Another Chance for BP to “settle” and avoid Criminal Charges?

by Luis R. Miranda
The Real Agenda
February 28, 2012

British Petroleum “has gotten lucky”, again. Not only has it not been held accountable for its share of the blame on the Oil Spill Disaster, but they’ve also managed to delay the start of the trial that was supposed to start February 27th. “Two people close to the case told The Associated Press the decision to postpone was made Sunday during a conference call between parties in the Gulf of Mexico oil spill case and U.S. District Judge Carl Barbier,” reports the Washington Post. As I said in my article BP Oil Spill Litigation May Threaten Solution to Real Problem, judge Carl Barbier’s list of rules issued previous to the scheduled date of the trial was a black cloud over the people of the Gulf, who are urgently looking forward to solving the disaster. But the solution is not a financial settlement, as the main stream media reports. The solution to the current poisoning of the Gulf of Mexico requires that BP pays its dues, but also that the Gulf is properly cleaned from ongoing hydrocarbons spills that spew out of the third oil well, the same that BP did not report during the Congressional investigations.

Judge Barbier seems to have agreed with BP and the “steering committee” that works with the plaintiffs to delay the trial in order to give the settlement another shot. They are “making some progress”, Barbier said during a conference call. The so-called steering committee is assessing lawsuits filed by individuals and victims of the April 20, 2010 explosion of the Deep Water Horizon rig and everything that happened as a consequence of such an event. It suffices to say that the terms of any agreement between BP and the victims that have filed lawsuits will not be made public. Most likely, those who settle will not be able to talk about the negotiations or the amounts they received. How will this settlement help clean the Gulf? It won’t.

Perhaps the best reason for neither the government nor the private plaintiffs to settle with BP is the fact that new evidence released last Friday shows that British Petroleum purposely deceived investigators who were trying to find out the causes and consequences of the massive oil spill. A briefing put out by the Gulf Rescue Alliance (GRA), that was sent to the Attorney Generals of Alabama and Louisiana presents evidence that until now has not been sufficiently analyzed or for that matter publicized about how and why the Deepwater Horizon Disaster and later releases of toxic oil into the Gulf occurred, as well as how the oil spill has not stopped — oil is still coming out from various seabed fractures.

Evidence cited by the report mentions that BP omitted the existence of a third well, the real source of the spill. It also shows how the current conditions of the third well are such that it can’t simply be capped as BP supposedly did, but that we now know it didn’t do. Additionally, the briefing explains how the seafloor is highly fractured, which has opened numerous fissures where the oil and gases continue to spill out from. The government continues to use Corexit, a chemical whose work is to hide the oil spill, not to stop it or to remediate the damage caused by the millions of barrels of oil that are still coming out of the third well.

“The Gulf Rescue Alliance has no interest in publicity for itself, pointing fingers, finding who to blame or anything else; we are interested in catalyzing action on an urgent basis to save the Gulf from long-term, disastrous impacts by getting actual solutions being applied; solutions that have been blocked by the EPA for the past 23 years.  We hold the EPA directly responsible for keeping in place the destructive response protocols used in this disaster aka Corexit.  The Gulf and the life it supports can’t wait 3, 6 or 12 months for a trial to bring a resolution; nor will a real resolution be possible if no admission occurs of the currently uncapped well. Justice and damage dollars will mean nothing if the Gulf is dead,” said a spokesperson for GRA.

The Washinton Post also reports that judge Barbier said that the delay was allowed “for reasons of judicial efficiency and to allow the parties to make further progress in their settlement discussions.” In other words, the judge is favoring a settlement as supposed to a trial that actually holds BP and the other companies accountable for their wrong doings previous and after the oil spill disaster. It is hard to see how justice will be done if a settlement is reached outside of Court. No matter how many millions or billions are at stake, a settlement will only look after BP’s interests, not those of the residents or the Gulf.

In the case of the Gulf of Mexico oil spill disaster a settlement simply is not the solution. But assuming that the trial begins, it does not necessarily mean that justice will be made either. Although the first part of the proceedings is supposed to be about determining the causes of the blowout as well as who is at fault, judge Barbier made it clear that in this part of trial he would not admit independently obtained information that refers to the causes of the Gulf disaster in order to “facilitate the job of the parties” — including Judge Barbier — in finding out what really happened, who is responsible, and that the ruling should be based on the facts. How in the world would judge Barbier find answers to what the causes of the blowout were or who is responsible for it, if he refuses to analyze key information that is more than pertinent to the case? What will he base his ruling on if he does not know this information or does not use it as a tool to determine the causes and the responsible parties? That is why I said this trial was doomed to fail the people of the Gulf.

But the settlement talks do not only include individuals who were affected by the oil spill. BP is also looking for a settlement with the government. Some legal analysts bounced out the idea that BP should settle with the government about the Clean Water Act Penalties and Oil Pollution Act damages, instead of negotiating will private plaintiffs, who most likely will take their money from BP’s disaster trust fund worth $20 billion. As of right now, BP is trying to solve its legal issues and to get away with murder by “legally bribing some Gulf residents as well as government agencies. When I say “get away with murder”, I mean, BP may not have to provide any aid with any efforts to clean the Gulf, if that is ever brought up as a necessity in the settlement or the trial.

According to the Financial Times, the government itself had already proposed a financial settlement to BP, but the company did not accept it. Any financial settlement will earn BP and perhaps the other accused parties, the chance to avoid criminal charges. “The wild card in those negotiations could be the possibility of criminal charges against BP, other companies involved and some of their employees, which are being considered by a separate section of the US Department of Justice from the division working on the civil damages and penalties,” says the Times.

“The government case is very complicated because of the criminal piece of it, which would have to be part of any settlement with BP,” says Carl Tobias of the University of Richmond School of Law.

It is important to point out that many of the hundreds of thousands of individuals who filed lawsuits against BP will not even be considered to receive money from BP’s trust fund, because according to some legal experts they weren’t able to prove how much money they had lost because of the oil spill. They did not have bills or a paper trail to demonstrate any loses and therefore won’t be entitled to any money. From the 116,000 individuals who filed a lawsuit against BP, only about 39,000 will actually be considered to receive payments if a settlement is reached. Most of the affected people, who were fishermen or individuals who made a living of informal commercial activities will be left out. “There is a debate over how many people are legally entitled to sue. Some argue that only those who had filed a claim with the Gulf Coast Claims Facility, the compensation fund backed by $20bn of BP’s money, are eligible,” reports the Financial Times.

If a settlement is not reached, the trial is set to start on March 5th.