Charles Silver, professor and the Roy W. and Eugenia C. McDonald Endowed Chair of Civil Procedure in the School of Law, discusses the controversy surrounding the criminal probe into the Gulf oil spill. This article originally appeared in the Huffington Post.
Now that oil is no longer pouring into the Gulf, everyone can breathe easier — except the people responsible for the spill. They may go to prison. The Justice Department has a criminal investigation under way. Admittedly, governmental investigations of business torts are more likely to result in fines than prison time.
Joseph Hazelwood, who captained the Exxon Valdez when it ran aground, was the only person indicted in connection with that accident, and he was sentenced to community service after being convicted on a misdemeanor charge.
The BP spill is different, of course. Eleven people died when the Deepwater Horizon caught fire, and the environmental damage is unprecedented.
The feds may reasonably decide that the magnitude of the catastrophe requires a high-profile criminal prosecution, the same conclusion President George W. Bush’s Justice Department reached in the wake of the Enron debacle. Still, if history provides any guidance, years will pass before anyone is indicted and few people, if any, will spend much time in prison.
We know that a criminal investigation is under way because Eric Holder, the attorney general, has said so many times. He first announced it at a press conference June 1. Since then, he has commented on it and clarified its scope, emphasizing that BP is not the only potential target.
Both for launching the investigation and discussing it openly, Holder has taken serious heat. Initially, political opponents of the Obama administration contended that the investigation diverted BP’s attention from its efforts to plug the well and deal with the consequences of the spill. The merits of this allegation never were clear. Even before the probe was acknowledged, BP’s managers knew the Environmental Protection Agency would punish the company severely. The reputational damage and civil consequences flowing from the spill were also known to be enormous.
BP’s executives must also have expected a criminal investigation. In 2007, the company pled guilty to felony violations of the Clean Water Act after a refinery outside Houston, Texas, exploded, killing 15, injuring 170 and ultimately saddling BP with $373 million in criminal and civil fines.