Seeking justice in the BP oil spill


People in Louisiana and the rest of the Gulf Coast have much at stake in the lawsuit the U.S. Justice Department filed last week against BP and some of its partners at the ill-fated Macondo well – and not just because the case may likely settle how much the companies owe to repair the direct effects of the spill on our environment.

A much broader issue is whether BP and the other firms will be held accountable for the full extent of the spill and made to pay appropriate fines that can help pay for the long-term restoration of Louisiana’s coast. That ought to be a national priority, and the Obama administration should endorse proposals to use most of the spill’s fines for that purpose.

The federal lawsuit seeks to hold BP and other companies liable without limitation under the Oil Pollution Act of 1990 for the spill’s cleanup costs and for the resulting environmental and economic damage.

The government is also suing under the Clean Water Act, which allows for civil fines of up to $1,000 per barrel of oil spilled or $4,300 per barrel if the companies are found guilty of “gross negligence or willful misconduct.” That means between $5 billion and $21 billion in potential civil penalties are at play in this important litigation.

BP said it will respond to the suit “in a timely manner and will continue to cooperate with all government investigations and inquiries.” The company also noted its pledge of $20 billion for a compensation fund.

But already BP is trying to limit its liability by challenging the government’s estimate of the spill – and that’s not surprising. BP sought to minimize the spill from the beginning, first saying that only 1,000 to 5,000 barrels were spilling daily. Government scientists a few weeks later estimated that 12,000 to 19,000 barrels were actually spewing into the Gulf. A Flow Rate Technical Group of government and independent scientists eventually tripled the worst-case estimate, and a consensus set the official estimate at 4.9 million barrels over the spill’s 86 days.

BP is now saying the true figure is 20 percent to 50 percent lower, arguing that the flow rate increased over time as the riser pipe and the inside of the blowout preventer were eroded. The flow rate task force, however, concluded that the amounts of oil released decreased over time as the well lost pressure.

BP’s new argument contradicts evidence from the government’s technical group and from other independent scientists. Let’s also not forget that, throughout the spill, BP insisted the company couldn’t accurately estimate the flow rate – using that argument to try to low-ball the amount of oil escaping.

BP’s motivation in disputing the spill’s estimate is obvious. If the Justice Department calculated the spill’s fines based on BP’s new estimate, the maximum ordinary fine would be lowered by $2.5 billion. If BP and its contractors are found grossly negligent, the fine would be reduced by $10 billion.

For BP, this is primarily an issue of dollars and cents – not of science.

But how that is settled will be crucial for our region, which is hoping that a portion of the fines will help pay for coastal restoration. The urgency of reversing decades of coastal erosion and restoring our wetlands can’t be overstated – the future of the region and much of the Gulf Coast hangs in the balance.

Louisiana’s wetlands produce a third of the nation’s seafood. Our coast also supplies much of the nation’s domestic energy and is home to the country’s largest port system. Wetlands also are vital to reduce storm surge and are metro New Orleans’ first line of defense against hurricanes.

During the spill, President Obama promised that the federal government would “do whatever it takes for as long as it takes” to address the crisis but also to help restore the Gulf’s environment and economy. That must include saving Louisiana’s coast, a massive and expensive task. Louisiana will finally begin receiving a significant share of oil and gas revenues to pay for coastal restoration, but not until 2017. But our state has less than a decade to reverse coastal loss before it’s too late, and we need the money to fix the coast now.

That’s why state officials from both parties have urged that most of the fines paid by BP and other firms be used for long-term coastal restoration. So has Navy Secretary Ray Mabus, whom President Obama appointed to craft a recovery strategy for our region after the spill. In making the case that “a significant amount” of the fines should be used to restore Louisiana and other affected areas, Secretary Mabus said, “the Gulf was the place where the spill happened, the Gulf took the risk, and the Gulf took the damage.”

He’s right.

That sets the government’s claims apart. Yet attorneys representing private plaintiffs suing BP have asked U.S. District Court Judge Carl Barbier in New Orleans to consolidate all lawsuits into a joint case. That could eventually force governments to share winnings obtained on behalf of the public with the private plaintiff attorneys – and Judge Barbier should reject the lawyers’ request.

In filing the suit last week, Attorney General Eric Holder referred to it as part of the government’s “work to ensure that the American taxpayers are not forced to bear the costs of restoring the Gulf area – and its economy.”

That should be the nation’s top interest in this lawsuit – and that’s also why this case will be crucial for the future of our region.

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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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