Interview David Uhlmann
Uhlmann is a professor and director of the Environmental Law and Policy Program at the University of Michigan Law School. He served for seven years as chief of the Justice Department's Environmental Crimes Section. This is the edited transcript of an interview conducted on Aug. 3, 2010.
From your perspective at the [Department of Justice], how did the oil industry stack up in terms of environmental performance?
... There were a number of cases that were brought during my tenure involving either criminal conduct at refineries, criminal conduct involving pipelines, the oil industry and the refining business more generally.
Oil and gas refining involves a fair amount of potentially risky behavior, a significant amount of regulation, and the potential for very significant environmental harm and, in some cases, a loss of life. ...
But as you looked out across all the industries that you were charged with investigating, where did the oil industry fit?
I can't say that they were better or worse. It's just that they were a major industry whose conduct had potentially significant environmental impacts, so when there were cases involving the oil and gas industry, they tended to be very large cases, very significant cases. ...
The sad reality of life in the 21st century is that there are significant environmental compliance issues across all industries if the companies involved don't make a sufficient commitment to environmental compliance.
Within the oil industry, how did BP stack up?
Most companies, if they're criminally prosecuted, do a good job of cleaning up their acts and make sure that they're never criminally prosecuted again. That's the whole goal of criminal prosecution. It's to punish wrongdoing and to provide deterrents so that we don't have the same problems repeating themselves.
In the case of BP -- although it was, to be fair, at different companies -- we had a company that had problems at multiple facilities within multiple subsidiaries.
BP was a repeat offender? Any idea why?
Whenever you have a repeat offender, there's a reason. Within corporations, if there are repeat offenders or repeated criminal violations committed by a corporation, it usually means that there isn't a sufficient compliance culture within that company.
It means that the company, for whatever reason, is not making the necessary commitment that it needs to make to make sure that it's following the rules that everybody else has to play by.
So within BP, that is certainly a concern. This is a company that had problems in the 1990s. This is a company that my former office prosecuted twice beginning in my tenure. And now this is a company that has brought us the worst environmental disaster in U.S. history. That's not an accident.
... Should we have seen this coming?
This is a terrible tragedy, and I think, to be fair, nobody involved could ever have contemplated that this type of tragedy would occur. But there are a lot of questions that I think are fairly raised about the lack of foresight here.
There's a fair question raised about how we can drill for oil more than a mile beneath the surface of the ocean and miles more beneath the floor of the ocean, how we can develop that technology but not develop the technology that's needed to shut off a well if a problem like this occurs. That's breathtaking, and that's tremendously irresponsible. And it shouldn't be the case that companies are drilling in an environment like the Gulf of Mexico without the ability to handle accidents like this or problems like this if they occur.
How do you explain that a company with a fairly egregious record of health and safety violations over two decades is allowed to participate in the most challenging kind of drilling in a sensitive environment?
The answer is that our laws don't today create any barriers, any limits on their ability to continue operating.
We have a set of laws -- they're called our suspension and debarment laws -- governing government contracting. Those laws allow the government -- or, in fact, require the government -- to stop doing business with companies that commit felony violations, which is what BP did.
On more than one occasion?
On more than one occasion. But the prohibition only lasts until they've corrected the conditions giving rise to the violations. That's the language of the statute.
So as soon as they've cleaned up whatever mess they've made, as soon as they've stopped violating the law the way they did at whatever facility brought them a criminal conviction, then they're off the hook. Then they're free to contract with the government. ...
There's just not a punitive aspect to it. You and I might think the law should be that if you commit a felony violation in the environmental laws, you don't get to have government contracts for a year or for two years or for three years, you no longer can apply for leases or permits to drill for a year or for two years or for three years. But that's not what the law is. ...
Once you've fixed your problem, you're free to do business, so that's why BP probably didn't spend more than a few days unable to do contracting with the government, unable to do drilling on the gulf, unable to obtain whatever licenses and permits it needed. ...
The fact that you're a repeat offender isn't taken into account. It has no consequence?
I suppose it has consequences in the sense that [the Environmental Protection Agency] or whatever agency is overseeing your suspension from government contracting is going to probably be a little tougher on you. They're going to be a little more skeptical about your claims that you've corrected the conditions giving rise to your violations. ...
It would be reasonable, it would seem, to prevent companies that had bad safety records, bad environmental records, from undertaking the most difficult drilling assignments?
It would certainly be one of the factors you would want the government to be able to take into account. You would want the licensing and the permitting process to at least be able to consider what is the history of the company involved. That would seem reasonable.
And you're saying that's not taken into consideration at all in the permitting process?
The law about government contracting doesn't allow that to be considered. You're either eligible or you're not eligible. ...
Whatever we think of BP, however terrible its problems may be, they have good attorneys. They have a lot of resources. They're able to take the necessary steps to correct the condition that gives rise to a violation and make sure that they don't lose their right to get government contracting.
And that's exactly what they did after the Texas City, [Texas,] case, after the Prudhoe Bay, [Alaska,] case. They made sure they weren't suspended, weren't barred from government contracting for a significant period of time. And they weren't. ...
What does it take to get BP's attention if they're a repeat offender? What do you think, as a prosecutor, we're missing here?
I think we've gotten their attention now.
At a price?
At a huge price. This is the worst environmental disaster in U.S. history. It will fundamentally change this company. The spill by itself, and the liabilities the company faces as a result of this spill, will have to change the company.
And I'm certain that my former colleagues at the Justice Department are going to demand changes in how BP does business as part of whatever plea agreement they reach on the criminal side and as part of any consent decrees they enter to resolve civil claims against BP. ...
When you took over the job as chief of Environmental Crimes Section at the DOJ, was BP in any way on your radar?
BP had been convicted of environmental crime once before at that point. They had been involved in a case on the North Slope of Alaska that led to criminal charges, so they were on our radar screen in the sense that they were a company that we had prosecuted criminally. To be fair, so were a lot of other companies. ...
So they were no standout?
No. And in fact, the case against them from the 1990s was a criminal case --serious charges, but it wasn't by any stretch of the imagination the worst case. ...
When did BP get your attention? ... When did they come back on your radar screen as a potential problem?
They came back on our radar screen in a big way in 2005, when the explosion at the Texas City refinery killed more than a dozen people.
And nothing before then?
No, there were no criminal charges brought against BP before that time.
Were you aware of the EPA citing them for numerous violations at their Carson, [Calif.,] refinery?
We would not necessarily have been aware of that. ... That's something that's being handled as a sort of ongoing compliance issue within the agency, so we wouldn't have known about that unless EPA came to us and said: "You know what? This facility has had problem after problem after problem." ...
Nobody was raising any red flags about BP at that point prior to the Texas City blast?
So then this accident happens in Texas City. Describe how you take up the case.
... When 15 people die, that gets the attention of prosecutors. That gets the attention of government regulators, and it immediately became a case that we needed to look at, because here's a major refinery with an explosion with 15 people dead.
It came at a time when we were doing a Worker Endangerment Initiative [WEI], trying to look at the relationship between environmental violations and worker safety violations. Facilities that don't do much to protect the health and safety of their workers generally don't care a whole lot more about protecting the environment.
So we were targeting cases in 2005 that raised both environmental issues and worker safety issues, and the Texas City case was right smack-dab in the middle of that effort, because there were significant compliance issues on the environmental side, and there obviously had been significant worker safety issues as a result.
As you dig into it, I imagine you're pulling back the curtain on a company. Were you surprised by what you found?
I can't say we were surprised. Prosecutors are perhaps a cynical bunch.
You were excited by what you found?
Yeah. I mean, the evidence was strong.
This was the first case that was brought under provisions of the Clean Air Act that focused on the duty that a company -- in this case a company operating a refinery -- has to provide a safe workplace.
So it was a great case for us to highlight the fact that there are companies in America, and no doubt in the rest of the world, that don't make the necessary commitment to environmental compliance, that don't make the necessary commitment to worker safety. ...
... I can only talk to you about what's in the public record, and what's in the public record is that BP, through one of its subsidiaries, pleaded guilty. They paid a $50 million criminal fine, which was at the time the third largest fine ever paid for environmental crimes.
That's a very large penalty, and the penalty also included significant probationary terms that need to develop a stronger compliance program to prevent this type of tragedy from happening again. But there weren't individuals charged.
What that tells me is that my former colleagues concluded that this was a case where it was the corporate culture that was at fault. It was the company, if you will, that did not have the necessary commitment to environmental compliance and worker safety, and not the responsibility of any one individual within the company.
Part of the problem in a company like BP is there needs to be people at very high levels in the company who do have that responsibility and who make sure that everybody else within the company is playing by the rules and meeting the commitment that all companies should have to, protecting our environment and to ensuring the safety of our workers. …
You're saying that this was a case of a corporate culture gone bad, a safety culture that had failed?
... But individuals? Are they not responsible?
To criminally prosecute an individual in the United States there have to be two things. They have to know about what's going on, and they have to either participate in the action directly -- to carry out the action, whatever the crime is -- or where responsible corporate officials are involved, they have to at least have the authority to prevent the violation and fail to take the necessary steps to prevent it. ...
Since nobody was individually prosecuted in the Texas City case, the conclusion I reach based on that -- again, the case was concluded after I left the department -- is that there wasn't anybody, or at least wasn't anybody high enough up in the company, that had both the necessary knowledge and the necessary personal involvement in the misconduct to warrant criminal charges.
BP's head of refineries worldwide, John Manzoni, was somebody who had visited the plant, somebody who had been apprised of the condition of the plant, who knew that the plant was using antiquated equipment. Why wouldn't that get him in trouble?
... The Justice Department has to base its decisions about what cases to bring based on the law and the facts. It's not enough, certainly, that you visited a company, visited a facility, or that you know generally that there have been compliance problems in the past. The knowledge requirement is greater than that. ...
Knowing what was actually going on at that refinery that led to that explosion, that's the kind of very specific, focused knowledge that we require in our criminal justice system, and my personal view is that's probably right and fair and the way the law should work.
I'm sure you're aware that BP had commissioned safety audits of Texas City and had commissioned a report -- the Telos Report -- in which workers talked about how they feared going to work there; that it was something akin to a ticking time bomb. ... Is that not close to being enough to get a criminal prosecution of an individual for failure to address the problems that workers were bringing to his attention?
I can't really say. I wasn't the person who staffed the case. ...
If you're going to charge a senior official within a company with committing felony violations of the law, as a prosecutor you have an obligation to only do that if you have sufficient evidence to convince a jury, a unanimous jury of 12 people, that the person knew what was going on and either participated in it themselves or, by virtue of their supervisory responsibility, had the ability to prevent it and failed to act.
It's clear to me that the Justice Department didn't feel like it had that kind of compelling evidence. ...
They were cutting costs. They were aware that the equipment was corroded, antiquated, and that workers were complaining. And the plant manager, Don Parus, went to London with pictures of workers who had been injured or killed in previous accidents that were due to the fact that the refinery was in bad condition. I'm just trying to help our audience understand, how far does this have to go before somebody is held responsible, if ever?
Let's be clear. In criminal cases, the Justice Department always tries to identify individuals who can be prosecuted. Prosecuting the company in a case like Texas City is not all that difficult. ...
But there's no question that the prosecutors working on that case and the investigators working with them would have done everything possible to try and build a case against responsible individuals, because when you're trying to change corporate behavior, the best way you can do that is by holding individuals responsible. ...
Let me ask you about the fine. The fine of $50 million, you point out, is a large fine historically; that it's the third largest fine ever slapped against a corporation for an environmental crime. Is that correct?
It's pocket change to the company, right?
Fifty million dollars isn't pocket change to anybody.
If you're making a billion dollars in profits, it's not very much money.
Put it this way: If they spent half that on compliance at that facility, that would have made a huge difference and may have prevented this type of tragedy from occurring. So I would never disparage a $50 million fine.
Could the government have sought a larger fine? Sure. If I had still been there, might I have argued that the fine should be a little larger? I might have. ...
They were caught in a propane price-fixing scandal and paid over $300 million in fines. Nobody died. Why the disparity?
I'm not familiar with all the details of the propane price-fixing case, but I would say this: [In a] price-fixing case, there probably is a dollar value you can place quite readily on the value, if you will, of the wrongdoing. My guess is that the evidence must have shown that there was $50 million, $100 million, maybe even $150 million of ill-gotten gain in that case. ...
The unfortunate reality is that environmental violations historically have not been treated with the same degree of seriousness by the criminal justice system. They don't carry such large fines because there's not a dollar value we can place on harm to the environment, and it's not even very easy in a case like Texas City to put a dollar value on a lost life. So we see historically smaller fines for environmental violations than we do for other forms of economic crime. ...
As far as putting a value on human life, BP's own internal documents showed that they priced a human life at around $10 million in terms of doing risk assessments. If that was the case, then they should have paid, by BP's own estimate, a lot more than $50 million.
There's a whole bunch of different ways we could look at the Texas City case. We could say, as you have, that the fine wasn't large enough given the size of the company, and certainly ability to pay is a factor in setting a fine. We could try and do some kind of analysis, although I doubt either of us are particularly comfortable with the idea of putting a price tag on a human life. ...
What I can say to you, though, is [$50 million] obviously wasn't enough to change the corporate culture in this company, and that's a problem.
So if deterrence is a reason for fining companies, then that $50 million was a failure?
It certainly wasn't enough to deter the company as a whole.
Part of the challenge here, of course, is in the Texas City case, we're talking about [BP Products North America], and on the gulf we're talking about British Petroleum Exploration. We have all these different subsidiaries, and to be fair, they all have different management structures; they all have different compliance programs.
What I'm saying to you is that I think there was a broader compliance problem within BP as a broader organization. So across BP entities I think there was a serious problem. And the Texas City prosecution -- even though I think it was a successful prosecution on its own terms -- obviously didn't do enough to change the corporate culture within BP, or we wouldn't be here talking about a tragedy like the gulf oil spill.
... The [U.S. Chemical Safety and Hazard Investigation Board] did a report [PDF], and out of that they recommended to BP that they internally report not just on what went wrong at Texas City or what caused it or what safety culture problems they had, but to look companywide. And [James] Baker, working for BP, concluded that there was a companywide problem.
There clearly was and is a problem within BP. And again, I don't think we'd be sitting here three months after 11 people lost their lives on a rig out in the Gulf of Mexico -- looking hopefully now backward at the worst environmental disaster in U.S. history -- if there weren't problems within this company. ...
You're saying the purpose of a fine is to deter. And I'm just wondering what it would take, do you think, to deter a company the size of BP, with the profits that they had, from acting the way they have.
Far be it for me as a law professor to object to an academic question, but the law sets limits, and the law says that the maximum penalty that can be imposed in a criminal case is twice the loss or gain associated with the offense. ... That puts a significant cap on what the government can obtain. ...
I said I thought environmental violations get short shrift compared to other kinds of economic crime. The reason environmental violations get short shrift is concepts like "loss" and "gain" don't have much meaning when we're talking about destruction of the ecosystem that provides the habitat for all of us.
Or human lives?
Or human lives, and so we get numbers in the environmental context that are necessarily limited. ...
What dollar amount provides deterrence? ... You want to come up with a penalty that hurts enough that the company is going to want to do everything it can to make sure it doesn't end up in that soup again. ...
... I guess I'm trying to arrive at what you believe now would have been a deterring fine.
... I think you're identifying one of the challenges for any kind of enforcement system. ... When we're dealing with very large companies like BP, a company that's value is over $100 billion, it's very hard to come up with a number that by itself is going to have that effect.
You need to actually do more than just come up with a big-dollar amount. You need to come up with ways to convince the people running the company that they need to enact changes. And obviously one of the ways you do that is you prosecute individuals.
And you put them in jail?
And you put them in jail.
Well, what happened?
They didn't do that because they weren't able to do that.
... In the McWane [Cast Iron Pipe Co.] case, or in the [John Morrell & Co.] case, what was it that caused those companies' executives to have to go do jail time that wasn't there in the BP case?
In the McWane cases, the people who were the plant managers at the McWane facilities were the people directly involved in committing the crimes. So they were personally involved in committing the crimes themselves.
In the Morrell case, which I prosecuted in the 1990s when I was a trial attorney, the senior vice president of the company would sign monthly reports each month that said that the company was meeting all of its obligations under its Clean Water Act permit when the company was 30 and 40 times over permit limits.
And as he signed those reports each month, he would say, "Who's going to jail this month?" So he obviously knew exactly what he was doing, knew that he was signing reports that were false. He had the kind of personal involvement and the kind of personal knowledge that we require in our criminal justice system. ...
Without naming names, were you considering prosecuting, criminally, individuals, executives of BP [in the Alaska North Slope case]?
In every case where criminal prosecution is considered, the government considers not only whether the corporation should be charged, as it was in the Alaska case, but whether individuals should be charged. ...
At that point you've got a violation in the '90s; you've got the Texas City disaster, 15 dead; you've got numerous other problems cropping up, and then a major spill in Alaska. Did you consider debarment of BP at that point?
The way suspension and debarment works, [it's] not the Justice Department that gets to consider it. ... That's EPA's call.
Has it changed?
No, this is the law. The law in suspension and debarment is that if a company has committed a felony violation of the Clean Water Act, it's mandatory. If they commit felony violations of other environmental laws, it may not be mandatory, but the agency has the discretion to consider debarment.
EPA is quite aggressive about the exercise of its debarment authorities, and particularly in the Pacific Northwest, they were quite aggressive during the 1990s and during my tenure as chief of the Environment Crimes Section.
What companies like BP do when they're facing a criminal investigation, when they're evaluating whether or not they're going to plead guilty, they negotiate with the prosecutors -- my old office -- and they start negotiating with the department officials. They do everything they need to do to meet the requirement ... to show that they've corrected the condition giving rise to the violation. Although those weren't my office's responsibility, I'm certain that there were extensive discussions between BP and EPA about debarment, and EPA said, "Jump!," and BP said, "How high?" ...
Do you know how close BP came to being debarred?
Large corporations in America rarely spend any time suspended or barred from government contracting. They make sure that they do whatever they need to do to convince the regulatory agencies that they've cleaned up their acts so that they don't lose what are very lucrative government contracts. ...
That seems to me like a problem with the debarment process.
The debarment law is inadequate. The debarment law in the United States should have a punitive element. One of the punishments for committing a crime should be that you lose the privilege, and I think it's a privilege, of contracting with the government. These are very lucrative contracts, right? ...
BP before the gulf oil spill was one of the largest government contractors for the Defense Department. They made millions every year, if not more than that, on their government contracting work.
In my opinion, a company that is convicted of a crime -- and I expect that BP will be convicted of crimes for the gulf oil spill -- should lose the privilege of contracting with the government for some period of time. But that is not the law in the United States today.
You don't expect that they will be debarred?
Under current law, if they're convicted of violations of the Clean Water Act, which I expect they will be, they will be debarred.
But that's not the relevant question. The relevant question is, how long are they barred from government contracting? And I don't expect that to be for very long, not because EPA isn't tough on companies that commit violations, not because they aren't very aggressive about how they exercise their authority under the suspension and debarment laws, but simply because those laws are inadequate.
Those laws say that as soon as the company corrects the condition giving rise to the violation, the suspension or debarment must end. Well, the condition giving rise to the violations on the gulf is going to end when the oil stops spilling in the Gulf of Mexico.
What about when there is no more damage from the oil spill?
That's not the condition giving rise to the violation.
So as soon as they turn off the oil, no matter how much they've spilled in the gulf, they can apply for a government contract?
Technically that's right. As I said, EPA is quite aggressive, and I'm sure EPA is going to say: "It's not just stopping this spill, but it's also changing the policies, changing the procedures that allowed this spill to take place."
But BP, if it has any sense -- and I'm sure there's plenty of people there who have lots of good sense -- is already hard at work changing the company. They've already fired Tony Hayward. They've already hired an American [Bob Dudley] for the first time to head the company. They're already embarking on an effort to change not only their corporate image in the United States but also to change their corporate culture and provide meaningful change.
By the time we get to a criminal prosecution sometime in 2011, I suspect that they will have done everything that EPA could ask of them to correct the conditions giving rise to the violations. ...
The fact that BP had large contracts with the U.S. military, do you think that had any influence over their not being debarred?
I don't think the fact that they had other contracts with the military would have a whole lot of influence over EPA. ...
The problem here is with the law. This law is inadequate. This law should be changed by Congress.
If this Congress is serious about making sure that companies who have committed significant violations of the law, felony violations of the law, do not commit violations again in the future, it should add a punitive element to the suspension and debarment laws. ... If you lost those contracts at least for a year, that would be a much better law than the one we have today. ...
Is anybody talking about that in Washington? Is anybody talking about that in Congress?
They're talking about it, but they're doing it in a typical Washington way. We have a terrible tragedy on the gulf, so they're talking about -- at least in the House of Representatives -- they're talking about and have actually included in their energy bill ... language saying that drilling companies that have significant environmental and safety violations will lose the ability to obtain permits in the future. ...
You said to CNN, "There's been a significant history of violations at BP, but the government continues to contract with BP, and they don't withhold permits because they're such an important part of the economy both in the region and in the nation and, frankly, in the world." Is that the reason? …
... Earlier, when we were talking about suspension and debarment, I said that I'm sure one of the things EPA is thinking about when they're trying to decide how to deal with suspension and debarment of a company like BP is the fact that BP has a lot of contracts with the government, and it would be disruptive to the smooth operation of the government -- in this case the military -- if those contracts had to be voided or somehow curtailed.
And that's true for the economy as a whole. I don't think the goal of the government's current efforts with regard to BP should be putting BP out of business. The goal should be making sure that something like this never happens again and that BP meets its obligations under U.S. law. …
What is the upshot of the gulf spill going to be for BP?
I think BP is going to face the largest fine ever imposed for criminal conduct of any kind in the United States. So not just for environmental crime -- this will be the largest criminal fine ever imposed in the United States.
Will anybody go to jail?
I don't know. I think BP is going to pay a criminal fine in the billions of dollars -- possibly $10 billion -- which would be nearly 10 times larger than the largest fine ever imposed in the United States. ...
I think that fine will be imposed alongside civil penalties that may be as large. BP is also going to be paying for Natural Resource Damage claims. They're going to be paying for economic losses that are suffered by the communities along the gulf. So we're talking about a company paying tens of billions of dollars in fines and in damage claims.
These are numbers that will hurt. These are the kind of numbers ... that will change this company. But whether individuals will go to jail, that is a much harder question. It all depends upon whether there were people at a high enough level in the company who were involved in the decisions that led to this tragedy. ...
... What [has BP] done right?
They have spent $4 billion on cleanup. They haven't hesitated for a second to meet their obligations. ... They've set aside $20 billion to compensate the victims of this tragedy, which is an unprecedented sum of money. They didn't have to do it. I think it was the right thing to do. ...
They've started the process of changing how their company does business, and they started at the top. Maybe to some degree it's kind of like the baseball team that's not doing well. You can't fire the team, so you fire the manager. There may be a degree to which Tony Hayward was a scapegoat. On the other hand, he certainly wasn't projecting the kind of image you would want if you were BP's board during this crisis. ... He said a lot of things and did a lot of things that made people think that he didn't really understand how big a problem this was.
The company recognized that, and they removed him. They put somebody in charge who, at least with [the] limited track record we have with him, ... seems to be the right kind of person, somebody who can provide real leadership at BP, who can help BP enact the changes it needs.
When the spill news came to you, you'd had 10, 20 years of experience at DOJ, and you had been involved in prosecuting BP in the past. You knew something about the company beyond its PR campaign. ... What did you think?
I thought they were going to be criminally prosecuted.
But what did you think about the fact that they were, yet again, in the news, creating a problem?
I wasn't shocked. Anybody who's watched the events of this spring and summer unfold has to have been surprised and deeply saddened by just how terrible the tragedy has become. And no one, myself included, realized at the beginning that this was going to become the worst environmental disaster in U.S. history.
There's nothing about BP's past that suggests to me that they would have intentionally wreaked this kind of havoc on the environment and on the communities living alongside the gulf. So in that respect, I'm surprised at just how terrible this has been.
But the fact that it was BP that was involved, the fact that it was this company, that, unfortunately, is not a surprise. This is a company that has a history of environmental violations. This is a company that has been prosecuted multiple times. Hopefully this is the last time they will be prosecuted. But they can and should be prosecuted for what they've done in the gulf.
Calling them a serial environmental criminal, is that fair?
I think that's a little over the top. ... It's a rhetorical flourish of sorts.
We need to recognize, as a society and as a culture, that we are part of this problem. BP is out on the gulf drilling for oil in deep water in very risky ways because of our insatiable thirst for more oil.
What I'd like this to be is not only the change that BP needs but the change that we all need. This should be a wakeup call for us that we need to end our addiction to oil, and we need to start doing a better job of caring for the environment that sustains all of us. ...
What's the difference between a misdemeanor conviction in [the Prudhoe Bay] case and a felony conviction? And in that sense, what does it mean to have a felony conviction of a company?
... The issue is, for a felony prosecution under the Clean Water Act -- which is what we'll be talking about on the gulf and what we were talking about in Prudhoe Bay -- you have to have a knowing discharge, ... which basically means you intended to discharge oil.
You can't even begin to make that argument in the gulf or in Prudhoe Bay. They weren't operating the pipeline so that it would burst. They weren't drilling this well or actually trying to shut down the well so it would explode.
So what you're left trying to do -- and it's not impossible, but it's extremely difficult, and it's an untested legal theory -- is argue that they took so many shortcuts, cut so many corners, deviated from industry standards so much, that they knew in the case of the gulf that a blowout could occur. ... It's very hard to connect those dots, and [it's] not clear whether, even if you could bring that case and convince a jury, that it would withstand appeal.
So the difference between a felony and a misdemeanor under the Clean Water Act is the difference between knowing discharges and negligent discharges. And that's a very wide gulf, very big difference in terms of the proof that's required. ...
In terms of the fine you can get, it's still twice the loss or gain associated with the offense either way. The only difference: Clearly, a felony is a more serious sanction. ...
Hypothetically, in terms of what you described, the heavier burden of proof to show that cutting corners was intentional and sufficient enough to lead to a possible felony case, what would that picture have to look like?
That's a great question. ... There is no case I can point you to where court has said, "That's knowing conduct." ...
Did BP in the case of the gulf oil spill -- and for that matter the other companies involved down there -- did they realize that what they were doing was such a departure from industry norms that they effectively knew that something like what has happened there might result?
That seems like a pretty far reach, doesn't it? That's a pretty hard connection to make. ... As a prosecutor, in terms of proving it, you'd want to have a memo saying: "You know, if we do X, we could have a blowout. But we'll save $100 million, so let's go for it and take our chances." I'd take that case, but that's the kind of proof I think I'd need to do that. ...
You've called this, and lots of other people have, the worst environmental disaster in American history. Time magazine this week suggests possibly that the environmental damage is overblown and quotes a whole bunch of people with various ways of evaluating that. How should we, in your view, going forward decide whether or not this is a substantial environmental disaster or the worst in history?
... There is some good news on the gulf. The oil has obviously broken up a lot more quickly than people thought it would. The cleanup will accelerate. But this is an unprecedented amount of oil that was discharged into the gulf.
We know that it's the worst oil spill in U.S. history, at least if worst is measured by the amount of oil. ... And I think in terms of the amount of pollution and the sensitivity of the ecosystem and the number of communities affected, it is the worst.
I'd concede that "worst" is one of those terms that there may be degrees to which you're comparing apples to oranges. We put pollution into the air every day from power plants across the United States that are shooting up our carbon dioxide levels in the atmosphere, contributing to global warming. That's an environmental disaster, too.
But this is up there, and I think in terms of the volume, in terms of the ecosystem affected, in terms of the people affected, and in terms of the wildlife affected, this is certainly one of the worst.
And from an environmental crimes perspective, is there anything to guide us going forward? ... How do we decide whether this lasts as an environmental disaster, or whether we decide in fact it was less of an environmental disaster than we thought?
... First you have to identify what was the state of the ecosystem before this happened. And let's be clear: the Gulf of Mexico, not exactly pristine. We've been plundering, ... we've been devastating the gulf for a long time. It is a remarkable ecosystem that we've badly damaged already.
But what the government will have to do is figure out what was its condition before April 2010. How badly has it been hurt by this spill? And that may take a few years to know for sure.
Then, what is necessary to restore it to the way it was pre-April 2010? That whole part of the case, it's called the Natural Resource Damage Assessment. ... We do Natural Resource Damage claims, probably in the billions of dollars, that will be brought by the federal government and the state governments. That will probably give us our best understanding of the harm to the ecosystem.
Frankly, we're wreaking havoc on the earth, and this is just another example of it. And I don't know that we'll ever fully know just how bad the harm is. We'll certainly not know anytime soon. It's going to take a lot of years.