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Updated: Dec 22, 2019

It’s time to join the cacophony over the Gulf oil spill. I worked for the EPA as a criminal investigator for sixteen years, thirteen of them covering the West. One five-year investigation involved a oil platform off the California coast so I became familiar with the culture of oil companies, the culture of regulators, the regulations, and the law. Don’t forget the politics.

One thing that seems to be missing in the frenzy around the Gulf spill is an investigation into possible criminal violations by individuals (that is human beings, people) whose decisions contributed first to the deaths of eleven people then to the biggest environmental catastrophe since the Exxon Valdez spill in 1989. After that event, criminal investigators from every agency imaginable descended upon the tiny port of Valdez. The Coast Guard investigated. The Alaska State Troopers investigated. The FBI investigated. The EPA investigated. Investigators learned that if you wanted to be a player in the case, you had to come up with your own evidence; a statement, a study, some forensic facts, something to give you a seat at the table.

If you will recall, the only criminal violations developed was negligence on the part of Exxon the company (for which they paid a fine, chump change for them) and misdemeanor negligence against the master (for which he paid a fine and served community service). The third mate in charge of the ship had been granted immunity from prosecution in exchange for his cooperation. In a criminal investigation a person is not required to give a statement that might incriminate himself. The civil case is still going on after twenty-one years and scores of lawyers have retired on the fees they have earned.

Flash forward to 2010 and the Louisiana coast. With a new law in place the company faces a $1,000 penalty per barrel of oil discharged. With that much money at stake the company can afford a dream team of lawyers to keep things from moving forward.

Prosecuting companies is relatively easy since corporations have no right against self incrimination. The government can demand production of documents and emails and interview all the employees to see what they knew. All the evidence can be used against the corporation. But prosecuting the individuals responsible for the disaster is another matter. The negligent discharge of the oil is a crime, but that is a misdemeanor. Willful avoidance of conditions that lead to a discharge can be a felony with real prison time a possibility.

Just like the mob, the corporation instructs employees to clam up until they can get lawyered up (at company expense). Nobody talks, everybody walks. The lawyers can tell the government the worker won’t talk without immunity. To get the information the government must often give the guilty parties a pass to get to the truth.

This process takes months and often years. Given the political magnitude of the disaster watch to see how the case – if any – gets fast tracked, maybe only a couple of years. The corporation has time on its hands and legislators and the electorate have a short memory. If five years passes without charges, the statute of limitations runs and prosecution become impossible.

Another tactic is hyper-cooperation. BP had a pipeline fail in Alaska. The company produced all the requested documents, millions of pages scanned to a server someplace. EPA had one or two people to read them all online. BP then offered the government cash to settle that case and one involving fifteen fatalities in Texas and the government took the money and went home. No individuals were prosecuted.

From all that BP proved again that it’s all about the money.

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