While Thursday’s $4 billion plea deal closes the door on criminal charges against BP in the deadly 2010 blowout and oil spill, it may boost the possibility that civil fines could top $20 billion for violations of the Clean Water Act alone.
Legal experts say that manslaughter charges to which the company will plead guilty suggest that the Justice Department believes it has sufficient evidence to make the case for gross negligence, a standard that could raise the stakes considerably in the civil case.
“It requires a high threshold of conduct to even implicate criminal homicide charges — and this is manslaughter, which is killing without the intent to kill, but is the result of criminal negligence or misconduct,” said Blaine LeCesne, a torts law professor at Loyola University who has followed the case.
“The standard for determining criminal negligence in the context of a manslaughter charge is similar to the standard of gross negligence in civil cases.”
Under the federal Clean Water Act, a finding of gross negligence would nearly quadruple the maximum fine per barrel spilled, from $1,100 to $4,300. The government has estimated almost 5 million barrels gushed out before BP’s Macondo well was capped nearly three months after it blew out, so a gross negligence finding could mean fines of nearly $22 billion.
The Justice Department has made it clear that it plans to push for a gross negligence finding in a trial — scheduled for February unless the parties reach a settlement first.
“We intend to prove that BP was grossly negligent in causing the oil spill,” U.S. Attorney General Eric Holder said in announcing the criminal settlement. “In that lawsuit, we are seeking civil penalties and a judgment that BP and others are liable for removal costs and natural resource damages – exposure that could amount to billions of dollars.”
The British oil company, however, said Thursday that it still plans to fight gross negligence charges, and does not view the criminal settlement as an admission of gross negligence.
“BP believes that today’s agreement is consistent with its legal position that it was not grossly negligent,” BP said in a written statement. “All the pleas related to the accident itself are based on no more than negligent conduct.”
David Uhlmann, a University of Michigan law professor and former federal prosecutor who is following the case, said the criminal admission won’t necessarily translate into a finding of civil gross negligence.
“Pleading guilty to corporate manslaughter does not bind BP on gross negligence claims in the civil case,” Uhlmann said. “The government can argue that BP has admitted negligence but that is different than admitting gross negligence. If the civil case goes to trial, it could go either way on the gross negligence question.”
Brent Coon, a Houston-based attorney who represents thousands of plaintiffs claiming damages from the spill and also represented claimants against BP after the 2005 explosion at its Texas City refinery killed 15 workers, said that BP’s acceptance of the criminal settlement will give the government and individual plaintiffs further leverage in ongoing litigation.
“You have criminal admissions and findings of wrongdoing,” Coon said. “There will be a public acknowledgement, which can be used directly against the company in a proceeding.”
A BP subsidiary pleaded guilty to a felony in the Texas City disaster. Coon said that he used BP statements in that plea deal to force a much stronger private settlement.
“That is an admission that you did it recklessly or intentionally,” Coon said. “There is no way they can argue their way around that anymore. I think it cements their fate better than they cemented that well.”
Other legal experts following the case see less impact on individual civil cases.
“I don’t think that anything that happened will have an impact on the private plaintiff suits,” said Dane Ciolino, a criminal law professor at Loyola University. “This is a whole different arena with a whole different set of parties.”
A New Orleans federal judge is considering whether to approve a proposed class action settlement between BP and thousands of Gulf Coast residents with economic damage claims relating to the spill. But many of those claimants have asked to opt out of the settlement, possibly to pursue individual lawsuits.