The off shore oil rig Deepwater Horizon burns in the Gulf of Mexico, 21 April 2010. Photo: Jon T. Fritz / AP

By Antonia Juhasz
12 March 2015

(Rolling Stone) – On January 27th, as the U.S. Justice Department expounded upon the catastrophic harms of offshore oil drilling in the trial against BP for the 2010 Gulf of Mexico oil spill, President Obama reneged on a 2008 campaign pledge by proposing to open up a vast stretch of the Atlantic Coast to offshore oil drilling for the first time.

Doing so would be tragic. Recent judgments in the civil trial against BP, which has entered its third and final phase in a New Orleans court, will not only result in a significantly reduced fine for BP, but may also mean that no meaningful regulatory changes are implemented to reduce the likelihood of another similar disaster.

Press attention has largely focused on U.S. District Court Judge Carl Barbier's January 15th finding that nearly one million fewer barrels of oil were released into the Gulf than scientists working for the federal government had concluded. Even more significant, however, was Barbier's concurrent finding that BP was not grossly negligent in its planning or preparation for a deepwater blowout or oil spill – dramatically lowering the stakes in how BP will be punished for its inability to stop or deal with the largest offshore drilling oil spill in history.

In September, Barbier had previously found BP grossly negligent for causing the April 20th, 2010 blowout of the Macondo oil well, the sinking of the Deepwater Horizon oilrig, and the initiation of the oil spill. This enables him to fine BP as much as $4,300 per barrel of oil spilled under the U.S. Clean Water Act, though he is not required to do so. The latest rulings now help guide his determination of exactly how much that fine will be.

They are, however, misguided. They mean that even though Barbier found BP liable for causing the blowout by making decisions "primarily driven by a desire to save time and money" which were "dangerous" and "motivated by profit," the company will not be liable for punitive damages and will be fined far less than the $18 billion originally sought by the government – at least one expert has predicted the fine could be as low as $3.5 billion. But it could be even less. In a statement, BP says that it is continuing to review the Court's decision and "believes that considering all the statutory penalty factors together weighs in favor of a penalty at the lower end of the statutory range" – which is a mere $140,000. The ruling also suggests that critical safety improvements are now far less likely to occur.

1. BP Knew

BP knew that a blowout of its Macondo well was not only possible, but probable.

The U.S. Minerals Management Service (MMS) – the federal agency that formerly oversaw offshore oil operations – warned in 1999, "As the industry advances into deep water exploration, the risks of blowout increase." It was correct: The number of deepwater blowouts in the Gulf of Mexico nearly tripled from 1999 to 2010.

BP certified that it was capable of meeting federal regulations requiring that it control a blowout and any subsequent release of oil as quickly and thoroughly as possible and that it conduct all operations in a way that ensures the safety and protection of personnel, equipment, natural resources and the environment.

In its February 2009 Initial Exploration Plan for the Macondo well submitted to MMS, BP named the "worst-case-scenario" as a blown-out well and certified that it could handle a blowout with a release of 162,000 barrels of oil per day – approximately three times the average daily output of the actual 2010 oil spill.

2. BP Lied

But expert findings, including those presented to the Court by the Aligned Party plaintiffs and expert witness Dr. Robert Bea, a 60-year-oil-industry-veteran and head of the Deepwater Horizon Study Group, conclude that BP failed to plan or prepare for a deepwater blowout or oil spill. Instead, the investigations of the National Oil Spill Commission make clear that the company learned on the fly, applying shallow water methods (meant for incidents approximately 400 feet below the ocean floor) to a deepwater blowout (an additional 4,600 feet below), with predictable failures.

"BP was grossly negligent and reckless by not having proper source control planning," says Mary Whittle, a former trial attorney with the U.S. Department of Justice Environment and Natural Resources Division, and now staff attorney at Earthjustice, an environmental nonprofit organization. "It was entirely foreseeable that you would have this kind of subsea blowout and BP didn't take the proper preparations to prevent it or fix it when it happened."

3. BP Wasn't Prepared for a Blowout

BP's only blowout "plan" was reliance on the Blowout Preventer (BOP) – a device with an approximate 50 percent success rate. Moreover, as Judge Barbier concluded, BP had allowed the BOP to run out of batteries, leaving it incapable of shutting-in the well. With the failure of the BOP, BP was out of tricks.

As the Deepwater Horizon Study Group found, "The failure of the BOP, although foreseen and foreseeable … was ostensibly never contemplated by BP – there were no contingency plans to address the developing situation as there were no spill contingency plans to deal with the scope of the disaster." [more]

10 Reasons Why BP Got Off and Offshore Oil Drilling Just Got More Dangerous



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