BP investigations: a rough guide


US Department of Justice

The criminal investigation into BP represents the most serious – and potentially costly – inquiry. Eric Holder, attorney-general, has said that DoJ attorneys are reviewing possible violations of environmental and wildlife protection laws, which hold parties liable for clean-up costs and injuries to wildlife. Of these statutes, the Clean Water Act could be the most costly.

Under the law, operators in charge of any vessel from which oil is discharged are liable to civil judicial penalties of $1,100 (€840, £700) per barrel or $4,300 per barrel if the company is found guilty of gross negligence or wilful misconduct.

BP officials are also at risk of potential criminal charges if individuals are found criminally liable for the rig explosion, although legal experts suggest this is unlikely.

Congressional inquiries

BP faces a host of congressional inquiries into its conduct in the aftermath of the Deepwater spill, including the House energy and oversight committee and sub-committees.

The inquiries do not pose a direct financial threat to BP. But they do expose the company to considerable political pressure and legislation that could have a long-term impact on its future in the US. For example, the House of Representatives recently passed a proposal that would bar BP from future oil permits based on its previous safety record.

Though the bill is unlikely to become law, it underscores that BP is vulnerable as long as it remains in the public eye. The investigations do not have a definitive end date.

Presidential commission

Barack Obama ordered a presidential commission to investigate the causes of the spill and explore issues including industry practices.

It is similar to those created to investigate the Challenger space shuttle disaster. It has no power to subpoena witnesses, instead relying on evidence gathered in other forums – such as congressional hearings – and on witnesses who agree to appear.

It will provide recommendations on how to prevent future spills in offshore drilling – and how to mitigate the impact of any that do happen. It is due to report to Congress by December 15.

Securities and Exchange Commission

The SEC is understood to be examining trading in BP shares following the spill, to see if there is any evidence suggesting there was illegal trading using non-public information. It is also understood to be looking at whether the company’s report and accounts and other information for shareholders adequately disclosed information on the risks of its deepwater operations ahead of the explosion. The fact that it is looking at both these issues does not mean it will instigate a formal investigation, let alone a prosecution.

BP said last month that the SEC and Department of Justice were “conducting informal inquiries into securities matters arising in relation to the incident”. BP and the SEC both declined to comment on these inquiries.

Chemical Safety Board

The CSB was asked to launch an investigation by the House committee on energy and commerce. It investigates industrial accidents and can only recommend changes. It has no enforcement powers. Don Holmstrom, investigations supervisor, who also led the investigation into BP’s Texas City explosion, will head the inquiry. It plans to focus on events leading up to the explosion on April 20.

Deepwater Horizon joint investigation

Run by the US Coast Guard and the Bureau of Ocean Management, Regulation and Enforcement, the investigation has nine more months to look at the causes of the accident. It has no disciplinary powers but can refer its findings for further inquiry to see if disciplinary or legal action is warranted.

Private litigation

BP is embroiled in more than 300 private lawsuits. It faces allegations that it is responsible for problems ranging from charter boat owners’ lost earnings to sea turtles’ deaths. Other litigants include shareholders who claim they were misled over BP’s safety record and ability to deal with oil leaks.

The Bly report

BP launched its own independent internal investigation into the Deepwater Horizon disaster. Mark Bly, group head of safety and operations at BP, was tasked to lead the report by Tony Hayward, the company’s outgoing chief executive.

The company is due to publish the report in the next few weeks.

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Stuart H. Smith is an attorney based in New Orleans fighting major oil companies and other polluters.
Cooper Law Firm

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