Trial of the Century: US to Prosecute BP

By Patrik Jonsson, The Christian Science Monitor

25 February 13

What once seemed likely - a settlement - now appears off the table as the US prepares to take BP to court in New Orleans on Monday, alleging the company exhibited 'gross negligence' in the lead-up to the Deepwater Horizon disaster in 2010. At stake: $17 billion.

eemingly as complex as the Gulf of Mexico itself, the federal civil trial against the operators of the doomed Deepwater Horizon oil rig is set to begin Monday - a high-dollar showdown pitting oil giant BP's cash wealth against the legacy of one of America's richest, yet most troubled wildlife habitats.

The April 20, 2010 spill that began with an explosion that killed 11 rig workers and ended three months later with over 200 million gallons of light crude spilled into the Gulf still resonates physically and psychologically in the five coastal states affected, even as BP, the chief speculator, has gone to massive lengths to clean up the mess while paying billions in damages to residents and communities along the sullied coastline.

But Monday's trial, which could take three months, is about answering the still-critical subjective question: Did BP exhibit "gross negligence" in its operation of the rig, causing the largest offshore oil spill in US history? If so, the company could be on the hook for up to $17 billion in damages, after having already paid out $24 billion.

"I thought that there would be considerable pressure on BP in particular to settle, since they are most likely to bear the heavy share of the damages and that they would have not looked forward to being on the front pages every day in an ongoing trial," says Edward Sherman, a disaster liability expert at Tulane University Law School, in New Orleans.

To be sure, the defendant side of the docket is complex, since the trial judge (there is no jury) will have to decide what percentage of responsibility each of the three major players - BP, the speculator; Transocean, the rig owner; and Halliburton, a key drilling consultant - will have to bear if found responsible.

But the plaintiff side, too, is rife with tension, particularly because joining federal lawyers and environmental groups are five separate affected states - Florida, Alabama, Mississippi, Louisiana, and Texas - all of which have differing thoughts on whether to settle the case quickly for maximum payout or push BP into a trial that will illuminate how deeply the spill affects not just wildlife, but everyone from fishermen to hotel owners, bartenders, and maids.

Part of the problem is that plaintiffs don't want to take a deal that's inadequate given lingering unknowns, including potential future problems from the spill.

"It will be years, even decades, before we understand the true impacts of the spill," says Chris Canfield, a vice president of the National Audubon Society, in a statement. "The law requires BP to compensate the American people for all the damage that was done - for every smothered blade of marsh grass and for every oiled pelican - as well as for any long-term effects we may have not yet seen.... The outcome of this case must ensure that BP will be held fully accountable not only for the damages we see today, but also for any damages we will discover years from now."

In a way, the parties involved will be treading familiar ground.

Other court cases and congressional investigations have all expounded on the series of events that led to the massive explosion and fire that eventually sunk the Deepwater Horizon, crumpling a riser pipe of oil and disabling emergency shutoff valves at the wellhead, almost a mile below the Gulf's surface.

A nation watched in horror as underwater cameras attached to remotely controlled submersibles documented the underwater geyser of heavily pressurized crude oil, all of which led to massive fishery closures and a six-month shutdown of new drill sites in the Gulf.

While BP has claimed responsibility, the ultimate legal liability is not cut-and-dried as US District Court Judge Carl Barbier has made clear that the two other companies also may bear blame for what became a domino effect of missed signs and overlooked problems that finally led to the explosion.

Government lawyers, meanwhile, will bring evidence they say proves that accident was ultimately avoidable, and that the companies carelessly and negligently cut corners as they hunted for profit.

"Gross negligence is a very high bar that BP believes cannot be met in this case," Rupert Bondy, BP's general counsel, said last week in a statement. "This was a tragic accident, resulting from multiple causes and involving multiple parties. We firmly believe we were not grossly negligent."

In the almost three years since the spill, authorities have struggled to pinpoint exact damages. People on the coast say oil from the spill continues to wash ashore during heavy storms. Some experts say higher than usual dolphin mortality rates may be tied to the spill, where those marine mammals may be signaling the poor health of the ecosystem.

Yet it's also hard to determine an exact cause of such events, given other pollution problems in the Gulf, including vast "dead zones" caused by an excess of upstream agricultural pollution.

"It's going to be very, very hard unless you can isolate a particular substance to work out the toxicology here," Dr. Moby Solangi, president of the Institute for Marine Mammal Studies in Gulfport, Miss., tells the Guardian newspaper.

Even if the trial gets going Monday, a settlement may still come depending on how the first few days go, and as lawyers on both sides get a sense of what the other side has up its sleeve. And BP has a history of such moves: All four trials that began in the aftermath of the 2005 explosion at a BP refinery in Texas City were eventually settled before the court could make a ruling.

"There are a number of issues involved and lots of money at stake, so it's easy to see how settlement talks could break down," says University of Michigan Law School professor David Uhlmann, the former chief of the Department of Justice's Environmental Crimes Section, in an email to the Monitor. "Still, going to trial raises enormous risks for both sides."