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BP trial should offer a renewed opportunity to deal with the failings of offshore regulations and oversight

The first phase of BP’s civil trial, which concluded in April 2013, was intended to apportion blame between BP and its contractors and determine whether any or all of those companies acted with gross negligence leading up to the rig explosion in April 2010.

The second phase of the three-part BP civil trial, which began last week, is to determine how much oil spilled from the blown-out well, whether BP prepared enough for an accident like the well explosion, and if the company responded correctly once oil began to spill.

There is a lot at stake in this case. For BP, it is the size of the fine that will be levied under the Clean Water Act. For the government, which it trying to secure the maximum penalty for BP, the case will underscore its efficacy in holding corporations accountable for harm.

But equally important is whether the information and evidence brought to light in this trial will be applied to the offshore drilling industry and used by the agencies and decisionmakers responsible for protecting our workers, wildlife and waters from inherent dangerous drilling activity.

The bulk of phase two of the trial – for which the judge has allotted 12 of the 16 days the trial is expected to take – will focus on the question of how much oil spewed into the Gulf after the Deepwater Horizon rig exploded.

The government is arguing that 4.2 million barrels of oil was discharged into the Gulf over 87 days. BP is claiming that the number was closer to 2.45 million barrels.

Clean Water Act fines range from a maximum of $1,100 for every barrel spilled through simple negligence to as much as $4,300 a barrel if a company is found to have been grossly negligent.

If U.S. District Judge Carl Barbier agrees with the government that there was gross negligence and that 4.2 million barrels was spilled, the fines could amount to more than $18 billion.

Examining whether BP prepared enough for this type of accident and whether the company responded properly to the spill will occupy less of the court’s time but should reopen discussion around the adequacy of both offshore drilling safeguards and government oversight of the drilling industry.

Question: Was BP adequately prepared for a blowout?

  • Despite warnings, BP did not invest in deep-water blowout technology.

In the first week of trial, the government argued that the company ignored decades of warnings about the risks of a deep-water blowout and failed to adequately prepare, stating that, “BP knew of the gaps in its ability to control the source of a deepwater blowout.  However, BP had a policy under its Risk Management Plan that risks were could be deemed acceptable because they were too expensive to mitigate.”

Robert Bea, an expert witness for plaintiffs’ attorneys, testified that BP didn’t spend any money before the Deepwater Horizon disaster to develop technology for controlling a deep-water blowout.

However, BP insists the company complied with all government requirements and industry standards for spill preparedness, and neither required the company to have a capping device.

The government must strengthen offshore drilling standards and implement the final critical safety and environmental recommendations from the National Commission on the Deepwater Horizon Oil Spill and Offshore Drilling. 

More than three years after the Macondo well was capped, the Department of Interior has still not issued its final regulations for blowout preventers.

  • BP’s response plan was useless, absurd and government-approved.

At the time of the Macondo blowout, BP’s almost 600-page oil spill response plan dedicated only a single page to “source control,” calling for assembling a team of experts to assess the situation while drilling a relief well to halt the flow of oil. The BP employee tapped to lead the response efforts testified that he did not refer to the document even once during the crisis.

In practice, it took several attempts and 87 days to stop the flow. It seems clear that BP was woefully unprepared to manage the subsea well blowout, but on paper the government-approved response plan was downright absurd.

As reported by Mother Jones, during a 2010 congressional hearing, it came to light that the response plan included references to how to protect walruses and sea lions, which, as Energy and Environment subcommittee Chair U.S. Rep. Ed Markey (D-Mass.) noted, “have not called the Gulf home for 3 million years.” The plan also included the phone number of a sea turtle expert who has been dead for five years.

  • BP’s failed response plan, at the time, was the industry standard.

During cross-examination by a BP lawyer, Bea acknowledged that other offshore operators had virtually identical plans for responding to a spill. Other companies didn’t have capping stacks suitable for deep-water usage, either, Bea said

Indeed, also during the 2010 hearing, representatives exhibited the response plans of Shell, ConocoPhillips, Chevron and ExxonMobil in case of an oil spill in the region. The cover photos of rigs and tankers are identical, just in different colors, and four of the five plans include the references to walruses, sea lions, seals and the same deceased sea turtle expert.  Markey summed up the companies’ response strategies in the hearing: “The only technology you seem to be relying on is the Xerox machine.”

It is a tremendous failure of the industry that adequate response equipment was not readily available and that response plans were little more than exercises on paper. Nonetheless, we should not overlook that fact that the response equipment was not required and that regulators did not challenge but rather routinely rubberstamped the cookie-cutter plans.

Question: Did BP respond properly to the accident?

The government is arguing that BP bumbled efforts to cap the well and refused to listen to the experts brought in to help resolve the crisis, stating, “Time and time again, BP’s outside technical experts recommended one thing, and BP did something else.”

BP claims that it did everything possible to stop the jet of oil in the Gulf of Mexico in 2010.

Judge Barbier is to consider both these positions in setting BP’s fine for the 2010 disaster, but lawmakers and regulators should be considering whether BP should have been directing the response once the magnitude of the crisis was known.

One week after the Deepwater Horizon rig sank to the bottom of the ocean, the Obama administration characterized the unfolding disaster as “a spill of national significance”.

The designation of “spill of national significance” triggers a federal responsibility for managing the spill.  And while more federal resources and coordination were employed as a result of the designation, BP continued to call the shots.

In addition to having the final say on source control options, BP also made the decision to dump at least 1.9 million gallons of a widely banned dispersant into the Gulf of Mexico in its efforts to “dissolve” the oil, despite a government directive to limit the use of controversial dispersant chemicals to control the spill.

BP clearly had competing interests at play in its oil spill response. BP was attempting to hide the amount of oil spewing out of the well, mitigate cost, stop the spill, and control its image in the media. Are these the types of conflicts that should be governing a national disaster response?

As the BP trial continues this week, the focus in the courtroom will be on whether the government or BP correctly estimated the amount of oil that ultimately gushed into the Gulf of Mexico. Resolving this question is no small thing – it means the difference of several billion dollars.

But outside of the courtroom there are still several issues – with significance far beyond the cost to BP – raised by the worst oil spill in U.S. history, and those issues require a national dialogue on not just the necessary regulations and oversight of offshore drilling and the inevitable accidents that come with it, but whether we should continue to pursue this activity at all.

The only true solution to preventing offshore drilling accidents is to reduce our reliance on oil and gas. In the meantime, let us take every step necessary to protect our workers, wildlife and waters from drilling.

Allison Fisher is the Outreach Director for Public Citizen’s Energy Program