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Oil Spill Update: Case Against BP

By Alisa Opar

Features Editor, ��Ĵ�ý magazine

Published June 09, 2010

Photo courtesy

As oil continues to gush into the Gulf of Mexico from BP’s blown-out well, the federal government has launched an investigation to find out who’s responsible for the disaster. “If we find evidence of illegal behavior, we will be extremely forceful in our response," Attorney General Eric H. Holder Jr. in New Orleans on June 1 after viewing damage caused by the widening spill. Holder said that he believed there was “sufficient evidence” to warrant a criminal inquiry.

“The case against BP is a slam dunk,” David Uhlmann, former chief of the environmental crimes section of the Justice Department and a law professor at the University of Michigan, today. The government will likely charge the company—and perhaps even some individuals—with violating the Clean Water Act and , and perhaps other laws. “There isn’t any question that [the federal government is] going to bring criminal charges against BP. The questions are not so much about whether they have a strong case, but rather just how serious will the charges be, just how many companies will be involved, and whether individuals will be charged.”

The government will have to feel that there was negligence before it brings charges, he adds, “But I don’t think that’s going to be a hard call to make in this case. “

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Strict liability provisions like those included in the Refuse Act and Migratory Bird Treaty Act mean that BP and Transocean would be liable for any violation, regardless of whether it occurred accidentally or as a result of intentional misconduct. For a Clean Water Act violation, 33 U.S.C. § 1319(c)(1), the government would only have to show negligence, which is a fairly low threshold for criminal liability.

Whether prosecutors pursue a case against a company in this situation would usually depend on how cooperative it was in clean-up efforts and complying with requests for information because there are no real defenses to charges under these provisions. Given the pressure on the Obama administration over its response to the oil spill, however, criminal charges are much more likely than in other cases.

A Washington Post-ABC News conducted June 3-6 found that Americans overwhelmingly consider the BP oil spill in the Gulf of Mexico to be a major environmental disaster, and 64% of those polled think that the federal government should pursue criminal charges against BP and other companies involved in the spill.

On the Today Show yesterday, President Obama slammed BP’s CEO for his comments regarding the spill, such as "" The president also stressed that he’s determined to discover “whose ass to kick.” Watch his interview in the video below.

Finally, a few numbers of interest:

BP says it has already spent in gross direct costs for the response, clean up, and relief wells.

Currently, there’s a $75 million cap on the economic damages a “responsible party” is liable for, on top of discharge removal costs. The , introduced in Congress in May, would increase the cap on to $10 billion.

For a Clean Water Act violation, the maximum fine is $25,000 a day and up to one year in prison for a conviction based on negligence, and $50,000 a day and up to three years in prison for a conviction based on conduct shown to be done “knowingly.”

Exxon Mobil paid a $125 million criminal fine for the Valdez spill in Alaska.

Approximately 15.5 million gallons of an oil-water mix have been recovered.

BP’s latest scheme to capture oil, the “cut and cap” is ; to date, all efforts to plug the leak have failed.