The Justice Department has undermined its own criminal case against BP and the other corporate and individual targets in the Gulf oil spill case.
They have done that by transferring primary prosecutorial responsibility away from the Environmental Crimes Section to the Criminal Division.
That’s according to University of Michigan Law School Professor David Uhlmann, who gave the keynote address this morning to the ABA ALI Clean Water Act conference in Washington, D.C.
Uhlmann is the former head of the Justice Department’s Environmental Crimes Section.
“Why hasn’t the Justice Department filed criminal charges two and a half years after the Gulf oil spill began?” Uhlmann asked.
“Part of the answer may lie in the Justice Department’s decision in March 2011 to transfer the case from the Environmental Crimes Section to the Criminal Division of the Department.”
“At the time, the Department justified its action by explaining that it wanted to create a task force to provide more resources and streamlined decision-making. But that begs the question why the Environmental Crimes Section was not selected to lead the task force.”
Uhlmann was asked during the question and answer session whether the Department was trying to tank it’s own case.
“I don’t think this is a situation where the Department of Justice was trying to undermine its own case,” Uhlmann said. “But I do think their decision had that effect.”
“Moving the case out of the Environmental Crimes Section meant that the largest environmental crimes office in the world – which led the Exxon prosecution and had three decades of experience prosecuting oil spill cases – would no longer have a leadership role in the biggest environmental disaster in U.S. history.”
“In the 18 months since the transfer occurred, most of the Environmental Crimes Section prosecutors have been reassigned to other matters. The Criminal Division, which never has prosecuted an oil spill case nor any other environmental crime, is now exclusively in charge of the case.”
“Its prosecutors still could and perhaps will bring criminal charges under the Clean Water Act. But their focus appears to be on other crimes.”
In April, almost exactly two years after the Gulf oil spill began, the Justice Department announced the first criminal charges in the case.
The defendant was Kurt Mix, a BP engineer accused of deleting text messages regarding the size of the spill.
Mix claims that he was cooperating with the government and had provided investigators the information contained in the text messages, which could undermine the case against him.
Uhlmann said that “regardless of the merits of the charges, it seemed curious that the Justice Department, after investigating for two years, would start its criminal case with charges against a low-level engineer. Now, five months later with no additional charges in sight, the Department’s effort has morphed from curious to disconcerting.”
Uhlmann said that news reports this summer suggested that the Justice Department is trying to determine whether to file charges against BP officials for misleading the public and the government about the size of the spill while the company was scrambling to control the runaway well.
“The focus of any criminal prosecution of the Gulf oil spill, however, should be on the spill itself and the tragic loss of life that occurred on the Deepwater Horizon,” Uhlmann said. “The negligence of BP, Transocean, and Halliburton caused 11 people to die, incalculable damage to sensitive ecosystems, and billions of dollars in economic losses to communities along the Gulf of Mexico.”
“The lead charges against BP, Transocean, and Halliburton therefore should be criminal charges under the Clean Water Act, Seaman’s Manslaughter Statute, and Migratory Bird Treaty Act. To proceed otherwise would devalue the environmental crimes and worker deaths that occurred.”
“Criminal cases are more compelling when there is a sense of public urgency, which is no longer present regarding the Gulf oil spill,” Uhlmann said.
“Criminal charges are easier to prove at trial when witness recollections are fresh.
By waiting so long to bring criminal charges, the Justice Department has undermined the strength of its negotiating position, weakened its case if it goes to trial, and diminished the deterrent effect and the expression of commendation that are the primary goals of a criminal prosecution.”
“The criminal prosecution of the Gulf oil spill ultimately may prove to be a metaphor for our response to the spill more generally. It is hard to escape the conclusion that, while we have taken some positive steps, we could have done more. We changed how we regulate and enforce drilling permits. We took steps to ensure that victims of the spill were compensated. But in the wake of an unfathomable tragedy, we failed to heed the lessons of the spill. Congress passed no new laws to prevent future spills.”
“We are back to drilling as usual. BP is once more turning huge profits. We have not moved closer to a future fueled by alternative energy. The Gulf of Mexico will never be the same, but the country is unchanged and unfazed. We have moved on.”
“We once were able to learn from our mistakes, in Santa Barbara and in Cleveland and on rivers and streams across America. As we commemorate the 40th anniversary of the Clean Water Act, let us hope that we will again find common ground in our obligation to leave the earth and the environment better than we found it. Our children and our grandchildren are counting on us.”