Ex-prosecutor says companies should be charged with crimes for spill

A former Justice Department official says BP, Transocean and Halliburton should face criminal charges for the 2010 Gulf of Mexico oil spill.

In a Washington  speech to the Environmental Law Institute and the American Law Institute, David Uhlmann,  a law professor at the University of Michigan and former head of the  Justice Department’s environmental crimes unit , said that there is ample evidence and precedent for the federal government to bring criminal charges against the three companies, based on the Clean Water Act and the Migratory Bird Treaty Act.

The April 2010 blowout of BP’s Macondo well in the deep-water Gulf spilled millions of gallons of crude into the water and led to an explosion that destroyed Transocean’s Deepwater Horizon drilling rig and killed 11 workers. Halliburton was the cement contractor on the Macondo project

Uhlmann noted that the lack of criminal charges may stem from a decision to move the case to the department’s criminal division from its environmental crimes section. Uhlmann said the criminal division never has pursued an oil spill case or other environmental crime.

“It is not surprising that criminal division prosecutors would focus on traditional criminal charges like false statements, obstruction of justice, and securities fraud, which the criminal division prosecutes regularly,” Uhlmann said. “The focus of any criminal prosecution of the Gulf oil spill, however, should be on the spill itself and the tragic loss of life that occurred on the Deepwater Horizon. The negligence of BP, Transocean and Halliburton caused 11 people to die, incalculable damage to sensitive ecosystems, and billions of dollars in economic losses to communities along the Gulf of Mexico.”

The three companies have denied criminal wrongdoing.

The Justice Department used the Clean Water Act and the Migratory Bird Treaty Act in its successful criminal prosecution of  Exxon after the Exxon Valdez oil tanker spilled crude into Alaska’s Prince William Sound two decades ago, Uhlmann said.

“The Gulf oil spill involves more complex factual issues than the Exxon Valdez spill, but there is nothing complicated or difficult about the Clean Water Act and MBTA charges,” Uhlmann said. “The Clean Water Act charges require only proof of negligence, which is defined as the failure to use reasonable care under the circumstances.”

Investigations of the disaster by a presidential commission, the Coast Guard and Interior Department, the Chemical Safety Board, and BP itself, support the conclusion that BP, Transocean and Halliburton acted negligently and contributed to the Macondo accident, Uhlmann said.

While the companies didn’t conspire to create conditions that led to the accident, Uhlmann said, their misplaced priorities and actions  rise to a level of negligence that has supported criminal charges in past oil spill cases.

“BP and Transocean put profits before safety; neither company had a management culture that made environmental protection and worker safety a priority,” Uhlmann said. “BP took risks in drilling the well; Transocean carried out BP’s questionable directives and had an inoperable blowout preventer; and then there is Halliburton, which knowingly used faulty cement to seal the Macondo well.”

If the Justice Department decides to pursue criminal charges against any of the three companies, they could be held liable for maximum criminal penalties in the tens of billions of dollars, Uhlmann said.

“Even if the actual fines are well short of the maximum penalty, multibillion dollar criminal fines would be the largest ever imposed for a criminal case in the United States and would send a message that civil penalties alone cannot,” Uhlmann said. “By leading with pollution crimes and manslaughter charges, the Justice Department would send a message that it is unacceptable for companies to put the environment and human life at risk.”

Although the spill gave rise to a mountain of continuing civil litigation and governments are conducting criminal investigations, only one person has been charged so far with a crime.

An indictment alleges that in the aftermath of the spill, a former BP drilling engineer deleted text messages about the rate at which oil was flowing. He’s charged with obstruction of justice.