[THS] Criminal Charges Likely From Gulf Oil Spill, Legal Experts Say

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http://www.truthout.org/criminal-charges-likely-from-gulf-oil-spill-legal-experts-say59446

Criminal Charges Likely From Gulf Oil Spill, Legal Experts Say

Wednesday 12 May 2010

by: Marisa Taylor  |  McClatchy Newspapers

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(Image: Jared Rodriguez / t r u t h o u t; Adapted: anjamation, US Coast Guard)

Washington - Federal investigators are likely to file criminal charges against at least
one of the companies involved in the Gulf of Mexico spill, raising the prospects of
significantly higher penalties than a current $75 million cap on civil liability, legal
experts say.

The inquiry by the Homeland Security and Interior Departments into how the spill
occurred is still in its early stages and authorities have not confirmed whether a
criminal investigation has been launched.

But environmental law experts say it's just a matter of time until the Justice
Department steps in - if it hasn't already - to initiate a criminal inquiry and take
punitive action.

"There is no question there'll be an enforcement action," said David M. Uhlmann,
who headed the Justice Department's environmental crimes section for seven years
during the Clinton and Bush administrations. "And, it's very likely that there will be at
least some criminal charges brought."

Such a likelihood has broad legal implications for BP and the two other companies
involved — not the least of which is the amount of money any responsible party could
be required to pay. The White House is asking Congress to lift the current $75 million
cap on liability under the Oil Pollution Act of 1990, but there's no cap on criminal
penalties. In fact, prosecutors in such cases can seek twice the cost of environmental
and economic damages resulting from the spill.

While Attorney General Eric Holder has confirmed that Justice Department lawyers
are helping the agencies involved in the oil spill inquiry with legal questions,
department officials have refused to detail what their role entails.

But Uhlmann and other experts said it's likely prosecutors are already poring over
evidence from the spill because under the Clean Water and Air Acts and other federal
laws aimed at protecting migratory birds, an accidental oil spill of this magnitude
could at least result in misdemeanor negligence charges.

And under the migratory bird regulations, prosecutors have very broad discretion.

"If it happens, then you can charge it," said William Carter, a former federal
prosecutor of 14 years who headed the environmental crimes section for the Los
Angeles U.S. attorney's office. "There's no intent required."

He added that he agreed with Uhlmann, saying, "I would be shocked if there were
no criminal charges filed in this case. There are so many things that went wrong out
there."

In testimony on the Hill this week, all three companies involved in the spill — BP,
Halliburton, and Transocean — denied culpability for the spill and have instead
blamed each other.

BP did not respond to requests for comment.

Halliburton and Transocean declined to answer questions, saying it would be
"inappropriate" to comment on any possible litigation or investigations.

"At the moment, Transocean is concentrating its efforts on assisting BP and federal
and state agencies on the clean-up effort," the company said in a statement.

One of the numerous factors in determining whether to file criminal charges is the
adequacy of civil damages, which would provide an additional reason for prosecutors
to pursue a criminal case in connection with the Gulf spill, experts said.

Prosecutors also look at the history of violations, which could also persuade them to
file charges. BP, for example, has already agreed to pay millions in criminal penalties
for several major incidents, including for a fatal explosion at a Texas refinery in March
2005.

BP and several of its subsidiaries agreed to pay a total of $373 million in fines for the
Texas explosion, leaks of crude oil from pipelines in Alaska, and for fraud for
conspiring to corner the market and manipulate the price of propane carried through
Texas pipelines.

While the government will probably only bring criminal charges if there is some sort
of negligence — "that's not a very high bar," Uhlmann said.

In 1999, the Ninth U.S. Circuit Court of Appeals upheld the misdemeanor conviction
under the Clean Water Act of a supervisor at a rock quarry project that accidentally
ruptured an oil pipeline, causing a spill.

For a felony, prosecutors have to demonstrate companies "knowingly" violated the
regulations.

Tracy Hester, the director of the Environment, Energy and Natural Resources Center
at the University of Houston, said prosecutors would be looking for "any possible
concealment of the risks, a failure to respond to any known risks, and a failure to
report a dangerous situation."

"Knowing is a slippery term," Hester said. "But knowing doesn't necessarily mean that
you knew it was a violation of the law. You just have to be aware that what you were
doing fell into what is regulated."

But Oliver Houck, a professor with Tulane University who specializes in environmental
law, predicted that prosecutors are not going to want to pursue minor charges for
such a catastrophic spill.

Meanwhile, the companies themselves have already started pointing fingers.

In testimony this week, BP pointed to questions about the blowout preventer — and
made it clear that Transocean owned it.

Transocean, however, denied the blowout preventer caused the accident and hinted
that the cementing and casing did not properly control the pressure.

Halliburton, the cementing sub-contractor, pointed to BP as the well owner.

"This has been a series of 'Oh my god' revelations, 'They did what?'' Houck said. "But
those revelations are the grits and grease of standard civil claims."

"To get into criminal land, you would have to prove that they knew that the short
cuts they were taking brought a high probability of serious risk," he said. "I don't
think the government has that yet. That's what grand juries are for."

Houck added that some of the strongest environmental criminal cases have come out
of civil cases, which means that prosecutors may not determine whether any of the
companies have criminal liability for months, if not years.

"The beauty part of civil trials is the competing companies," he said. "As a prosecutor
this is the most delightful scenario: All the defendants proving each others' guilt."