This article was reported in partnership with The Investigative Fund at The Nation Institute, with support from The Puffin Foundation.
On March 2, the first agreement in the historic trial against BP and all of the companies responsible for the largest maritime oil spill in world history was announced. The settlement proposal between BP and some 120,000 individuals and businesses includes key provisions long sought by those most economically and physically devastated by the gulf oil disaster. It also entails a number of critical unknowns, with vital details under negotiation for up to forty-five days.
What this settlement does not address, and what may yet go to trial at any time in New Orleans, are all of the charges brought by state governments and the federal government against the companies, including penalties for harm and restoration to wildlife and the environment, Clean Water Act penalties for the 4.9 million barrels of oil and 500,000 tons of gaseous hydrocarbons BP released into the ocean, the determinations of fault and negligence, and potential punitive damages. Judge Carl Barbier is also set to consider potential criminal charges at a later trial.
If the people and places of the Gulf Coast are to achieve full justice and restoration, and if future disasters are to be prevented, the public must remain vigilant in demanding that the unfolding legal process is transparent, fair and rigorous, holding BP and all responsible parties fully to account for their failures and crimes.
What is behind the pressure for a settlement?
There are four factors driving the parties away from a trial and toward a settlement: the “Valdez curse,” Big Oil’s fears, the Obama administration and BP’s bottom line.
After Exxon’s Valdez oil tanker ran aground in 1989, spilling 11 million gallons of crude oil into Prince William Sound, Alaska, the legal suit launched by plaintiffs wound its way through the courts over the course of nineteen years before the Supreme Court reached its decision, during which time more than 3,000 of the claimants died. Exxon whittled a $5 billion judgment down to just $507.5 million, leaving most plaintiffs with little economic support. All plaintiffs facing BP are wary of such an outcome.
For its part, Big Oil has no interest in a trial and has been pushing BP to settle. The 72 million pages of documents and hundreds of witnesses gathered for the trial are likely to reveal damning evidence harmful not only to BP, Halliburton, and Transocean but to every major oil company working in offshore waters today. In my most recent book, Black Tide: the Devastating Impact of the Gulf Oil Spill (Wiley, 2011), I reveal that the kinds of catastrophic errors that led to the explosions on the Deepwater Horizon drilling rig, killed eleven men, capsized the rig and created a three-month-long uncontrollable oil and gas spill are not only endemic throughout the entire industry, they also remain largely unaddressed. It is expected that even more damning evidence not previously made public would come out at trial. A settlement deal, however, would likely seek to require that all such evidence be kept from the public.
Gulf Coast organizations, including Alabama’s Mobile Baykeeper, call for a moratorium on all offshore drilling until the entire industry can prove that its operations are safe. Mobile Baykeeper and the gulf Restoration Network, among others, also call for the establishment of a Citizens Advisory Council to oversee the oil industry’s continued gulf activities.