[ By: Tunku Varadarajan ]
By propagating a message that government can solve all ills, the president made it all too easy to blame him for the Gulf disaster. But it’s not his Katrina, his 9/11, or even his oil spill–the mess is BP’s fault, and should be resolved in the courts. BP did the dastardly deed, of this there is little doubt; and yet Obama is getting pilloried, especially by his own side.

The BP-engineered oil spill in the Gulf of Mexico has us all in a state of national, environmental meltdown. This catastrophe, this “oil-ocaust,” has oozed massively into the national consciousness like some ungovernable evil emerged from the ocean depths. No one, not even Rand Paul, has made a case for it, and we all curse the company–BP–on whose watch the ferocious accident occurred. Writers have been free with their superlatives of calamity, the most common being a likening of the spill to Hurricane Katrina: “Obama’s Katrina,” many have written, glibly judgmental. And going one step further up the ladder of shrillness, Thomas Friedman, the Emperor of Glib, has been imperiously judgmental, calling the spill “Obama’s 9/11.”

The oil spill is none of the above. It is not even “Obama’s oil spill,” if by saying so we mean to ascribe culpability to the president. He didn’t run the rigs, or oversee the plans, or grant the licenses to drill, or write the rules that govern the granting of those licenses. He was just president when the bloody thing happened (cf. Bush, 9/11). Not one iota of this sticky mess is Obama’s doing, by any rational calculus of causation.

Having said that, let me note that “shit happens.” And there is no way known to man to predict everything that can go wrong. Milton Friedman (as the sage Henry Manne reminded me in a recent conversation) had a notion that the euro would collapse; but Friedman thought that it would happen not because of any excess or fraud by any one or more countries–he believed the European Central Bank had some possibility of controlling fiscal policy in the E.U. countries–but by the inability of a central bank to adjust to differing monetary needs. He did not foresee the Greek debacle, and no U.S. government seems to have foreseen the Gulf oil spill.

But back to basics: BP did the dastardly deed, of this there is little doubt; and yet Obama is getting pilloried, especially by his own side. James Carville–than whom there is no man on American soil (or even in American coastal waters) more partisan–has lit into his president, saying, “The president doesn’t get down here in the middle of this… I have no idea why they didn’t seize this thing.” (Seize what, fistfuls of oleaginous goo?) Carville went on, bizarrely, to say that Obama “could’ve demanded a plan in anticipation of this“–my italics, and I want what the Ragin’ Cajun is smoking! He added, for caustic measure, that “it just looks like he’s not involved in this. Man, you got to get down here and take control of this.”

Proof, at last, that Carville is deranged, but proof also of another thing: Once you set out, as a president or a party, to propagate a message that the government has (or is) the panacea for all ills, then failure to deal with an ill leads to your being hoist with your own panacea-petard. If the entire range of your political program rests on the message that the government is the problem-solver, the deliverer from evil, the Messiah, the curative current that runs through our civitas, then a failure to solve a problem, to deliver from evil–or from an evil oil spill–leads to consternation, bafflement, and profound disillusion in the ranks of the faithful. Carville’s rant is the rant of the blind adherent who cannot believe that the forces he worships have been unable to wave that magic governmental wand and make the horrible stuff just go away. So he beats up on Obama, just as an impotent Obama, who really has no means to control the oil spill, beats up on BP.

BP may or may not, without time-consuming but inevitable trial and error, have the means to control the spill; but it sure as hell has all the incentive in the world to try to force this oil genie back into its oceanic bottle. As Peter Van Doren and Jerry Taylor of the Cato Institute have written, “BP has lost 19 percent of its market value in the stock market–a bit more than $36 billion–from the April 20 explosion until May 11…” And as The Wall Street Journal points out in an editorial on Tuesday, the estimate for BP’s cleanup tab is looking decidedly nontrivial: $760 million.

So what to do about this epic oil spill? Perhaps this is radical, but I would leave it up to the common law, that vigorously pragmatic and empirical wonder that keeps our society functioning through peace, through war, and, one trusts, through oil spills. Courts can assess whether there has been actionable negligence, and can allocate damages; or they can, as Richard Epstein has suggested, ascribe strict liability to BP and all its operating partners: You changed the condition of the seabed; an oil spill resulted; ergo, you’re liable, end of story. The U.S. government does not have much, if any, role to play in this matter: In fact, the government is useless at this stage because it neither foots the bill nor understands the technology. BP does both.

So let this be a matter for BP and the courts. Let us remember that the ex ante motivating force of the common law has served successfully to make potential tortfeasors take an optimal amount of precaution. We don’t want them taking too much precaution, such as stopping all offshore drilling, or taking too little–as may have been the case with BP here (for which it will, surely, pay the price). The law of torts is an ongoing process of precautionary calibration of risk by those who manufacture or drill in our midst, in which companies have an irrefutable incentive to be safe: Oil companies, as Van Doren and Taylor point out, “do themselves no economic favors by underinvesting in safety.”

The common-law approach is the only one that makes sense for dealing with this kind of issue. But will the Carvilles out there, to whom the White House is programmed to respond, allow that to happen? Don’t bet on it.

Dick Morris asks if Gulf oil spill is “Obama’s Katrina…or much worse“

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