The war on energy: why the United States and the international community need cohesive energy infrastructure security policy.

The MTSA requires a National Maritime Transportation Security Plan. (95) This plan calls for "efficient, coordinated, and effective action to deter and minimize damage from a transportation security incident...." (96) Further, the plan requires "[a]ssignment of duties and responsibilities among Federal departments and agencies and coordination with State and local governmental agencies." (97) This National Maritime Transportation Security Plan also calls for techniques that will deter a transportation security incident. (98) Furthermore, the Plan calls for the establishment of Coast Guard security teams and Federal Maritime Security Coordinators. (99) Among numerous other missions, these maritime security teams are to be trained and equipped to have the capability to respond to threats of maritime terrorism, react to acts of maritime terrorism, and deploy domestically or internationally as a supplemental force to already committed U.S. armed forces. (100)

Significantly, the ultimate authority for preparing the National Maritime Transportation Security Plan is the "Secretary of the department in which the Coast Guard is operating." (101) The MTSA effectively added a branch of the armed forces to the Department of Homeland Security for the purposes of securing ports and port facilities by placing the Coast Guard under that Department's organizational responsibility. (102)

The next levels of plans below the National Maritime Transportation Security Plan are the Area Maritime Transportation Security Plans. (103) These sets of area plans designate the specific areas secured by the National Maritime Security Plan and the types of infrastructure, special economic importance, and national security interests included in those areas. (104) The plans are required to be integrated with one another. (105)

The final levels of plans covered under the National Maritime Transportation Security Plan are the Vessel and Facility Security Plans. (106) These plans require individual owners and operators of vessels and port facilities to prepare and submit a security plan relating to their specific property to the Secretary of Homeland Security. (107) These nuts-and-bolts plans require specific details of vessel and facility security including area access, security training, and periodic unannounced security drills. (108)

This layered system of security plans has been called a "family of plans," with the more specific individual Vessel and Facility Security Plans evolving from the larger Area Plans and ultimately the National Plan. (109) The practical effect of this "family of plans" is the organization of Harbor Security Committees, which consist of industry members and port shareholders who have come together to implement the security plans in their specific areas. (110)

If Congress sees fit to mandate a National Maritime Transportation Security Plan and multiple layers of security plans that fall beneath, then the requirement of a national energy security plan would also be appropriate. As discussed previously, terror organizations clearly recognize the value of attacking energy infrastructure. (111) Given the awareness that terrorists are inclined to strike U.S. energy assets and the severe economic toll energy infrastructure attacks have taken on the Iraqi economy, (112) federal energy legislation should be enacted. Such legislation should clearly define national energy security policy, delineate a national energy security plan, and mandate multiple layers of subordinate plans similar to the MTSA. The practical effect of national energy security policy could be similar to that of the MTSA in that it might spur the formation of energy security committees and commit industry members to the implementation of the national energy security provisions.

Since the attacks of September 11th, the energy industry has proactively reviewed its internal security measures and worked with governmental officials to prevent future terrorist strikes. (113) Some energy executives even procured security clearances to receive classified information from the Department of Homeland Security. (114) Additionally, the National Petrochemical and Refiners Association and the American Petroleum Institute promulgated a set of guidelines, entitled the "Security Guidance for the Petroleum Industry," currently in use at energy facilities worldwide. (115) These security measures are positive signs the energy industry is aware of the terrorist threat to energy infrastructure and is willing to take action. Nonetheless, if the federal government felt it necessary to enact a National Maritime Transportation Security Plan (116) as opposed to leaving it to private industry and port authorities, then it cannot be content to allow private industry to set the standard in securing U.S. energy assets. The Federal Energy Regulatory Commission (FERC) listed "[w]ork[ing] with other agencies and industry to address and improve infrastructure security" as one of its primary goals for the period of 2004 through 2008. (117) FERC has a tremendous opportunity to act on that objective by assisting in the drafting and implementation of national energy security policy and working with other agencies in its execution. The U.S. government must not allow the initiative of private industry (118) to stand in for its responsibility to ensure the security of energy infrastructure in the United States.

2. Regulating Security

Another practical effect of the MTSA has been the regulations promulgated to enforce its provisions. On January 1, 2004, the Coast Guard implemented new regulations for seafaring vessels, offshore oil and gas platforms, and port facilities. (119)

The Coast Guard regulations are extensive and detailed. Port facilities are required to have Facility Security Officers (FSO) to assist in the development of their assigned facility's Facility Security Plan. (120) FSOs must be aware of current security threats, laws, and codes relevant to their facility. (121) Additionally, FSOs must ensure their facility conducts a security drill every three months. (122) Port facilities also undergo Facility Security Assessments in which the facility owner or operator is required to provide information regarding the facility to assure the FSO that the facility is in compliance with the overall Facility Security Plan. (123) This level of detailed security at ports and port facilities should be implemented in regard to all energy infrastructure with federal regulations similar to that of the Coast Guard regulations.

The difficulty with promulgating security regulations for all energy infrastructure is the cost related to their implementation. Port security managers are faced with the burden of strengthening perimeter fencing and installing alarm systems, among many other extensive security measures. (124) The energy industry may argue the economic drain of complying with national energy security regulations would outweigh the benefit of such compliance. (125) The maritime industry likely made a similar argument--since 2002, the federal government has spent $560 million in grants to ports and other entities to fund programs meant to reduce the vulnerability of ports and port facilities to maritime terrorism. (126) These federal funds have gone to port authorities, vessel operators, and private companies for projects such as fence and gate enhancements, surveillance equipment, and patrol vehicles. (127) The Coast Guard estimated the cost of enacting the various security provisions of the MTSA to be $1.5 billion for the initial year and $7.3 billion over ten years. (128) If the federal government is willing to provide grants and subsidize the security of port and port facilities, the government should show equal willingness in supporting the energy industry's compliance with federal energy security regulations.

The enactment of the MTSA suggests the federal government is taking the threat of maritime terrorism seriously. (129) The mass of regulations and provisions of the MTSA (130) and the extensive requirements necessary to implement Facility Security Plans (131) demonstrate the high regard the federal government gives to maritime security. The elaborate network of maritime security plans incorporated in the MTSA, the reorganization of the Coast Guard under the Department of Homeland Security, and the money the federal government doled out to ensure compliance with MTSA provisions illustrate the recognition that acts of maritime terrorism could wreak serious economic havoc on the United States. (132) Because the terrorist attacks of September 11th did not involve U.S. seaports, the estimated costs of a maritime terrorist attack are largely theoretical; (133) however, the potential costs are clearly compelling enough for the federal government to enact the MTSA. The evidence of severe economic repercussions on the U.S. economy predicted by the Oil Shockwave exercise is also largely theoretical, (134) but it should be equally as compelling as the federal government's basis for enacting the MTSA to prompt the federal government to enact similar legislation regarding energy security.

3. Federal Energy Security Guards