The Clean Water Act turns 40 years old Thursday. It’s a little soon for it to be losing its teeth.
Yet in the face of the biggest oil disaster to ever fall under its purview, the government has been uncharacteristically slow in bringing criminal charges. Saturday, just two days after the anniversary of the law taking effect, marks 2½ years since the Deepwater Horizon disaster unleashed the biggest offshore oil disaster in the nation’s history.
In all that time, nothing has been filed against the companies involved – BP, Transocean and Halliburton.
“The Justice Department should have been in the position to bring criminal charges by the end of last year,” said David Uhlmann, a professor of environmental law at the University of Michigan and the former head of the Justice Department’s Environmental Crimes Section. “They’ve lost the sense of urgency that criminal cases demand.”
The irony is that the Justice Department has prosecuted more criminal cases under the act than any other environmental statute, Uhlmann said. It filed charges against what’s now Exxon Mobil just 11 months after the Exxon Valdez disaster, and they were resolved within two years – less time than has passed since the Deepwater Horizon accident.
While the Deepwater Horizon case is more complicated – and the spill was 20 times larger than the Exxon Valdez one – the Clean Water Act requires only proof that the companies acted with negligence, which it defines as failure to use reasonable care under the circumstances.
BP’s own internal report on the disaster, released in September 2010, clearly acknowledges its responsibility for the accident while also pointing the finger at Transocean and Halliburton.
Every major study on the accident done since then has come to similar conclusions.
In other words, charges under the Clean Water Act ought to be a layup.
In a brief filed in late August in the big civil case pending in New Orleans, the Justice Department offered a glimpse of its strategy, accusing the companies of gross negligence, which if proved would elevate the level of fines. Yet it hasn’t backed that filing up by bringing an actual case.
Offered to settle
Meanwhile, Transocean, in a bond offering document last month, acknowledged offering to settle criminal claims for $1.5 billion, but the talks apparently led nowhere. Transocean said it hasn’t had any discussions with the government since February.
A Justice Department spokeswoman declined to comment.
So far, the only criminal charges to emerge involve the hapless case of Kurt Mix, a low-level BP engineer who allegedly deleted a couple of text messages related to the cleanup effort, but who had no involvement in the disaster itself.
The assumption, following Mix’s indictment in April, was that more cases would follow, but the ensuing six months of silence has been deafening.
“I don’t think the company should get a pass while low-level employees like Kurt Mix bear the brunt of criminal prosecution,” Uhlmann said.
In a recent speech at a law conference in Washington, Uhlmann blamed the delay in criminal charges on the Justice Department’s decision, about a year after the accident, to move the case from the environmental crimes section to the criminal division, which was supposed to streamline decision-making. But the move meant “that the largest environmental crimes office in the world – which led the Exxon prosecution and had three decades of experience prosecuting oil spill cases – would no longer have a leadership role in the biggest environmental disaster in U.S. history,” Uhlmann said in his speech.
At this point, charges aren’t likely until after the election, but the longer the case drags on, the greater the chance that the feds won’t bring any charges at all.
That’s unconscionable given the scale of the disaster and the need to hold the companies responsible. Since 1972, the Clean Water Act has proven an effective tool in projecting federal waters from polluters.
Forty years later, it still has teeth. It’s long past time for the government to use them in the Deepwater Horizon case.
Loren Steffy, email@example.com, is the Chronicle’s business columnist. His commentary appears Sundays, Wednesdays and Fridays. Follow him online at blog.chron.com/lorensteffy, www.facebook.com/LorenSteffypage and twitter.com/lsteffy.