After Partial Settlement, Oil Spill Case on a Slow Boil

By Robert Verchick
The BP Oil Spill case settled! Well, part of it. The smaller part. But, still, we must count this a victory for U.S. District Judge Carl Barbier, whose reported 72 million pages of assigned reading will inevitably be shaved down. (Does this man have an iPad?)

On Friday evening the court announced that BP had reached a settlement with the steering committee that represents thousands of private plaintiffs in the case. Judge Barbier postponed the trial indefinitely while the remaining parties, including the federal government, regroup. According to news reports, the settlement would cover claims for economic loss and medical harm. BP estimated that the settlement, which has no firm cap, might total $7.8 billion; the actual number would depend on how many plaintiffs accept the deal and how much they’re ultimately paid. Plaintiffs displeased with the offer could opt out and stay in the litigation. And all private claims against Transocean and other defendant companies remain.

On balance, the settlement appears to be a good thing. But this plate is just the appetizer. The main course—a pepper pot of federal civil claims and criminal charges—has yet to come. And that’s a dish that could really bust a gut.

Before I get to the federal claims, here’s why I like the settlement. The private claims—brought by shrimpers, restaurant owners, injured responders, the families of fallen rig operators and more—were incredibly diverse in factual elements and dogged by the uncertain standard that controls large punitive awards. That not only made their claims hard to value, but insured that any generous verdict would be sent into the deep-space of federal appeals, delaying for years the compensation that many families and small businesses need now.

For those, like me, who hope the oil industry will be driven to reduce catastrophic risk offshore, the more powerful lever has always been in the grip of government lawyers. As I explained in my last post, the current litigation also includes federal claims seeking civil fines under the Clean Water Act. If Judge Barbier finds that the spill resulted from gross negligence, the maximum fine for the release could total $21.5 billion ($4,300 assessed for each of 5 million barrels the government estimates was spilled). In addition, U.S. Attorney General Eric Holder suggested last week that “within months” his office could announce plans to prosecute. (These actions would not be a part of the current litigation.) Provisions under the Clean Water Act allow for criminal penalties up to twice the total amount of the economic loss resulting from the accident. No one yet knows the extent of economic loss (which would include loss to private claimants, natural resource damages claimed by states and federal agencies, and more), but it doesn’t take much imagination to conceive of criminal penalties in the $30-50 billion range. (Take $6 billion in compensation fund pay-outs; add $8 billion for the settlement; add another $10 billion for estimated resource damage; double.) Did I mention fines and jail time for individual employees?

To be sure, I am talking about the high end of federal fines and penalties, but even the possibility of such liability must leave BP executives staring at the clouds. Could BP settle with the government? Perhaps, but to contain all liability, the company would almost certainly seek to settle the civil and criminal actions together. That makes Eric Holder the head chef. And for now he’s got these cases on a slow but steady boil.

Robert Verchick, Gauthier-St. Martin Chair in Environmental Law, Loyola University, New Orleans.

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