Making BP’s Punishment Fit Its Crime: Judge Gives Spill Victims Green Light to Seek Punitive Damages


The brilliant Renaissance man Leonardo da Vinci once said: “He who does not punish evil commands it to be done.” At no time in the last, say, 400 years have those words of warning been more relevant than they are today when considering BP’s legal liability surrounding last year’s devastating oil spill. The British oil giant’s reckless pursuit of profits over people, the environment and pretty much everything else under the sun is reflected in an appalling safety record filled with hundreds of “egregious, willful” violations. As da Vinci points out, we are in part to blame for enabling BP to become a repeat offender of the most abject sort.

Through our permissive regulatory policies and laughable enforcement efforts, we have allowed BP to become a serial perpetrator of evil. As da Vinci advises, we must punish BP for the torrent of environmental damage, economic ruin and death it willingly – and repeatedly – leaves in its wake. And who better to inflict the punishment than the “small people” (to use the words of BP Chairman Carl-Henric Svanberg) who have had their lives devastated by the indiscretion of an enormously wealthy and powerful multinational corporation.

No doubt da Vinci would approve of the recent decision of U.S. District Judge Carl Barbier, who is overseeing oil spill litigation in New Orleans, to allow victims to pursue punitive damages against BP under maritime law. According to an Aug. 27 Bloomberg article:

Businesses and individuals suing BP Plc (BP/) and other companies involved in the 2010 Gulf of Mexico oil spill won a federal judge’s approval to seek punitive damages in pursuing claims of economic and environmental losses.

Black’s Law Dictionary defines punitive damages as:

Damages imposed to punish the defendant, to teach the defendant a lesson, or to deter others from engaging in the same kind of conduct. They are awarded as an additional amount, over and above what is awarded for compensatory damages.

The words “to teach the defendant a lesson” are the ones we should focus on. Clearly, BP has not learned from its past mistakes and shortcomings – a bad situation that culminated in last year’s disaster. Here’s a scratch-the-surface look at BP’s atrocious safety record, courtesy of ABC News (June 2010):

Occupational Safety and Health Administration (OSHA) statistics show BP posted 760 “egregious, willful” safety violations – while Sunoco and Conoco-Phillips each had eight, Citgo had two and Exxon had one comparable citation.

In two separate disasters prior to the Deepwater Horizon, 30 BP workers were killed and hundreds have been seriously injured.

In the last three years, according to the Center for Public Integrity, BP refineries in Ohio and Texas accounted for 97 percent of the “egregious, willful” violations handed out by OSHA.

In 2007, a BP pipeline spewed 200,000 gallons of crude into the pristine Alaskan wilderness. The oil giant was fined $16 million.

So it appears BP is a very slow learner – and monstrously “safety challenged.”

Punitives are a means to make BP’s punishment fit its crime. According to the online encyclopedia, Wikipedia:

In ethics and law, “Let the punishment fit the crime” is the principle that the severity of penalty for a misdeed or wrongdoing should be reasonable and proportionate to the severity of the infraction.

Hitting BP in its pocket book is certainly fitting. BP’s catastrophic spill brought financial ruin to tens of thousands of Gulf residents. It sapped the ability of hard-working men and women up and down the Gulf Coast to provide for their families. It destroyed their livelihoods. It broke their confidence and self-esteem. I see the despair in people’s eyes to this day. I see it in friends, neighbors and clients. They are struggling to get back on their feet while BP celebrates more than $5 billion in profits for the second quarter of 2011.

BP is back to making money – lots of it. BP has gotten its life back (to use the infamous words of former BP CEO Tony Hayward), but tragically, many Gulf residents have had their way of life irreparably damaged. They may never get their lives back.

Much to my disappointment, the Obama Administration has coddled BP just as it did the criminal Wall Street bankers who never got indicted for essentially bankrupting the world financial system. As it becomes more and more likely that the criminal in BP will also get  off scot-free, punitives may represent our last line of defense.

We must heed da Vinci’s counsel. If we ever hope to see an end to BP’s evil, we must punish the oil giant for its sins. There are many.

Read the full Bloomberg report on punitive damages here:

© Smith Stag, LLC 2011 – All Rights Reserved

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