In a conference call this morning, Audubon, the Environmental Defense Fund and the National Wildlife Federation urged reporters to make sure BP is held accountable for the country's worst recorded environmental disaster.
BP and its teams of lawyers go to court in New Orleans Monday, where billions in civil penalities could be assessed if a deal is not reached beforehand. This is the first phase of a trial that will determine whether the company is guilty of "gross negligence" under the Clean Water Act, among other infractions. In Sept., phase two will determine who knew what and when on flow rate, and what penalties might result from that.
As readers of this column know, people of the Gulf have suffered myriad health problems including respiratory distress, lung polyps, liver damage and mysterious rashes. One man committed suicide after working on the Vessels of Opportunity boat, ostensibly after helping BP clean up its mess. Meanwhile, the oil giant has hired actors to tell the nation to just "come on down" because the water and the seafood are fine.
Today, a group of prominent environmentalists sought to cut through that nonsense.
In stern and clear language, John Kostyack, VP of Wildlife Conservation for NWF, Brian Moore, Legislative Director of the National Audubon Society and the EDF's Land, Water and Wildlife policy director, Courtney Taylor, stressed that while BP has tried to slither out of its responsibilities to date, come Monday Judge Barbier's court can't allow that.
Kostyack reminded that the Deepwater Horizon accident unleashed "170 million gallons of oil, plus large amounts of methane and dispersants" into the Gulf of Mexico, and that it's cost and will cost damage to the natural resources that people and wildlife depend upon, for many years to come.
He said that with complex litigation such as this, it's always a strong possibility that a settlement will be reached in advance of trial. "One of the real likely scenarios is that a settlement will be produced."
He stressed that "we believe a full-throated debate over the settlement amount needs to happen before a deal is completed, and the judge will be asked to approve and review any settlement."
According to him, Moore and Taylor, BP's liability is "very substantial ...and we're encouraging reporters to investigate what the total liability is, and whether any settlements put forward are fair in light of that liability."
There are two areas of civil liability, Kostyack said.
Firstly, restoration must be addressed, and post-Exxon Valdez disaster this is calculated according to the Oil Spill Pollution Act of 1990. It's also referred to as the Natural Resource Damage Provisions Act ("NERDA"), Kostyack said. This essentially says BP must pay to bring the Gulf ecosystem back to the "baseline that existed at the time of the blowout."
Estimates are difficult to assess both because damages are still being determined, and because environmental activists such as he aren't privy to all the government's information. That being said, one can calculate based on Exxon Valdez-type penalties, which was $144 per gallon in 2012 dollars.
Kostyack said BP's natural resource damage liability, according to this math, "would be in the $25 billion range."
The second area of liability he cited is civil and criminal penalties, assessed against BP for a host of acts such as the Marine Mammal Protection Act, Endangered Species Act and Clean Water Act. The civil provisions, which are not yet resolved, he reminded would be very high if gross negligence was found. "We think the case for that is pretty clear, as does the Department of Justice."
Under the civil provisions of the Clean Water Act, this second penalty would add up to $18 billion because gross negligence or recklessness means BP is accountable for $4,300 per barrel rather than $1,100 per barrel for just "negligence."
The fines are not just for restoration but designed to deter a recurrence of this disaster, he then stressed. "Together they are in the $43 billion range," Kostyack said, adding that he would also like to avoid trial and see Gulf residents affected get "those dollars flowing."
Moore of the Audubon Society called the spill "a living disaster" and pointed out that it's been over 1,000 days since it hit. "The Gulf Coast is still reeling from damage caused and waiting for BP to be accountable for damage caused to the ecosystem."
To see justice and accountability, it's time to remind BP to follow the mantra we find in stores: "You broke it, you bought it."
When it was time to open up for questions, I asked what they thought of BP's downplaying the flow rate in a recent press release.
Kostyack took the question, saying that BP has "sowed a lot of confusion" about flow rate since the time of the blowout when they were "understating drastically the amount of oil that was going into the Gulf."
"The issue that's come up recently is for the oil that was captured by the top hat...before the blowout was capped, [was whether it would] be considered to be a discharge" under the Clean Water Act, and the judge found that it would not because it never technically entered the waters of the United States.
"So BP is, I think, trying to crow about that victory but really overstating the meaning," Kostyack said.
I pointed out that that was only one part of the issue, that BP is still questioning what the scientific estimates are. Back in 2011, I said, reporters at the Univ. of Ga. oil spill symposium I spoke at struggled to understand the disconnect between BP's flow rate and what had been published in NPR.
And to that Kostyack said, "Yeah, they (BP) have very little credibility on flow rate issues."
To listen to today's conference call with the aforementioned environmental activists, please click here for audio.
To see a video of the Univ. of Ga. oil spill symposium panel in which I participated in Jan. 2011, please click here.
Bold marks/hyperlinks are those of the Examiner's.
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