claimed. Zee urged the Brazilian oil regulator, ANP, to establish clearer criteria and a list of oil accidents so that it would be possible to fine companies based on the extension and magnitude of damage caused (Andrade, 2011).
In terms of oversight and subsidies, the most effective strategy to remove the government from political stalemates and corruption is avoiding legislators taking over the large flow of money coming into the country from oil operations. Under the military dictatorship, the government created an independent oil company that controlled its own finances and was less prone to political meddling. As Brazil shifted to democracy, Petrobras, the national oil company, partially kept its independence and the oil industry exponentially grew in the country. Hence, continued success depends on successive governments to remain at arm’s length and the enactment of accountability instruments (Victor, 2009). It is equally important that oil companies create a crisis management team -- with a clear chain of command -- well in advance of any crisis. This team should meet every six months to discuss potential crises and how to respond to them. These teams should also be cross-functional to receive inputs from all aspects of their actions, identify every possible disaster imagined and potential crises -- as well as possible responses -- and determine how vulnerable the company is to hazards (Kash & Darling, 1998). Finally, oil companies should also consider the increased number of threats deriving from climate change. By supporting changes in institutional structures and relationships and by partnering with public agencies, oil companies would be able to enhance governance and resilience, and as a result, reduce their overall vulnerability (O’Brien et al, 2006).
Brazil’s government and petroleum companies share responsibility. The legal contract is the primary tool for managing contractor responsibilities and performance. This means that the focus should be on the relationship between operating companies and first-tier contractors. It is also important to establish risk management systems to emphasize the growing importance of “managerial responsibility” since it is extremely difficult to apply standards and implement procedures across the entire contracting chain to ensure good performance. Seven key actions offering guidance for governments and civil society organizations are i) collaborate on early-stage planning and assessments by evaluating workforce capacity, enterprise development opportunities, stakeholder expectations and local content strategy; and by agreeing on environmental and social obligations, standards and evaluation methods ii) invest in capacity building in underdeveloped local markets by funding programs to build local capacity and supporting local business associations and networks iii) encourage uptake of standards through procurement and processes by ensuring health, safety, environmental and social expectations are included in prequalification and tender processes and making sure tender processes are open, transparent and free of corruption iv) ensure that contracts incentivize good practice by balancing incentives for cost, schedule and responsible practices, including provision of dedicated funds for environmental and social measures; by working with lead contractors to align expectations of environmental and social performance; and by ensuring that they do the same with subcontractors v) build capacities and trust on the job by assisting contractors in developing and funding environmental and social management plans and considering longer-term contracts to support capacity development vi) establish excellent communication and oversight throughout the chain by ensuring open lines of communication and feedback mechanisms; by coordinating oversight activities to lessen confusion and overlap; and by supporting local community liaison officers vii) build trust and accountability with external stakeholders by encouraging public reporting using recognized guidelines; and by encouraging good practices in public engagement and resolution of grievances and independent oversight by third-party organizations. Success in delivering good social and environmental outcomes strengthens the industry’s social license to operate and its ability to respond effectively to stakeholder expectations. It requires, however, a concerted effort across the industry, both top-down and bottom-up, and across stakeholder groups (Wilson, 2011).
In December 2001, the National Council for the Environment published the Federal Resolution 293/01 -- “the Oil Law” -- establishing the minimum requirements for an oil spill response plan. The resolution is general in some parts, basically because it is applicable to wider issues involving oil and quite theoretical in many ways so as it demands a subjective approach from the Brazilian Federal Environmental Agency’s (IBAMA) technicians. Experience has shown that some adjustments are needed and since late 2006 the resolution has been revised with the participation of environmental authorities, ANP, Brazilian Navy as well as oil companies. The main objective is minimizing uncertainty concerning oil spill response plans by documenting practices and procedures. Besides the compulsory implementation of a particular oil spill response plan for activities involving oil platforms, terminals and pipelines, the “Oil Law” established that IBAMA should coordinate the implementation of Regional Emergency Response Plans and a National Contingency Plan. However, after ten years, both plans are very far from being developed and implemented. This is primarily due to the lack of a specialized technical team to coordinate these projects. Hence, the Ministry of the Environment and IBAMA should make an effort to integrate all the parts involved, such as regional environmental agencies, oil companies, coast guard, and ANP. The Ministry of the Environment, for example, has mapped sensitive areas. These maps must be shared since they are fundamental for planning protection priorities, defining response strategies, and combating oil spills. The oil companies operating in these areas have to build a response plan to protect the various ecological resources existing in that area. For IBAMA, the great challenge is to guarantee that oil spill response plans for these areas are fully operational and all social and ecological measures to protect these areas are respected. One of the key points learned by the oil companies and IBAMA is the importance of local community’s participation in the development of an effective plan. These communities are important to the process because of their knowledge of local tidal currents and shoreline access points (Maggi, 2008).
Due to the complete separation of competences between the environment and regulatory agencies, ANP has directed its action to the installations of operational safety. The agency, through its Operational Safety Division, developed an Operational Safety Management System -- SGSO --, including seventeen management practices, concerning management leadership and personnel, facilities and technology, and operational practices. Thus, based on safety practices comprised within the SGSO, the operators of a given facility should prove that any kind of risk that may accrue from offshore drilling and production operations are strictly under control. ANP verifies these controls through periodical audits performed in the facilities (Jablonski, 2011).
The Oil and Nuclear Licensing Office -- ELPN/IBAMA -- is a new bureaucracy in the process of ever-rising demand for licensing. Despite inadequate staffing and limited resources, this entity adheres to strict schedules and provides a thorough analysis of environmental documents. Environmental regulation, starting in the mid-1960s, has developed in a fragmented manner through a series of laws, decrees, resolutions and edicts without the necessary effort to ensure compatibility among the diverse legal instruments. Congressional efforts have been underway to provide coherence and consolidation to environmental law, and, more recently, a process was initiated for the restructuring of the National Environmental Council (CONAMA), the consultative and deliberative body attached to the Ministry of Environment that is charged with studying and proposing policy guidelines, and decides on norms and standards compatible with environmental quality. Oil spill and emergency preparedness is an area of particularly high activity in terms of new regulations. In 2000, three main regulatory tools issued were i) one that establishes the procedures for communication of accidents and accidental release of pollutants to be adopted by the oil and gas companies, ii) another requiring oil companies to present a program of environmental audits in all their oil and gas facilities in national territory, iii) and a third ruling on the prevention and control of pollution caused by oil and other toxic or hazardous substances in national waters. Despite the laws, no single operator has yet prepared an environmental impact assessment so that it is too soon to know how these regulations will impact on the proposed emergency preparedness of the operators (Armstrong, 2003).
Oil accidents in Brazil have generated political pressure for rapid regulatory response from government authorities, politicians, environmentalists, media, and the general public. However, the institutional framework of the oil industry is still poorly defined due to recent changes in E&P. The new regime added complexity to the framing of a new regulatory system for environmental protection in which the responsibilities of the various actors are inadequately delineated. Some of the regulations are not in place, others are not adapted to the new oil market regime and others have unclear roles because there was never much demand to apply certain regulations. In this unclear institutional environment, a series of institutional conflicts arises between the regulatory body and the regulated industry; between different organizations at the same level of government; between different levels of government; and regarding the public character (Oliveira, 2003).
3. The National Contingency Plan
An emergency plan is a collection of emergency procedures that must be performed to adequately respond to specific accidental scenarios. An emergency procedure also describes the human and material resources required and includes ancillary documentation, such as maps, simulation results, and list of authorities to contact. The local environmental protection agency and other government authorities audit companies from time to time to verify if they have emergency plans that cover all plausible accidental scenarios, and if they have the necessary equipment or access to the required resources within a reasonable amount of time (Fernandes, 2007).
Contingency plans minimize damage caused by a possible oil spill in the sea. In Brazil, the development of these plans has been in charge of companies involved in the exploration, production and transport of oil. CONAMA has established guidelines that should be followed by oil companies in case of accidents with oil spill. This design of the best disaster responses is difficult to be achieved because it depends on several factors such as quantity and type of oil spilled, location of oil spill, weather and ocean conditions, among others. The question is especially difficult to be treated due to the dynamic nature of the marine environment. The aim is to develop disaster responses for various situations that change over time. The prediction of trajectories of the oil spill is essential to properly manage disaster response in a coastal area. The use of computational models for simulation approaches has been applied with promising results (Khroling, 2011).
In case of oil spill, the interests of environmental agencies, non-governmental organizations and of oil companies are inevitably in conflict in the decision process of choosing the best response strategy. In such situations, a consensus to reach the best viable solution is of great importance. The advantages and disadvantages of different types of responses should be weighted. On the one hand, equipment costs and maintenance befall upon oil companies, and on the other hand non-governmental organizations demand the smallest environmental impact on the coastal areas affected by oil spills. In this context, the process to reach a consensus and to elaborate response strategies necessarily involves a process of decision making with multiples objectives that take into account the preferences of the decision agents so that social, economic and environmental factors are considered (Khroling, 2011). It is also important to highlight that many crises can be prevented -- or at least coped with more effectively -- through early detection. The real challenge of response is not just to recognize crises, but to identify them in a timely fashion and with a will to address the issues they represent. A crisis consists of four different phases: prodromal (early symptoms), acute, chronic, and resolution. Recognizing these phases, and dealing with them effectively, gives oil companies and the agencies an important edge in addressing issues of great importance to the oil industry (Darling, 1994).
The Ministry of Environment is the national authority in case of incidents in marine and continental waters. The national authority is advised by a steering committee composed by the Ministries of National Integration -- responsible for the Brazilian Civil Defense --, Mines and Energy, and Transportation, and ANP. The committee is in charge of annual full-scale exercises and detailing operational procedures. The framework is completed by a committee composed by several other governmental organizations aiming to ensure the necessary human and material resources needed by emergency groups integrated by an operational coordinator and a representative of the company responsible for the oil spill assuming the supersivion of response actions (Jablonski, 2011).
In case of incidents with oil spill, the sequence of events to be followed is:
Incident communication
– Sectoral coordination informed
– National significance?
Yes – National Contingency Plan activation
No – Actions restricted to the installation Emergency Plan (PEI) and to the Area Plan
The response action sufficient
Yes – Actions restricted to the PEI and Area Plan
– Sectoral Coordination follows actions
No – Facilitate and amplify the polluter response capacity: Mobilization of the National Plan structure; Gather the Support Committee
– The actions adopted sufficient?
Yes – Sectoral Coordination follows actions
No – The Operational Coordinator assumes the responsibility for response actions
– The Unified Area Command adopts the necessary actions. (Jablonski, 2011)
From the operational point of view, the plan does not identify the possible origin of resources for the “mobilization of additional equipments”. Neither clearly defines the role of states facing the pre-salt area and the main local stakeholders in an event of oil spill. Brazil does not have either a specific fund, like the Oil Spill Liability Trust Fund in the United States to gather financing resources to cope with large incidents or even liability associations as The Offshore Pollution Liability Association (OPOL) in the United Kingdom. A bill under discussion in the Congress, proposed immediately after the Gulf incident, compels concessionaires of exploratory blocks to pay a minimum of 2% of their income aiming the “constitution of a special reserve to cover environmental and socioeconomic damage caused by oil spill…”, but the discussions have not evolved so far. On practical grounds, Brazil has not gotten yet a formal arrangement connecting Ministries and other institutions potentially involved in strategies to deal with large incidents. As the preparedness, mobilization, monitoring and response strategies were conceived as a part of the plan itself, there was not either a progress on these matters (Jablonski, 2011).
In the absence of a National Contingency Plan, the public defender of Rio’s state, André Ordacgy, affirmed that he will file two public civil actions -- one against Chevron for causing environmental damage and another against the Ministry of Environment, in case a National Contingency Plan is not ready within ninety days after the oil spill in November 2011 based on administrative impropriety (Itamaraty, 2011). After BP oil spill in April 2010, José Sérgio Gabrielli, Petrobras’ president, said: “Here in Brazil laws are stricter than in the United States” and “the plan continues to be strongly oriented toward accident prevention” (Millard, 2011).
4. Chevron Oil Spill
The Brazilian Federal Police on November 10, 2011 began investigating an oil spill in an offshore field operated by Chevron. Fábio Scliar, head of the federal police department's environmental affairs division, told government news service that his division began to look into the causes and extent of the spill. A national website quoted Scliar as saying that technicians he sent to the offshore field came back with information that conflicted with that provided by Chevron. He said they only saw one ship being used in the cleanup while Chevron has said there were eighteen being used on a rotating basis. Without going into details he said there was also conflicting information regarding the size of the leak. Chevron has said that the oil spill was between 400 and 650 barrels of oil, but that the company had contained the leak. The company said in a statement that "cementing operations are taking place as part of ... well plugging activities." Chevron said the oil on the ocean surface had "substantially dissipated" and that the slick was down to "less than 65 barrels." Ana Carolina Oliveira, a spokeswoman for ANP, said an estimated 1,000 barrels had leaked to the surface and that it was still unclear if the leak was contained. "We should know by Friday -- November 18th --," she said. SkyTruth, a nonprofit group that uses satellite imagery to detect environmental problems, said on its website the oil spill extended 2,379 square kilometers and that the spill rate was up to at least 3,738 barrels per day. Chevron said in its statement that it "continues to fully inform and work with Brazilian government agencies and industry partners on all aspects of this matter." "If Chevron is not doing what it should -- to contain the spill -- it will be severely punished," Mines and Energy Minister Edison Lobão said. Curt Trennepohl, the president of IBAMA, said in a statement that Chevron has not omitted any information and has implemented all emergency procedures required. In an indication that the oil spill has not been completely stanched he said, "The company will be fined when the spill is contained because the value of the fine is proportional to the environmental damage caused." The well is part of the Chevron-operated Frade project, located 1,200 meters underwater, 370 kilometers off the northeastern coast of Rio de Janeiro state (Lehman, 2011).
Brazilian officials were sharpening their criticism against Chevron and suggesting the company could lose its license to drill in the country's deepest waters. Magda Chambriard, ANP’s director, said during a press conference that Chevron "acted in complete violation of its concession contract and Brazilian law." Officials said the company was unprepared to respond to the spill and accused it of editing video images of the oil seeping from the ocean floor, which Chevron denies doing. Haroldo Lima, ANP’s president, said of the company's recent request to drill another well in the same field, "the result may not be what the company expected previously." Chevron admitted making a critical error that it believes led to the spill. The well has been plugged, the company said, and the oil seepage through cracks in the ocean floor was declining. Chevron said it had believed it was operating within the terms of its concession and was able to stanch the source of the seep within four days. "We have not received any official notice from the appropriate governmental authority" regarding the company's ability to drill onshore or offshore, a spokesman said in a statement. The company faced as much as $139 million in fines; Brazil's leading environmental regulator had already announced a $28 million penalty. Analysts played down the impact of the fines on Chevron, which has $14 billion cash in hand, and the prospect that the second-largest U.S. oil producer could lose it license to operate in Brazil. "I find it hard to believe that they would have to completely walk away and recoup none of their investments," said Blake Fernandez, an analyst at Howard Weil. "That would not set a very good precedent for Brazil to attract other companies to do business" (Fick, 2011).
Federal investigators were threatening potential prison terms for Chevron’s officials if they were found guilty of violating environmental contamination laws. Marina Silva, a former environment minister and presidential candidate, said in a telephone interview that the spill served as a warning as Brazil moved ahead with exceedingly complex projects to produce oil from its “pre-salt” discoveries, beneath waters almost 10,000 feet deep and thick layers of salt, sand and rock. “This event is a three-dimensional alert to the problems that may occur,” Ms. Silva said. “This certainly does not smell good.” Despite Chevron’s assertions that the problem was contained, it faced mounting criticism from various other quarters in Brazil. Legislators said they would summon Chevron officials to appear for questioning. Brazilian President, Dilma Roussef, ordered a fast investigation to identify the exact causes of the incident and the enactment of punishment to culprits (Cruz, 2011).
Chevron plans to continue its expansion in Brazil. As the oil giant tries to contain the political fallout of a spill off the South American nation's coast, auctions for oil concessions in Brazil are now suspended. Chevron was ordered to halt its drilling in Brazil pending investigations by the federal police and other authorities. The company had acknowledged it wrongly estimated pressure and rock strength in the reservoir it was targeting. Chevron is the majority stakeholder in the Frade concession with Brazil's state-run Petrobras and a Japanese consortium. Chevron's chief for Latin America and Africa, Ali Moshiri, described as premature the government's ban on its drilling activities. "We plan to continue participating in new auctions for oil exploration blocks in Brazil, if there is creation of value and benefits," Moshiri said in a press conference in Rio de Janeiro (Coimbra, 2011).
Conclusion
Chevron’s incident revealed internal political battles over the control of pre-salt oil in Brazil. This event has also exposed traditional political structures and drivers for decision making in the country. In addition, the oil spill gave room to nationalist measures and unveiled several contradictions between rhetoric and practice. Brazilian public agencies and civil society have the opportunity to tap into the immediate post-disaster period to set a foundation for broad communication, planning, and legal structures and debates over responsibilities, standards and procedures over emergency responses for national and international companies drilling deepwater horizon oil off the coast. Although crises can have devastating effects on the organization and its stakeholders, these events can also be resolved positively as long as the communication following a crisis plays an integral role in this success (Ulmer, 2011).
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