Lessons from the North Sea: Should "Safety Cases" Come to America?

Abstract

The catastrophic oil spill in the Gulf of Mexico last spring and summer has triggered an intense search for more effective regulatory methods that would prevent such disasters. The new Bureau of Ocean Energy Management, Regulation, and Enforcement is under pressure to adopt the British safety case system, which requires the preparation of a facility-specific safety plan that is typically several hundred pages long. This system is supposed to inculcate a “safety culture” within companies that operate offshore in the British portion of the North Sea, because it overcomes a “box-ticking” mentality and constitutes “bottom up” implementation of safety measures. Safety cases are strictly confidential; only company officials, regulators, and, in limited circumstances, worker representatives, are allowed to see the entire plan. This Article argues that the safety case approach should not come to America because this confidentiality, as well as the levels of risk tolerated by the British system, conflict with the both the spirit and the letter of American law. American regulators also lack the resources necessary to make a safety case regime minimally successful.