In a bombshell federal court filing, U.S. government lawyers are slamming British Petroleum for making false and misleading statements that seek to both dodge blame for 2010’s Deepwater Horizon catastrophe and ignore the ongoing environmental devastation, from diseased dolphins to destroyed wetlands.
The papers filed late last week by the U.S. Justice Department’s top environmental lawyers and New Orleans U.S. Attorney Jim Letten charge that BP’s effort to show the fairness of a proposed $7.8 billion settlement with thousands of Gulf Coast residents and businesses harmed by the spill is instead larded with falsehoods.
The federal government’s 37-page objection to BP’s legal claims blast the oil giant’s “culture of corporate recklessness” that led to the Deepwater Horizon disaster and argue that BP wants the court to overlook deceased dolphins in Louisiana’s Barataria Bay and dying deep-sea corrals that are sickening fish in Gulf of Mexico.
And the feds are not alone in accusing BP of going over the line in trying to justify the pending $8.7 billion settlement. In a separate filing, Alabama Attorney General Luther Strange also accuses the oil company of misrepresentation and argues that BP committed “willful misconduct” by attempting a risky “top kill” method to stop the 2010 spill, when it knew that method would fail.
The hard-hitting arguments against BP are in advance of a major November hearing before U.S. District Judge Carl Barbier. The judge is overseeing the massive civil case tied to BP’s liability for the spill, which dumped roughly 5 million barrels of oil into the Gulf. Barbier is now tasked with deciding the fairness of a proposed settlement.
Scores of plaintiffs — including some represented by my law firm — are challenging the deal as unfair, ignoring issues such as the long-term neurological damage to clean-up workers and other Gulf residents who were exposed to massive amounts of the toxic dispersant Corexit that was deployed by BP.
Neither the federal government nor Alabama is a party to the $7.8 billion settlement. Instead, each is pursuing its own civil case — and, in the case of the federal government, an ongoing criminal investigation — against BP in other proceedings slated to begin next year. In objecting to BP’s filing in this case — a defense of the settlement’s fairness — the feds and Alabama are expressing their concern that the proceedings before Barbier could, in effect, put a legal seal of approval on what they consider to be false or misleading claims by the oil company, which could then hurt their future cases.
Indeed, the federal papers state the goverment had no initially intention of getting involved with the proceedings before Barbier, but its lawyers were forced to respond because of “new evidence, and plainly misleading representations” made by BP. In essence, the feds are disputing the very factual underpinnings of the settlement.
The federal filing is hugely important for several reasons. Perhaps most importantly, it puts government agencies solidly behind some of the key allegations made on this blog and elsewhere over the past two years — that BP isn’t telling the truth when it tries to convince the American people in slick TV commercials that everything is back to normal in the Gulf and that BP is a responsible corporate citizen.
The filing notes:
* Dolphins in Barataria Bay, Louisiana, are showing signs of severe ill health.
* Certain deep-sea corrals have been identified as dead or dying, and populations of plankton-eating fish that reside on certain corrals are significantly decreased.
* Heavy marsh oiling that “could cause negative impacts to marsh vegetation for decades to come.”
Federal prosecutors state clearly that a multi-year, multi-million-dollar assessment of damage to natural resources caused by the Deepwater Horizon shows what it calls “indications of harm” to the environment along the Gulf Coast. It notes — in a stark rebuttal of BP’s claims of a major recovery in the Gulf ecology — that “while it is true that many resources are in a better condition than at the height of the spill, — after all, they are no longer slathered in layers of BP’s oil — it is also true that they continue to suffer significant harm…”
The court filing notes — as has been reported here in the past — that scientific research has shown that the oil spill has killed off marsh vegetation and doubled the rate of wetlands erosion in some locations. It also calls attention to research showing significant tissue damage and reproductive problems with minnow-like killifish in the Gulf. And it points out that major long-term studies of the impact of the BP oil spill on other key species — shrimp, crab and oyster, among others — are far from finished.
In addition to its assertions on the long-term environmental impacts, the rebuttal from the government’s lawyers comes down hardest on BP’s campaign to minimize the recklessness displayed in its operation of the Deepwater Horizon rig and in key decisions made before, during, and after the catastrophe. The filing focuses on key emails between BP managers in the days and hours before the rig explosion on April 20, 2010 — emails that were ignored in BP’s argument that the settlement is fair.
Just as BP attempted to have the public, Congress and others focus only on what happened on the rig or in other offshore offices of its contractors, the BP engineers and executives who drafted these and other documents were the people who actually exercised the direct authority and control over nearly every aspect of what ultimately went wrong with the rig on April 20th. The behavior, words and actions of these BP executives would not be tolerated in a middling sized company manufacturing dry goods for sale in a suburban mall. Yet they were condoned in a corporation engaged in an activity in which no less a witness than Tony Heyward [the former CEO] himself described comparable to exploring outer space.
The government notes that while BP’s reports and court filings have sought to pin the Aug. 20 explosion at the rig on a remarkable series of technical and systemic failures happening at once, its arguments ignore “the systemic management or corporate-driven, ‘profit over safety’ causes that allowed the individual mechanical and technical failures to manifest..” It states that U.S. attorneys intend to show “gross negligence or wilful misconduct” when it brings its own case to court.
The federal rebuttal focuses considerable attention on a failed pressure test on concrete barriers in the rig that took place shortly before the explosion, noting that the problems with the April 20 test should have prompted an immediate response from BP and its managers that might have averted the catastrophe. “That such a simple and yet fundamental and safety-critically test could have been so stunningly, blindingly botched in so many ways, by so many people, demonstrates gross negligence.”
The short filing by the Alabama attorney general’s office focuses on another failure by BP — involving the so-called “top kill” method that failed in stopping the spill that spring — which lawyers argue caused 1 million additional barrels to flow from the crippled rig, further polluting the state’s beaches and wetlands.
The Alabama filing notes:
We also intend to prove that BP represented to the federal government and the public that the flow rate was 5,000 bpf (barrels per day), while having knowledge that the flow rate was significantly higher. At the same time, BP proceeded with the “top kill” method, even though BP knew that a) a top kill risked well integrity and thus further delay or permanent damage b) a top kill would be unsuccessful at 15,000 bpd or greater and c) the flow rate was far greater than 15,000 bpd. We intend to prove that BP’s ordering of the risky top kill, which BP knew was predestined to fail, amounted to willful misconduct which delayed the capping of the well by several weeks — weeks in which an additional 1+million barrels of oil unnecessarily entered the Gulf.
It’s hard to stress the critical importance of these court filings by the U.S. Justice Department and the state of Alabama. They stand as powerful confirmation of some of the issues that led me to start writing this blog in the first place — proof that both the gross misconduct of BP and the ongoing harm that it has caused to the Gulf and to the coastline are much greater than the American public realizes. I believe there will be be significant fallout, as these allegations also stand as proof that BP’s settlement terms are far from adequate. The people of the Gulf deserve much better.
To read the U.S. Justice Department filing in the case, please go to: http://www.stuarthsmith.com/wp-content/uploads/2012/09/7229-2.pdf
To read the Alabama attorney general’s filing, go to: http://www.stuarthsmith.com/wp-content/uploads/2012/09/7223.pdf
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