Experts: Legal issues driving BP's oil spill stance

McClatchy NewspapersMay 25, 2010 

WASHINGTON — Under pressure to stop the oil spill that's gushing into the Gulf of Mexico, BP is struggling to play conflicting roles: projecting an image of a responsible company while deflecting legal blame for the disaster.

That tension, which is reflected most recently in BP's decision to continue using a chemical dispersant that the Environmental Protection Agency calls toxic, has fueled a growing perception that the company is more focused on protecting its own interests than the public's.

Scientists and legal experts said that BP's decision to keep using Corexit, a chemical dispersant that the EPA says may be toxic to marine life, helps the company appear to be fighting the slick. However, it also may hide how much oil is being spilled, which could help BP in court.

"They want to be seen to be doing something," said Rick Steiner, a veteran marine conservation consultant who's based in Alaska.

"Secondly, they clearly want to limit the amount of oil coming to shore; that's what people see. And thirdly, if they can limit the amount of oil in evidence, they can limit the public outrage and likely pay less financial damages down the road."

For better or for worse, the company's legal and PR strategies are likely to be shaped by Exxon's; that company fought civil lawsuits for two decades after a catastrophic 1989 spill off the coast of Alaska and was rewarded with a Supreme Court decision that slashed damages from $2.5 billion to $500 million.

It's unclear what strategy BP will adopt. In earlier and smaller spills, it took a more conciliatory stance toward the government and litigants, but the Supreme Court decision, and the size of the spill in the Gulf, may persuade it to be more aggressive.

The cleanup and economic damages could cost BP billions of dollars.

"Is the new BP (really) the old BP that stepped up and met their responsibilities after some initial jousting in court?" asked Lloyd Benton Miller, one of the lead plaintiff's lawyers in the Exxon Valdez case. "Or is the new BP going to be a kind of post-Exxon BP that decides that Exxon had it right: The way to deal with this is to fight, fight, fight and grind down the plaintiff and the government as long as possible."

The company is expected to try to protect its own legal rights and corporate image — and it has a duty to its shareholders to do so. In recent weeks, however, this stance has run counter to demands that the company be more forthcoming about what caused the spill, how much oil is spewing out and how to clean it up.

BP has told the EPA that it will use less Corexit but will continue to use it at the seafloor because alternatives aren't readily available. Some scientists have warned that dispersants used in large quantities at that depth could make the spill worse.

Also Tuesday, BP said that it had briefed U.S. officials on its initial review of the accident, although it offered few additional details from two weeks ago, when company executives first testified before Congress. The announcement said it was too early to determine a cause or who was to blame.

At the same time, BP said this week that it would contribute up to $500 million for independent research to study, among other topics, the impact of spilled oil and dispersant on Gulf waters and how accidental oil spills compare with the "natural seepage" of oil from undersea fields.

Almost from the outset, BP acknowledged that it was the "responsible party" that would be required under the law to pay for the cleanup initially. In early congressional testimony, though, company officials implied that other companies were to blame for the explosion.

In what was seen as progress in the push for more transparency, the company agreed under pressure to allow a live video feed of the oil spill. However, members of Congress said they learned Tuesday that BP would stop the feed Wednesday during its latest attempt to cap the well.

BP officials also resisted calls to measure the spill, saying they feared that making an estimate would interfere with efforts to stop the leaks. Scientists greeted that explanation with widespread skepticism.

In response to senators' concerns that BP could elude at least part of its liability, Associate Attorney General Tom Perrelli said Tuesday that the Justice Department's "mandate is to make sure that we recover every dime of taxpayer funds."

When the Obama administration demanded that BP agree to pay more than the legal cap of $75 million in damages, BP demurred, however, saying that it would honor all "legitimate claims."

"Why not just say, 'We'll pay claims'?" said Brian O'Neill, a Minnesota attorney for plaintiffs in the Exxon Valdez case. "If you're weaseling around on the language, all that's doing is saying you're going to fight what each of the claims is."

Peter Anderson, a former federal prosecutor and a criminal defense lawyer who represents corporations, said BP's stance was understandable in some instances. "A triage kicks into play" inside corporations faced with a crisis, he said.

"If this were an historic event that was fixed in time, and the damage wasn't ongoing, I think there would be more candor," he said. "Once you have that artery open and pulsating, it almost becomes ridiculous that you're not putting 110 percent of your energy on saving the body instead of deflecting the blame."

The company's decisions, however, also are at odds with the kinder, gentler image that BP has tried to cultivate since a major corporate rebranding in 2000. The $200 million PR campaign claimed that the company was going "Beyond Petroleum" to investing in alternative energy, while it remained one of the world's largest crude oil producers.

In 2005, 15 BP employees were killed and 170 were injured in an explosion at a refinery in Texas; the following year its pipelines in Prudhoe Bay, Alaska, ruptured because of corrosion and spilled more than 200,000 gallons of oil. In 2007, the company pleaded guilty in both cases and agreed to pay $70 million in penalties.

When weighing whether to file criminal charges in connection with the Gulf spill, prosecutors will look at BP's past violations and whether it's cooperated with the government, and will size up the final environmental and economic toll.

"The facts are bad here," said David M. Uhlmann, who headed the Justice Department's environmental crimes section for seven years during the Clinton and George W. Bush administrations. "If they appear to be making arguments that are too technical in the face of an unspeakable tragedy, then they lose not only in the court of public opinion, but also in all likelihood in the court of law."

(Lauren French contributed to this article.)

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