Milloy falsely claims Jones Act has prevented international help in oil spill cleanup

Milloy falsely claimed Jones Act has prevented foreign help in Gulf cleanup effort. In a July 2 Washington Times op-ed, Milloy claimed that "[t]he Jones Act has prevented foreign companies from bringing in skimmers to help clean up the oil."

Allen: “We at no time in the course of this response have been inhibited by” the Jones Act. In a July 2 press briefing, Coast Guard Adm. Thad Allen stated: “We at no time in the course of this response have been inhibited by anything have to do with what we call Jones Act or Jones Act Labors. All of the vessels that are operating outside three miles do not require Jones Act waiver and we've been able to use four and five vessels out there, as we have needed.” From Allen's press briefing:

ALLEN: We at no time in the course of this response have been inhibited by anything have to do with what we call Jones Act or Jones Act Labors. All of the vessels that are operating outside three miles do not require Jones Act waiver and we've been able to use four and five vessels out there, as we have needed.

There have been consideration given to Jones Act and we are looking right now at the Jones Act waivers for the four or five vessels that are working offshore because of the weather in the even that they might need to come into port because of the hurricane season we wanted to make sure that they were covered by that. So throughout this week we've been considering waivers for the production vessels that are out there that are foreign flag.

But other than that, there have been no inhibitions or constraints put on this response related to any Jones Act waivers moving forward.

U.S. has accepted international offers for cleanup effort. During his July 2 press briefing, Allen said that "[w]e've received 107 offers of foreign assistance from 44 countries and four international organizations. Sixty-eight of those offers were really government-to-government -- this one government extending the offer of equipment or personnel or supplies to us. Thirty-nine of those offers were by private offers, which become another potential source of supply for the types of equipment we might need." He went on to explain:

ALLEN: Out of the 68, government-to-government offers to date 35 appear to be equipment or resources that we could use. We've accepted nine of those offers already and 24 of those offers are being processed right now through the State Department for acceptance. This is an ongoing process has been from the start but wanted to give you an update here.

Of the 39 private offers, it looks like 30 of those are equipment or types of materials that we could use. Those have been provided to our folks that are out there acquiring whatever it is booms, dispersants, or skinny material and they become part of the broader source of supply that we're pursuing in trying to resource our operation moving forward.

Gibbs: 24 foreign vessels working in Gulf. In a July 1 press briefing, White House press secretary Robert Gibbs called the claim that the Obama administration took 70 days to accept international offers for help a “myth” and stated: “There were already 24 foreign vessels that were operating in the Gulf before the State Department announced two days ago additional international assistance. As early as May 11th, boom had arrived from Mexico, Norway and Brazil.” Gibbs also called the suggestion that the Jones Act has hindered the oil spill response a “myth.”

Acting Maritime administrator: "[T]wenty-three percent of the vessels responding to the oil spill are not U.S.-flag," and they are “not in violation of the Jones Act.” David Matsuda, acting Maritime administrator, stated in June 17 congressional testimony that "[d]uring the current situation in the Gulf of Mexico, U.S.-flag vessels have been used in every situation where U.S. vessels and crew are available. Seventy-seven percent of the vessels providing oil spill response in the Gulf are U.S.- flagged." He added: “Even though twenty-three percent of the vessels responding to the oil spill are not U.S.-flag, none of these are known to be in violation of any U.S. law or regulation. Vessels that do not call upon points in the United States are not in violation of the Jones Act.”

Foreign equipment has also been used. Gibbs stated during the June 15 edition of Fox News' Fox & Friends that “foreign entities are operating within the Gulf that help us respond” to the oil spill. Gibbs also stated in a June 10 press briefing that “we are using equipment and vessels from countries like Norway, Canada, the Netherlands. There has not been any problem with this. If there is the need for any type of waiver, that would obviously be granted. But this -- we've not had that problem thus far in the Gulf.” Fox News reporter Brian Wilson wrote on June 10 that "[t]he Coast Guard and the Administration are quick to point out that some foreign technology is being used in the current cleanup effort," including containment boom and skimmers.

Oil spill response ships operating outside of three miles offshore are not subject to Jones Act. Rear Adm. Kevin Cook, Coast Guard director of prevention policy, stated during a June 17 House hearing (accessed via Nexis): “I would not call [the Jones Act] an impediment because foreign-flagged skimmers can be -- they're treated as oil spill response vessels. And if they're operated outside of three miles, they are not impacted by the Jones Act.” For reference, the Deepwater Horizon rig was reportedly drilling about 50 miles offshore. Allen also stated during a June 25 press conference:

If the vessels are operating outside state waters, which is three miles and beyond, they don't require a waiver. All that we require is an Affirmation of Reciprocity, so if there ever was a spill in those countries and we want to send skimming equipment, that we would be allowed to do that, as well, and that hasn't become an issue yet, either.

Similarly, in a June 18 document, the National Incident Command stated that “foreign specialized skimming vessels may be deployed to response operations if the foreign country provides the same privileges to U.S. vessels. The use of such vessels under these circumstances would not violate the Jones Act or require a Jones Act waiver.” And Matsuda said in the June 17 hearing that the Jones Act “allows the Coast Guard federal on-scene coordinator to make an exception to the Jones Act in the aftermath of an oil spill like we are dealing with here. This exception process is designed to allow immediate attention and processing of requests for oil spill response vessels.”

National Incident Command: "[W]e have not seen any need to waive the Jones Act" but are prepared to process waivers “should that be necessary.” In the June 18 document, the National Incident Command stated: “While we have not seen any need to waive the Jones Act as part of this historic response, we continue to prepare for all possible scenarios, and that's why Admiral Allen provided guidance to process necessary waivers as quickly as possible to allow vital spill response activities being undertaken by foreign-flagged vessels to continue without delay should that be necessary.” The document further states:

In no case has the Federal On Scene Coordinator (FOSC) or Unified Area Command (UAC) declined to request assistance or accept offers of assistance of foreign vessels that meet an operational need because the Jones Act was implicated.

Republican Jones Act expert reportedly said there is no evidence that the law is hindering cleanup. The Chicago Tribune reported on June 25:

The administration and Allen said the Jones Act had not prevented the response team from accepting the offers. In a June 11 news briefing, Allen, the national incident commander, said, “We are more than willing to consider Jones Act waivers,” and noted that foreign vessels were being used. A statement issued June 18 said that 15 foreign-flagged vessels were involved in the cleanup, and none required Jones Act waivers.

That's in part because of a specific exemption in the act that can allow for the use of foreign “oil spill response vessels,” said H. Clayton Cook, a Washington attorney and expert on the Jones Act.

Cook, a Republican, said there had been longstanding opposition to the act, which many see as protectionist and a bow to unions, but there was no evidence that the Jones Act was standing in the way of the cleanup. “This is being used for political purposes. It's a classic red herring.”

FactCheck.org: “Jones Act has yet to be an issue in the response efforts.” FactCheck.org noted on June 23, “Some critics have charged -- falsely -- that Obama's refusal to waive the Jones Act has kept foreign vessels from assisting in cleanup efforts.” FactCheck.org stated:

In reality, the Jones Act has yet to be an issue in the response efforts. The Deepwater Horizon response team reported in a June 15 press release that there are 15 foreign flagged ships currently participating in the oil spill cleanup. None of them needed a waiver because the Jones Act does not apply. The Jones Act is a trade and commerce law that was enacted in 1920 as part of a larger Marine Merchant Act. It requires all trade delivered between U.S. ports to be carried in U.S. flagged vessels constructed in the United States and owned by American citizens. The law states its purpose is to develop a merchant marine for national defense and commerce.

Why was the Jones Act waived as part of the Hurricane Katrina response, and why hasn't it been waived now? Katrina inflicted massive infrastructure damage, which restricted the availability of key resources. According to the Deepwater Horizon response team: “A Jones Act waiver was granted during Hurricane Katrina due to the significant disruption in the production and transportation of petroleum and/or refined petroleum products in the region during that emergency and the impact this had on national defense.” The Deepwater Horizon spill has yet to affect infrastructure or oil and gas availability; the damage is environmental, and foreign vessels are approved for delivering resources and conducting offshore skimming. Although the Jones Act is currently not applicable, the federal government has taken steps to expedite the waiver process should the oil spill response require a Jones Act waiver for trade and commerce.

Milloy falsely suggests Dutch skimmer systems not currently being used in the cleanup

From Milloy's Washington Times op-ed:

The Environmental Protection Agency (EPA) blocked skimmer systems offered by the Dutch because water discharged back into the Gulf after processing wouldn't be sufficiently oil-free. It doesn't matter that the water put back into the ocean would have been much cleaner than what was taken out of the ocean. EPA regulations nonsensically only allow pure water to be discharged back into the ocean, even in the process of cleaning up an oil spill.

In fact, Dutch skimmers have been involved in cleanup for months. Contrary to Milloy's claim, The Christian Science Monitor reported on July 1 that in April, three days after the spill, the EPA " turned down" the Dutch government's offer of skimming equipment due to discharge regulations, but that "[a] month into the crisis, the EPA backed off those regulations, and the Dutch equipment was airlifted to the Gulf." From The Christian Science Monitor:

Three days after the accident, the Dutch government offered advanced skimming equipment capable of sucking up oiled water, separating out most of the oil, and returning the cleaner water to the Gulf. But citing discharge regulations that demand that 99.9985 percent of the returned water is oil-free, the EPA initially turned down the offer. A month into the crisis, the EPA backed off those regulations, and the Dutch equipment was airlifted to the Gulf.

Milloy claims delay in sand berm construction the result of “an entirely bureaucratic environmental impact statement”

From Milloy's op-ed:

Then there's the Army Corps of Engineers' delay of the construction of oil-blocking sand berms pending completion of an entirely bureaucratic environmental impact statement.

In fact, Army Corps of Engineers studied plan as required by law and expressed concerns over proposal. The Associated Press reported on May 24 that “the Corps said it is working as quickly as possible on the emergency permit request -- but still has to follow various steps required by federal law.”

Army Corps reportedly raised concerns that barriers “could instead funnel oil into more unprotected areas and into neighboring Mississippi.” The AP reported on May 26 that the Army Corps released documents that day that “signaled support for parts of the state plan, including berms that would be built onto existing barrier islands,” but stated that parts of the plan “could inadvertently alter tides and end up driving oil east -- into Mississippi Sound, the Biloxi Marshes and Lake Borgne.”

Army Corps approved portions of the plan “after careful consideration of the available information.” On May 27, the Army Corps announced that it approved portions of the plan to create sand berms between barrier islands off the coast of Louisiana. The White House approved additional portions of Lousiana's berm plan on June 2.

Allen reportedly continued to express concerns about proposal but said “the prudent thing ... was to start a pilot project and keep asking questions.” On May 28, AP reported that Adm. Thad Allen “approved portions of Louisiana's $350 million plan to ring its coastline with a wall of sand meant to keep out the Gulf of Mexico oil spill.” The article noted that the Army Corps had objected to portions of the plan due to concerns about oil being diverted to Mississippi and that Allen also “said some sections of the berm system would not have kept out oil,” as well as potentially “interfer[ing] with cleanup.”