After the spill is gone: the Gulf of Mexico, environmental crime, and the criminal law.

• Author: Uhlmann, David M.

The Gulf oil spill was the worst environmental disaster in U.S. history, and will be the most significant criminal case ever prosecuted under U.S. environmental laws. The Justice Department is likely to prosecute BP, Transocean, and Halliburton for criminal violations of the Clean Water Act and the Migratory Bird Treaty Act, which will result in the largest fines ever imposed in the United States for any form of corporate crime. The Justice Department also may decide to pursue charges for manslaughter, false statements, and obstruction of justice. The prosecution will shape public perceptions about environmental crime, for reasons that are understandable given the notoriety of the spill and the penalties at stake. In some respects, the Gulf oil spill is similar to other environmental crimes, most notably because it involves large corporations that committed serious violations because they put profits before environmental compliance and worker safety. Yet the spill's most distinctive qualities make it an anomalous environmental crime: the conduct was not as egregious, the harm was far worse, and the penalties bear no relation to norms for environmental crime.

The Justice Department should bring criminal charges based on the Gulf oil spill, because a criminal prosecution will deter future spills better than civil penalties alone and will express societal condemnation of the negligence that caused the spill in ways that civil enforcement cannot. But criminal prosecution of the Gulf oil spill may raise questions about the role of criminal enforcement under the environmental laws, including whether ordinary negligence should result in criminal liability as well as what the proper normative relationship should be between culpable conduct and environmental harm. Nor can criminal prosecution, without more, prevent future spills; for that to occur, we must demand greater attention to safety and more rigorously enforce our drilling laws.

TABLE OF CONTENTS INTRODUCTION I. A "NIGHTMARE WELL": AN OVERVIEW OF THE WORST ACCIDENTAL OFFSHORE OIL SPILL IN HISTORY II. THE LEGAL AND FACTUAL BASES FOR CRIMINAL PROSECUTION OF THE GULF OIL SPILL III. PARADIGMS LOST: THE GULF OIL SPILL AND ENVIRONMENTAL CRIMINAL ENFORCEMENT NORMS IV. RECONCILING THE GULF OIL SPILL CASE WITH THE ROLE OF ENVIRONMENTAL CRIMINAL ENFORCEMENT AND THE PURPOSES OF THE CRIMINAL LAW A. Deterrence and the Role of Societal Condemnation B. What Makes Environmental Violations Criminal and the Problem of Clean Water Act Negligence Cases. C. Environmental Harm and Opportunistic Prosecution CONCLUSION INTRODUCTION

On April 20, 2010, an explosion rocked the Deepwater Horizon oil rig, killing eleven workers and triggering the worst environmental disaster in U.S. history. For nearly three months, oil gushed uncontrollably into the Gulf of Mexico. By the time the well was capped in July 2010, the government estimates that 4.9 million barrels of oil--more than 200 million gallons--had spewed from the well,' coating migratory birds, destroying pristine marshes, sullying beaches, and inflicting incalculable damage to the ecosystem of the Gulf.

Although much of the oil dispersed quickly in the warm waters of the Gulf, reports vary widely about the long-term ecological effects of the spill. (2) One scientific journal reported a vast twenty-two-mile plume of oil on the floor of the Gulf. (3) Another report concluded that microbes had consumed whatever oil had not been siphoned from the well, had not been burned or skimmed at the surface, or had not chemically dispersed from the waters of the Gulf. (4) The National Oceanic and Atmospheric Administration ("NOAA") established a blue-ribbon scientific panel in September 2010 to assess the impact of the oil spill, (5) a precursor to what is likely to be the largest natural resource damage claim ever sought under the environmental laws. (6) Whatever the fate of the visible oil, however, we may not know the extent of the environmental harm for years, since never before has so much oil spilled from an offshore well.

The economic hardship visited on coastal communities also may not be known for some time. NOAA banned fishing in approximately 36 percent of federal waters in the Gulf (nearly 87,000 square miles) at the height of the spill] Although the ban was lifted and fisheries began to reopen by late summer 2010, the effect of the spill on spawning grounds and reproductive capacities is uncertain. (8) For many consumers, doubts remain about the effect of the oil on fish and shellfish, despite government claims that the fisheries are safe." Similar uncertainty shrouds the future of tourism along the Gulf coast: beaches had reopened by late summer, and oil was no longer washing up on the shores, but it is not known when vacationers will return--or whether they will return in prespill numbers. (10) Adding insult to injury, at least in the eyes of Gulf coast residents who work on offshore drilling platforms, the spill has raised questions about the efficacy of future drilling on the Gulf, which are likely to persist even though the government has lifted its moratorium on the issuance of new deepwater drilling permits. (11) New regulations have been imposed, and increased liability limits may follow in the wake of the Gulf spill, (12) which could slow the pace of future drilling and limit the number of companies involved--and, in the process, shed drilling jobs. (13)

Whatever the long-term ecological and economic impacts, the Gulf oil spill has been traumatic for a region still recovering from Hurricane Katrina. Once again, the region has experienced ecological devastation and economic dislocation. The federal government once more was ill-prepared in its disaster planning and emergency response. (14) In at least one significant respect, however, the Gulf oil spill is different: giant corporations, not forces of nature, visited this misery on the Gulf region. While there may have been a human dimension to both tragedies, (15) the heartache of the region and the outrage of the nation are focused on BP and the other companies involved in the spill, whose perceived willingness to put profits before safety wreaked such havoc. Hundreds of tort cases have been filed in response to the spill, (16) and in December 2010, the Justice Department brought a civil suit against BP and eight other companies alleging Clean Water Act violations and seeking civil penalties, cleanup costs, and damages."

Yet civil lawsuits based on the Gulf oil spill are just the beginning: the Justice Department will also bring criminal charges against BE Transocean, and, in all likelihood, Halliburton. (18) The charges will include criminal violations of the Clean Water Act (19) and the Migratory Bird Treaty Act, (20) two of the environmental crimes charged in the Exxon Valdez case. (21) The charges are also likely to include manslaughter in violation of 18 U.S.C. [section] 1112 or under a seldom-used law known as the Seaman's Manslaughter Statute (22) to address the worker deaths. The Clean Water Act violations and manslaughter charges would require the government to show at least negligence; a violation of the Migratory Bird Treaty Act is a strict liability offense that was committed as soon as oil from the spill coated migratory birds. The Justice Department also could bring charges under the Marine Mammal Protection Act, (23) the Endangered Species Act, (24) and the Outer Continental Shelf Lands Act (25) to highlight the oil spill's effect on aquatic life and any violations of drilling regulations, although each of these acts require proof that the defendants acted knowingly (and, in some cases, willfully). If there is evidence that corporate officials lied to the government about conditions at the well or about the amount of oil spewing into the Gulf, the Justice Department could also charge false statements and obstruction of justice. (26)

Once charging decisions are made, the Justice Department is likely to negotiate plea agreements that will be entered prior to indictment or shortly thereafter. BP faces a criminal penalty that will dwarf the $150 million fine in the Exxon Valdez tragedy, which is currently the largest penalty ever imposed for environmental crime. (27) With damage estimates from the Gulf oil spill ranging from twenty billion dollars to fifty billion dollars, (28) BP could receive a multi-billion-dollar criminal fine, which would be the largest fine imposed in the United States for any corporate crime. (29) Transocean and Halliburton may incur criminal penalties in the hundreds of millions of dollars, and possibly even one billion dollars or more.

For many, the Gulf oil spill will become the paradigmatic case of environmental crime in the United States--and not just because it will produce record criminal fines. Intense media focus brought the spill into living rooms across America for nearly three months. The struggles of communities along the Gulf coast when so many Americans were reeling from a recession made BP a target of public anger and resentment, which only increased with reports about the billions of dollars that BP earns every year from its drilling activities, (30) and when BP's then-Chief Executive Officer Tony Hayward said "'I'd like my life back'" (31) in the weeks after the spill. In the court of public opinion, BP already stands convicted, (32) and the eventual criminal prosecution of the Gulf oil spill will frame public perceptions about what constitutes environmental crime.

The Gulf oil spill is similar to other environmental crimes to the extent that it involves corporations that did not place sufficient emphasis on environmental protection and worker safety. In addition, investigators could develop evidence of deliberate violations or misleading conduct, which is typical in environmental criminal cases. Absent such evidence, however, the Gulf oil spill will be more anomalous than paradigmatic environmental crime...