What BP Owes America

By David Yarnold, Politico

21 October 13

he BP oil spill civil trial in U.S. district court in New Orleans is an important moment for the future of the Gulf Coast, the efficacy of U.S. environmental protections and the accountability of corporations under the rule of law.

Let's remember what's at issue here. This was by far the largest offshore oil disaster in America's history. The multinational energy behemoth is on trial for its role in the horrific 2010 disaster that killed 11 men and spawned an immense ecological and economic catastrophe, the effects of which are still rippling their way through families, communities and all of nature.

But BP has filed at least a dozen legal cases and is spending hundreds of millions of dollars on TV, online and full-page print ads to obscure the facts. They want you to think they're a victim of fraud and injustice - when they've already admitted to criminal acts.

Arguments in phase two of the trial in Judge Carl Barbier's courtroom ended Friday. He is expected to issue his ruling in the coming months. At stake are the outcomes of disputes over two things: who did what to try to stop the blowout and ensuing spill, and how much oil gushed into the Gulf of Mexico before the well was sealed, three months after the disaster began.

This last point is critically important to the future of the Gulf Coast. The U.S. Clean Water Act assesses civil penalties for every barrel of oil discharged. And under the terms of the strongly bipartisan RESTORE Act, which Congress approved last year, the bulk of those penalty dollars will go to the Gulf states to assist with their environmental and economic recovery. The Justice Department says 4.2 million barrels worth of oil escaped. BP puts that number at 2.45 million. And because per-barrel fines could range from $1,100 to $4,300, billions of dollars are at stake.

Why has the corporation ramped up its legal and PR campaign? The answer is pretty obvious: First, BP underestimated how much it would have to pay for the initial claims of damage to property, livelihoods and lives. Second, it wants to soften the beachheads of public opinion for subsequent legal appeals. It doesn't want us to focus on the fact that this massive environmental insult poured enough oil into the Gulf to fill the reflecting pool in front of the Lincoln Memorial every day for the next 129 years.

The company's PR machine thinks it has struck gold with allegations of wrongdoing surrounding a settlement it negotiated with private plaintiffs earlier this year. A divided federal appeals court in Houston recently found that the formula used to measure potential losses by claimants needed to be clarified. Let's stipulate that fraudsters should be held accountable; problems in the private claims process should be rooted out and dealt with. Former FBI Director Louis Freeh found evidence of unethical and possibly criminal behavior by some attorneys, but he didn't find anything suggesting fundamental abuse of the claims process. Judge Barbier had harsh words for BP's misdirection campaign, and with phase two of the trial underway, it's imperative to keep a sharp focus on BP's accountability under U.S. environmental laws.

What if, instead of seeing BP's feel-good messaging, Americans saw the images of infant dolphins that are dying at record rates or the eggs of migrating American White Pelican eggs that have turned up with oil and dispersants as far away as Minnesota? Ask a scientist not wearing a white coat with a BP logo and she'll tell you that complex marine ecosystems are really oceanic tinderboxes. We simply don't know what the effects of all of that oil and dispersant will be.

The Louisiana Department of Natural Resources has just reported that 3.01 million pounds of "oily material" were cleaned up on Louisiana's coastline in the first eight months of this year. That is a 20-fold increase in the oil collected last year. The state does not yet know the reason for the dramatic increase, but those figures are far in excess of what we've come to accept as "normal" leakage from the Gulf's floating industrial zone.

BP has already pleaded guilty to 14 criminal charges, ranging from lying to felony manslaughter. It is effectively a convict on probation, having agreed to four years of monitoring of its safety procedures and its ethics. The company paid for the immediate clean-up costs because that's its legal responsibility. So are civil fines under the Clean Water Act, which is the focus of the hearings that begin next week.

BP also still owes penalties under the Natural Resource Damage Assessment (NRDA), which calculates the cost of restoring devastated wildlife. The NRDA process puts a value on the head of every brown pelican killed or harmed, every dolphin, every laughing gull. The penalties are then used in restoration efforts, like rebuilding wetlands.

BP is the sixth-largest corporation on the planet. It is not a victim; it's on trial for its mistakes. At a time when many Americans wonder if too-big-to-fail corporations are above the law, we need to see that our bedrock environmental regulations are enforced because they were written for events just like the BP spill.