May 26 (Bloomberg) -- At least one federal crime had indisputably been committed when oil started spewing into the Gulf of Mexico and approached land. Another criminal act became clear when the first oil-covered sea bird died.
Even if everyone involved in the Deepwater Horizon disaster did precisely what they were supposed to do, if every crew member, each manager and all suppliers followed every regulation diligently, the oil globs reaching shore and the deadly crude covering pelicans signal crimes just as clearly as would a body with a dagger through the heart.
“Someone’s going to be criminally prosecuted for this,” says David M. Uhlmann, who for 17 years worked as a prosecutor for the Justice Department’s environmental crimes section, including seven years as the unit’s chief.
The questions are: who, and for what crimes?
BP Plc tops the list of suspects because the company leased the rig, owns the oil and to some degree oversaw the operation. But Transocean Ltd., which owns the rig and supplied most of the staff, no doubt has its lawyers working defensively right about now. And then there’s Halliburton Co., which cemented the well.
As for laws that were clearly broken, there are two that let prosecutors slam-dunk convictions with no evidence of negligence or intentional wrongdoing. Many a white-collar case has floundered on the problem of proving criminal intent. These environmental laws make that unnecessary.
Environmental Statutes
The 1918 Migratory Bird Treaty Act protects fowl. The Refuse Act, part of the 1899 Rivers and Harbors Act, outlaws industrial discharge in navigable waters.
OK, they are both misdemeanors punishable by minor fines, but stay with me here.
Even a misdemeanor conviction would remove the $75 million cap on damages that the Oil Pollution Act sets. BP says it will pay all legitimate damages from the spill, regardless of the cap, but fisherman still suffering from the Exxon Valdez spill 20 years ago would urge caution in believing such promises.
Bumping it up a notch by showing negligence, prosecutors can win a conviction under the Clean Water Act, and there’s every reason to believe that can be shown here. Negligence means an absence of due care, say in keeping the blowout preventer working to, um, prevent a catastrophic blowout, for example.
All right, a negligence conviction would be a misdemeanor, too, but it carries a fine that could decimate any company charged in this catastrophe: up to twice the damages the spill caused. And an individual charged could spend a year in jail, which would seem a lot for an oil-company manager.
Proving Felonies
To get into felony territory is trickier. For that, prosecutors need to show that companies or people acted “knowingly.”
Surely no one knew they would be wreaking ecological devastation on the Gulf of Mexico, ruining a coastal fishing industry, crippling tourism or trashing beachfront property values when they were operating the Deepwater Horizon, even if they took a shortcut or two.
That kind of knowledge doesn’t have to be proven to make a felony case. A BP subsidiary admitted felonious guilt in a deadly 2005 explosion at a Texas City, Texas, refinery and when another BP operation spilled 200,000 barrels of oil into Prudhoe Bay in Alaska.
Uhlmann, who now teaches law at the University of Michigan, says that if sufficient evidence emerges, the government could win felony convictions under the Clean Water Act by proving those in charge knew the operation had serious problems and continued to run it anyway.
Eyewitness Account
That seems the case laid out in a CBS “60 Minutes” interview with Mike Williams, chief electronics technician on the Deepwater Horizon.
He said that before the explosion, the rig’s blowout preventer coughed up broken pieces of a crucial rubber seal. A supervisor said it was no big deal.
And when a crew member’s error broke part of the blowout device’s emergency backup system, no one much cared about that, either, Williams told “60 Minutes.”
Then, when it came time to close the new well in preparation for pumping, a BP manager demanded the crew use a quicker, riskier way than the standard process the Transocean manager had planned, according to Williams.
It could turn out that Williams’ account is flawed, or that none of those problems led to the explosion, or that BP and Transocean did everything they reasonably could to prevent the 11 deaths and thousands of barrels of still-spewing oil that’s now coating wildlife and washing ashore on beaches and wetlands.
Legal Thresholds
But if someone filed a false report, manipulated a test result or showed any attempt at deceit, that would ratchet up a Clean Water case to a felony. It could also trigger prosecution for fraud, obstructing justice or filing a false statement against the individuals involved, as well as their employer.
In this case prosecutors will be driven to be as aggressive as possible, says Uhlmann, given the gravity of what’s occurred and previous convictions by BP subsidiaries, all of them accompanied by promises to do better.
And yet, even the misdemeanor crimes we know were committed led to a calamitous result. They could also lead to ruinous penalties to those responsible.
