After the spill is gone: The Gulf of Mexico, environmental crime, and the criminal law

Michigan Law Review

Volumn 109, Issue 8, 2011, Pages 1413-1461

  Uhlmann, David M ^a  

^a NONE

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EID: 79958246183     PISSN: 00262234     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (440)

1. Jane Lubchenco et al., Nat'l Oceanic & Atmospheric Admin. et al., Dep't of Commerce et al., BP Deepwater Horizon Oil Budget: What Happened To the Oil? 1 (2010) [hereinafter Oil Budget], available at http://www.noaanews.noaa.gov/stories2010/PDFs/OilBudget_description_%2083final.pdf
2. see also Timothy J. Crone & Maya Tolstoy, Magnitude of the 2010 Gulf of Mexico Oil Leak, 330 Science 634, 634 (2010) (estimating that the leak released 4.4 million barrels of oil).
3. See, e.g., Joel Achenbach & David Brown, In gulf oil spill's long reach, ecological damage could last decades, Wash. Post, June 6, 2010, at A01
4. Campbell Robertson & John Collins Rudolf, Cleanup and Questions Continue, N.Y. Times, Nov. 3, 2010, at A16
5. David Biello, How Long Will the Gulf of Mexico Oil Spill Last?, Sci. Am. (May 14, 2010), http://www.scientificamerican.com/article.cfm?id=how-long-will-oil-spill-last.
6. See Richard Camilli et al., Tracking Hydrocarbon Plume Transport and Biodegradation at Deepwater Horizon, 330 Science 201, 201 (2010).
7. See Oil Budget, supra note 1, at 1-3
8. see also Achenbach & Brown, supra note 2 (discussing the process of microbial breakdown of spilled hydrocarbon compounds).
9. Editorial, Science and the Gulf, N.Y. Times, Sept. 20, 2010, at A30.
10. The government obtained approximately $900 million in natural resource damages for the Exxon Valdez oil spill.
11. Cindy Chang, Exxon Valdez: a glimpse of the future for Louisiana?, Times-Picayune, May 8, 2010, http://www.nola.com/news/gulf-oil-spill/index.ssf/2010/05/exxon_valdez_a_glimpse_of_the.html
12. It has been suggested that the ecological damage to Prince William Sound may have exceeded the harm to the Gulf because the Alaskan crude was thicker and because the temperatures were much cooler. The Valdez spill also occurred closer to shore.
13. Nonetheless, the sheer volume of the Gulf oil spill (twenty times greater than the Valdez spill
14. see Laura Moss, The 13 Largest Oil Spills in History, Mother Nature Network (Jul. 16, 2010, 12 PM), http://www.mnn.com/earth-matters/wilderness-resources/stories/the-13-largest-oil-spills-in-history)
15. The number of states suffering harm-along with the fact that one billion dollars in 1990 is a much larger sum today-make a multi-billion-dollar natural-resource damage claim likely as a result of the Gulf oil spill. Perhaps in recognition of these facts, BP agreed in April 2011 to make a one billion dollar advanced payment for Gulf coast restoration efforts.
16. John M. Broder, BP Agrees to Pay $1 Billion for Start of Gulf Restoration, N.Y. Times, Apr. 22, 2011, at A13.
17. Cutler Cleveland, Deepwater Horizon oil spill, Encyclopedia of the Earth (Dec. 5, 2010, 12:00 AM), http://www.eoearth.org/article/Deepwater_Horizon_oil_spill.
18. US Reopens Nearly 3000 More Square Miles of Gulf to Fishing, Wall St. J., Oct. 5, 2010
19. NOAA Reopens More than 4,000 Square Miles of Closed Gulf Fishing Area, Nat'l Oceanic & Atmospheric Admin. (Aug. 27, 2010), http://www.noaanews.noaa.gov/stories2010/20100827_reopen.html [hereinafter NOAA Reopens]
20. see also Joel K. Bourne, Jr., The Deep Dilemma, Nat'l Geographic, Oct. 2010, at 40, 51-53 (reviewing, inter alia, the effects of the spill).
21. Tests by the Food and Drug Administration ("FDA") and NOAA have shown that the level of oil-related chemicals in seafood samples are below the level of concern.
22. NOAA Reopens, supra note 8.
23. Nevertheless, Louisiana has asked BP for $450 million to support testing and seafood marketing over the next two decades.
24. Shaila Dewan, Questions Linger as Shrimp Season Opens in Gulf, N.Y. Times, Aug. 17, 2010, at A19.
25. See generally Oxford Econ., Potential Impact of the Gulf Oil Spill on Tourism (2010), available at http://www.ustravel.org/sites/default/files/page/2009/11/Gulf_Oil_Spill_Analysis_Oxford_Economics_710.pdf.
26. Peter Baker & John M. Broder, White House Lifts Ban on Deepwater Drilling, N.Y. Times, Oct. 13, 2010, at A1.
27. On May 6, 2010, Department of the Interior Secretary Ken Salazar imposed a moratorium on new offshore drilling pending an investigation into the spill, though existing projects were allowed to continue.
28. NPR Staff & Wires, Interior Secretary Halts Offshore Drilling Leases, Nat'l Pub. Radio (May 6, 2010), http://www.npr.org/templates/story/story.php?storyId=126565762.
29. A revised ban was issued in July 2010 after a federal court enjoined the original moratorium.
30. MSNBC.com Staff & News Serv. Reports, Revised deep drilling moratorium is unveiled, MSNBC.com (July 12, 2010, 6:59 PM), http://www.msnbc.com/id/38204465/ns/disaster-inthe-gulf.
31. See, e.g., Baker & Broder, supra note 11
32. ("The [Department of the Interior's Bureau of Ocean Energy Management, Regulation and Enforcement] estimates that compliance with the added regulations will cost the deepwater industry $183 million a year, largely for changes in well design and the requirement that operators maintain subsea robots to operate blowout preventers in case primary control systems fail.")
33. see also Erica Werner, WH wants increased industry liability in oil spill, Associated Press, May 12, 2010, available at 5/12/10 AP DataStream 20:40:15 (Westlaw)
34. ("The White House asked Congress. to raise limits on BP's liability, approve new spending and increase taxes on oil companies for an emergency cleanup fund.").
35. Ben Casselman & Daniel Gilbert, Drilling Is Stalled Even After Ban Is Lifted, Wall St. J., Jan. 3, 2011, at A1.
36. See, e.g., John M. Broder, Reports Fault Administration on Spill, N.Y. Times, Oct. 7, 2010, at A20
37. Ayesha Rascoe, Oil spill response not up to date -panel co-chair, Reuters, Sept. 27, 2010, available at http://www.reuters.com/assets/print?aid=USN2725932420100927.
38. See, e.g., Spencer S. Hsu, Katrina compensation urged as judge faults Army Corps, Wash. Post, Nov. 20, 2009, at A03 (recounting a federal district court judge's acknowledgement of the "'monumental negligence'" of the government in maintaining floodwater channels).
39. In re: Oil Spill by the Oil Rig "Deepwater Horizon" in the Gulf of Mexico, on April 20, 2010, 731 F. Supp. 2d 1352, 1353 & n.1 (J.P.M.L. 2010) (consolidating seventy-seven civil actions and noting that there are more than 200 related civil actions).
40. Eric Holder, Attorney Gen., Dep't of Justice, Attorney General Eric Holder Announces Civil Lawsuit Regarding Deepwater Horizon Oil Spill (Dec. 15, 2010), http://www.justice.gov/iso/opa/ag/speeches/2010/ag-speech-101215.html.
41. See John Schwartz, With Criminal Charges, Costs to BP Could Soar, N.Y. Times, June 17, 2010, at A18
42. Marisa Taylor, Criminal charges likely from Gulf oil spill, legal experts say, McClatchy Newspapers, May 12, 2010, http://www.mcclatchydc.com/2010/05/12/94061/federallaws-point-to-criminal.html
43. Justice Department Probes Spill; Charges Expected, Nat'l Pub. Radio (June 9, 2010), http://www.npr.org/templates/story/story.php?storyId=127586497.
44. Clean Water Act § 309(c)(1), 33 U.S.C. § 1319(c)(1) (2006) (negligent discharges in violation of 33 U.S.C. § 1321(b)(3)); 33 U.S.C. § 1319(c)(2) (knowing discharges in violation of 33 U.S.C. § 1321(b)(3)).
45. Migratory Bird Treaty Act § 2, 16 U.S.C. § 703(a) (2006) (prohibiting the unauthorized taking or killing of migratory birds); 16 U.S.C. § 707(a) (providing misdemeanor penalties for any violations of the provisions of the Migratory Bird Treaty Act).
46. Exxon Shipping Co. and Exxon Corp., No. 90-CR-00015 (D. Alaska 1991).
47. In the Exxon Valdez case, the United States also charged strict liability violations of the Refuse Act, 33 U.S.C. §§ 407, 411, because the discharge occurred in navigable waters of the United States.
48. 18 U.S.C. § 1115 (2006) (providing felony sanctions for any vessel owner or person "through whose. neglect. the life of any person is destroyed"). There may be questions raised about whether federal manslaughter statutes apply when death occurs on foreign-flagged vessels operating within the exclusive economic zone of the United States, which is not within the territorial waters of the United States. Under 18 U.S.C. § 7(7), however, the special maritime and territorial jurisdiction of the United States extends to "[a]ny place outside the jurisdiction of any nation with respect to an offense committed. against a national of the United States."
49. Marine Mammal Protection Act § 102(a), 16 U.S.C. § 1372(a) (2006) (prohibiting the unauthorized taking of marine mammals in waters under the jurisdiction of the United States); 16 U.S.C. § 1375(b) (providing misdemeanor penalties for knowing violations of the Marine Mammal Protection Act).
50. Endangered Species Act § 9(a), 16 U.S.C. § 1538(a) (2006) (prohibiting the unauthorized taking of endangered species); 16 U.S.C. § 1540(b) (providing misdemeanor penalties for knowing violations of the Endangered Species Act).
51. Outer Continental Shelf Lands Act § 24(c), 43 U.S.C. § 1350(c) (2006) (providing felony penalties for knowing and willful violations of the Outer Continental Shelf Lands Act and the terms of any lease, license, or permit issued under the Act).
52. U.S.C. § 1001 (2006) (false statements); id. §§ 1503(a), 1505, 1512(c), 1519 (obstruction of justice). The Criminal Division of the Justice Department, which in March 2011 assumed leadership of the Gulf oil spill task force, is reportedly investigating possible securities violations as well.
53. David Hammer, BP officials queried in federal investigation into possibility of insider training, Times-Picayune (Mar. 16, 2011, 10:30 PM), http://www.nola.com/news/gulf-oil-spill/index.ssf/2011/03/bp_officials_queried_in_federa.html.
54. See infra note 122 and accompanying text.
55. Compare Oxford Econ., supra note 10, at 2 (projecting regional costs at $22.7 billion)
56. with Victoria Bryan, BP to raise $50 billion for oil spill costs: report, Reuters, June 20, 2010, available at http://www.reuters.com/assets/print?aid=USTRE65J10G20100620 (suggesting BP's anticipation of costs as high as fifty billion dollars).
57. Under the Alternative Fines Act, 18 U.S.C. § 3571 (2006), the maximum criminal penalty for the Clean Water Act violations will be twice the losses resulting from the oil spill.
58. See infra note 172.
59. To date, the largest criminal fine-$1.3 billion (along with $1 billion in civil penalties)-was paid by Pfizer for marketing fraud.
60. Gardiner Harris, Pfizer Pays $2.3 Billion to Settle Inquiry Over Marketing, N.Y. Times, Sept. 3, 2009, at B4.
61. See, e.g., Nicholas Graham, BP's Profits Far Outweigh The Cost Of Cleaning Up Gulf Oil Spill, Huffington Post (May 27, 2010, 12:18 PM), http://www.huffingtonpost.com/2010/05/27/bps-profits-far-outweigh_n_591992.html.
62. Jad Mouawad & Clifford Krauss, Another Torrent BP Works to Stem: Its C.E.O., N.Y. Times, June 4, 2010, at A1, available at http://www.nytimes.com/2010/06/04/us/04image.html.
63. To some extent, Mr. Hayward's comment has been taken out of context: his statement came after a lengthy expression of regret and remorse about the spill. Nonetheless, his remarks reinforced public impressions of BP's troubled corporate culture.
64. In June 2010, a Washington Post-ABC News poll showed that 64 percent of Americans thought the federal government should pursue criminal charges against BP and the other companies involved in the Gulf oil spill.
65. Jon Cohen, Poll shows negative ratings for BP, federal government, Wash. Post Behind the Numbers (June 7, 2010, 12:00 PM), http://voices.washingtonpost.com/behind-the-numbers/2010/06/poll_shows_negative_ratings_fo.html.
66. Response Efforts to the Gulf Coast Oil Spill: Hearing Before S. Comm. on Commerce, Sci., & Transp., 111th Cong. 1 (2010) [hereinafter Response Efforts Hearing] (statement of Admiral Thad Allen, National Incident Commander), available at http://commerce.senate.gov (click "Hearings" tab; then change "Browse by" boxes to "May" and "2010"; then click "Go").
67. BP owned 65% of the well; Anadarko owned 25%, and Mitsui owned 10%.
68. See Lease Owner Data for Lease G32306, Bureau Ocean Energy Mgmt., Reg. & Enforcement, http://www.gomr.boemre.gov/homepg/fastfacts/leaseowner/master.asp (check "Lease Number" box; then type "G32306" in Lease Number text entry field; then click "Submit" button) (last visited Mar. 4, 2011)
69. Yuji Okada & Shigeru Sato, Mitsui's MOEX Withholds $480 Million Costs From BP, Bloomberg Businessweek, Aug. 3, 2010, http://www.businessweek.com/news/2010-08-03/mitsuis-moex-withholds-480-million-costs-from-bp.html.
70. Previously, the largest accidental offshore oil spill was the Ixtoc I spill off the coast of Mexico in 1979, which lasted nearly a year and which resulted in the release of 454,000 tons of crude.
71. Remy Melina, Top 10 worst oil spills, MSNBC.com (Apr. 29, 2010, 1:45:56 PM), http://www.msnbc.msn.com/id/36852827/ns/us_news-environment/.
72. The largest offshore spill of any kind occurred in 1991 during the first Gulf War, when Saddam Hussein ordered the intentional discharge of nearly 1.5 million tons of oil from wells and pipelines as Iraqi forces retreated from Kuwait.
73. Nat'l Comm'n on the BP Deepwater Horizon Oil Spill & Offshore Drilling, Deep Water: The Gulf Oil Disaster and the Future of Offshore Drilling 92 (2011) [hereinafter National Commission Report], available at http://www.oilspillcommission.gov/sites/default/files/documents/DEEPWATER_ReporttothePresident_FINAL.pdf.
74. Bourne, Jr., supra note 8, at 45.
75. David Barstow et al., Deepwater Horizon's Final Hours, N.Y. Times, Dec. 26, 2010, at A1.
76. Bourne, Jr., supra note 8, at 45
77. see also Barstow et al., supra note 40.
78. Bourne, Jr., supra note 8, at 45.
79. Barstow et al., supra note 40.
80. Ian Urbina, Workers on Doomed Rig Voiced Concern on Safety, N.Y. Times, July 22, 2010, at A1.
81. Guidelines require inspection every three to five years.
82. Frank Jordans & Garance Burke, Deepwater Horizon rig had history of spills, fires before big Gulf of Mexico oil spill, NOLA.com, Apr. 30, 2010, http://www.nola.com/news/gulf-oilspill/index.ssf/2010/04/deepwater_horizon_rig_had_hist.html.
83. National Commission Report, supra note 36, at 94.
84. See generally Nat'l Acads., Interim Report on Causes of the Deepwater Horizon Oil Rig Blowout and Ways to Prevent Such Events 5-9 (2010), available at http://www.nap.edu/catalog/13047.html (click the "DOWNLOAD FREE PDF" button).
85. Tim Dickinson, The Spill, the Scandal and the President, Rolling Stone, June 24, 2010, at 54, 60.
86. See Bourne, Jr., supra note 8, at 46.
87. Dickinson, supra note 51, at 60.
88. Nat'l Acads., supra note 50, at 9.
89. Although there are "no formal guidelines for the interpretation and approval of the test results, it is clear that pressure buildup or flow out of a well [was] an irrefutable sign that the cement did not establish a flow barrier."
90. Id. at 10
91. see also Barstow et al., supra note 40.
92. David Barstow et al., Between Blast and Spill, One Last, Flawed Hope, N.Y. Times, June 22, 2010, at A1.
93. National Commission Report, supra note 36, at 112.
94. See supra note 54 and accompanying text.
95. Nat'l Acads., supra note 50, at 10.
96. Id. at 10-11
97. ("Had meaningful oversight of data on flow in and flow out been realized during cementing operations, problems with the cementing operations might have been recognized earlier").
98. National Commission Report, supra note 36, at 114.
99. (quoting testimony of Transocean official Bill Ambrose).
100. Barstow et al., supra note 55.
101. But see Nat'l Acads., supra note 50, at 12-13
102. (noting that further investigation into "the design, test, and maintenance of" the blowout preventer system is necessary and underway).
103. Barstow et al., supra note 55.
104. see also National Commission Report, supra note 36, at 115
105. (describing failure of the deadman system).
106. Cleveland, supra note 7.
107. "Federal regulators had specifically exempted the Deepwater Horizon from having such a remote shutoff switch partially on the grounds of the costliness of the device," which was valued at roughly $500,000, or "less than one percent of the Deepwater Horizon capital cost."
108. Det Norske Veritas, Final Report for the U.S. Dep't of the Interior: Forensic Examination of Deepwater Horizon Blowout Preventer, 4-5, 173-76, Mar. 20, 2011, available at. http://www.deepwaterinvestigation.com/external/content/document/3043/1047291/1/DNV%20Report%20EP030842%20for%20BOEMRE%20Volume%20I.pdf.
109. Barstow et al., supra note 40
110. ("Investigators have found a host of problems-dead batteries, bad solenoid valves, leaking hydraulic lines-that were overlooked or ignored. Transocean had also never performed an expensive 90-day maintenance inspection that the manufacturer said should be done every three to five years.").
111. Response Efforts Hearing, supra note 33.
112. Nat'l Acads., supra note 50, at 13
113. see also Barstow et al., supra note 40
114. ("For nine long minutes, as the drilling crew battled the blowout and gas alarms eventually sounded on the bridge, no warning was given to the rest of the crew. For many, the first hint of crisis came in the form of a blast wave.").
115. Cleveland, supra note 7.
116. Briefing Memo, Committee on Energy and Commerce, Hearing on Inquiry into the Deepwater Horizon Gulf Coast Oil Spill, 1 (May 10, 2010), available at http://democrats.energycommerce.house.gov/Press_111/20100510/Briefing.Memo.oi.05.10.2010.pdf.
117. When the spill began, BP officials had estimated that only 1,000 barrels of oil per day were leaking from the Macondo well.
118. Leslie Kaufman & Clifford Krauss, BP Says Its Latest Effort To Stop Gulf Leak Failed, N.Y. Times, May 30, 2010, at A1.
119. CBS/Associated Press, BP Admits "Top Kill" Fails, Will Try Cap Next, CBS News, May 30, 2010, http://www.cbsnews.com/stories/2010/05/29/business/main6530758.shtml.
120. Joel Achenbach & David Fahrenthold, Oil-spill flow rate estimate surges to 35,000 to 60,000 barrels a day, Wash. Post (June 16, 2010, 9:30 PM), http://www.washingtonpost.com/wpdyn/content/article/2010/06/15/AR2010061504267_pf.html.
121. The National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling reported in October 2010 that the government repeatedly underestimated how much oil was flowing into the Gulf of Mexico.
122. Broder, supra note 14.
123. Response Efforts Hearing, supra note 33, at 3.
124. Gulf of Mexico Oil Spill (2010), N.Y. Times, http://topics.nytimes.com/top/reference/timestopics/subjects/o/oil_spills/gulf_of_mexico_2010/index.html (last updated Mar. 2011).
125. David Muir et al., BP's Top Cap is Working, But Oil Spill is Still Spreading, ABC News, June 7, 2010, http://abcnews.go.com/WN/Media/bp-top-cap-success-shore-cleanupproves-difficult/story?id=10849580.
126. Cleveland, supra note 7.
127. MSNBC.com News Servs., Oil fallout: Feds expand Gulf fishing ban, MSNBC.com (May 18, 2010, 3:29:11 PM), http://www.msnbc.msn.com/id/37212911/.
128. See Jonathan Corum et al., Methods That Have Been Tried to Stop the Leaking Oil, N.Y. Times, http://www.nytimes.com/interactive/2010/05/25/us/20100525-topkill-diagram.html (last updated Aug. 17, 2010).
129. Harry R. Weber, Blown-out BP well finally killed at bottom of Gulf, Associated Press, Sept. 19, 2010, available at 9/19/10 AP DataStream 18:30:50 (Westlaw).
130. Crone & Tolstoy, supra note 1, at 634.
131. An August 4 report estimated that one quarter of the oil was burned, skimmed, or siphoned from the well, that another quarter naturally evaporated or dissolved, and that a third quarter dispersed in the Gulf.
132. Cleveland, supra note 7.
133. The remaining quarter, according to the report, is either on or "below the surface as light sheen and weathered tar balls, has washed ashore or been collected from the shore, or is buried in sand and sediments."
134. Lubchenco et al., supra note 1, at 1.
135. See Gulf of Mexico Oil Spill (2010) supra note 81.
136. Two government reports have found low concentrations of toxic compounds deep in the ocean, but questions remain about issues such as an apparent decline in oxygen levels in the water.
137. National Commission Report, supra note 36, at 115.
138. Justin Gillis & John M. Broder, Nitrogen-Cement Mix Is Focus of Gulf Inquiry, N.Y. Times, May 11, 2010, at A13.
139. Henry Fountain & Tom Zeller Jr., Panel Suggests Signs of Trouble Before Rig Blast, N.Y. Times, May 26, 2010, at A1
140. see also Incident Investigation Team, BP, Deepwater Horizon Accident Investigation Report 49-180 (2010), available at http://www.bp.com/liveassets/bp_internet/globalbp/globalbp_uk_english/incident_response/STAGING/local_assets/downloads_pdfs/Deepwater_Horizon_Accident_Investigation_Report.pdf (drawing comparable conclusions).
141. See Letter to the National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling, Oct. 28, 2010, available at http://graphics8.nytimes.com/packages/pdf/science/spilldoc.PDF
142. BP knew cement was poor quality before its use in well Testing showed flaws weeks before the gulf explosion that killed 11, L.A. Times, Oct. 29, 2010, at 1.
143. See Press Release, Halliburton, Halliburton Comments on National Commission Cement Testing (Oct. 28, 2010), available at http://www.halliburton.com/public/news/pubsdata/press_release/2010/corpnws_102810.html.
144. See Nat'l Acads., supra note 50, at 14-16.
145. Id. at 14.
146. Additionally, testimony has indicated that "standards for education, training, and professional certification of private-sector decision-making personnel involved in drilling operations are relatively minimal compared with other safety-critical industries."
147. Id. at 15.
148. National Commission Report, supra note 36, at 122.
149. Id. at 122-26.
150. An April 2011 Coast Guard report also faulted Transocean's management systems and safety culture.
151. John M. Broder, Companies, Crews and Regulators Share Blame in Coast Guard Report on Oil Spill, N.Y. Times, Apr. 23, 2011, at A9.
152. According to Interior Department investigations, MMS managers received bonuses for expediting risky offshore oil leases. Auditors were instructed not to investigate questionable deals. The oil industry gave agency safety inspectors gifts and allegedly even drafted inspection reports for the MMS to accept as their own.
153. Dickinson, supra note 51, at 56.
154. See The Deepwater Horizon Incident: Are the Minerals Management Service Regulations Doing the Job?: Oversight Hearing Before the Subcomm. on Energy and Mineral Res. of the H. Comm. on Natural Res., 111th Cong. 14-15 (2010) [hereinafter MMS Hearing] (statement of Mary L. Kendall, former Acting Inspector General for the Department of the Interior)
155. see also Nat'l Acads., supra note 50, at 18
156. ("It is not apparent to the committee that MMS had sufficient in-house expertise and technical capabilities to independently evaluate the adequacy of the technological standards and practices that industry developed for deepwater drilling.").
157. See National Commission Report, supra note 36, at 126.
158. Another factor in the disaster could have been federal regulation of well cementing, which fails to specify the type of cement required.
159. Mitch Weiss & Jeff Donn, AP Impact: Bad cement jobs plague offshore rigs, Associated Press, May 24, 2010, available at 5/24/10 AP Datastream 04:40:34 (Westlaw). Companies are simply "urged" to follow American Petroleum Institute guidelines.
160. In contrast, more specific standards exist on cement work for roads, bridges, and buildings. The MMS identified "cementing as a factor in 18 of 39 well blowouts at Gulf rigs from 1992 to 2006."
161. MMS employed approximately 60 inspectors for the Gulf's 4,000 facilities, compared with 10 inspectors for 23 facilities in the Pacific.
162. MMS Hearing, supra note 102, at 14 (statement of Mary L. Kendall, former Acting Inspector General for the Department of the Interior).
163. See MMS Hearing, supra note 102, at 14 (statement of Mary L. Kendall, former Acting Inspector General for the Department of the Interior)
164. see also Nat'l Acads., supra note 50, at 16
165. National Commission Report, supra note 36, at 126.
166. MMS Hearing, supra note 102, at 14-15 (statement of Mary L. Kendall, former Acting Inspector General for the Department of the Interior).
167. Cleveland, supra note 7
168. Dickinson, supra note 51.
169. In a 2007 Environmental Impact Statement regarding drilling leases for 2007-2012 for the region encompassing the Macondo well, the MMS stated, "Offshore oil spills resulting from a proposed action are not expected to damage significantly any wetlands along the Gulf Coast. Overall, impacts to wetland habitats from an oil spill associated with activities related to a proposed action would be expected to be low and temporary."
170. Cleveland, supra note 7 (alteration in original).
171. Bourne, Jr., supra note 8, at 50
172. Dickinson, supra note 51, at 58.
173. Moreover, among its equipment providers for spill response, BP listed the website of a Japanese home-shopping network.
174. Dickinson, supra note 51, at 59.
175. National Commission Report, supra note 36, at 127.
176. Press Release, U.S. Dep't of the Interior, Salazar Swears-In Michael R. Bromwich to Lead Bureau of Ocean Energy Management, Regulation and Enforcement (June 21, 2010), available at http://www.doi.gov/news/pressreleases/Salazar-Swears-In-Michael-R-Bromwichto-Lead-Bureau-of-Ocean-Energy-Management-Regulation-and-Enforcement-Secretarial-Order-Begins-Reorganization-of-Former-MMS.cfm
177. Bureau of Ocean Energy Management, Regulation and Enforcement: MMS Gets A Name Change, Huffington Post (June 29, 2010, 5:37 PM), http://www.huffingtonpost.com/2010/06/29/bureau-of-ocean-energy-ma_n_629916.html.
178. See supra note 107 and accompanying text.
179. David M. Uhlmann, Environmental Crime Comes of Age: The Evolution of Criminal Enforcement in the Environmental Regulatory Scheme, 2009 Utah L. Rev. 1223, 1246 (2009).
180. In this context, "significant harm" includes public health effects (serious injuries or deaths) and environmental harm (ecological impacts such as loss of wildlife or fish kills). Significant harm also could include evacuations or cleanups involving substantial expenditures.
181. See David M. Uhlmann, Crimes on the Gulf, Law Quadrangle, Fall 2010, at 31 [hereinafter Uhlmann, Crimes on the Gulf]
182. David M. Uhlmann, Op-Ed., Prosecuting Crimes Against the Earth, N.Y. Times, June 4, 2010, at A27 [hereinafter Uhlmann, Prosecuting Crimes Against the Earth].
183. See Brian Montopoli, Obama Vows "Justice" For Oil Spill Crimes, Political Hotsheet, CBS News (June 1, 2010, 12:26 PM), http://www.cbsnews.com/8301-503544_162-20006435-503544.html.
184. Aman Batheja & Maria Recio, Perry backs offshore drilling, says spill may be act of God, Fort Worth Star-Telegram, May 4, 2010, http://www.star-telegram.com/2010/05/03/v-print/2160779/perry-backs-offshore-drilling.html.
185. Kate Phillips, After Explaining a Provocative Remark, Paul Makes Another, N.Y. Times, May 22, 2010, at A10.
186. Stephanie Condon, Joe Barton's Apology Continues to Spark Uproar, Political Hotsheet, CBS News (June 18, 2010 10:22 AM), http://www.cbsnews.com/8301-503544_162-20008143-503544.html.
187. David Hammer, Oil spill hearings: BP man on Deepwater Horizon rig refuses to testify, says he will take the Fifth, Times-Picayune (May 26, 2010, 6:34 PM), http://www.nola.com/news/gulf-oil-spill/index.ssf/2010/05/oil_spill_hearings_bp_man_on_d.html
188. MMS is now the Bureau of Ocean Energy Management, Regulation and Enforcement.
189. See supra note 111 and accompanying text.
190. Exxon Corporation pleaded guilty to criminal violations of the Migratory Bird Treaty Act; Exxon Shipping Company pleaded guilty to criminal violations of the Clean Water Act, the Migratory Bird Treaty Act, and the Refuse Act. Exxon Shipping Co. and Exxon Corp., No. 90-CR-00015 (D. Alaska 1991)
191. see also Press Release, Envtl. Prot. Agency, Exxon to Pay Record One Billion Dollars in Criminal Fines and Civil Damages in Connection with Alaskan Oil Spill (Mar. 13, 1991), available at http://www.epa.gov/history/topics/valdez/02.htm.
192. See Press Release, Guillermo Gil, U.S. Attorney, Three Corporations Fined $75 Million for Puerto Rico Oil Spill: Largest Federal Environmental Crime Fine in U.S. History (Sept. 25, 1996), available at http://www.justice.gov/opa/pr/1996/Sept96/470enr.htm.
193. Exxon Shipping, No. 90-CR-00015
194. see also Peter J. Henning, Looking for Liability in BP's Gulf Oil Spill, DealBook, N.Y. Times (June 7, 2010, 9:30 AM), http://dealbook.blogs.nytimes.com/2010/06/07/looking-for-liability-in-bps-gulf-oil-spill/.
195. Exxon Shipping was sentenced to pay a fine of $125 million and Exxon Corporation was sentenced to pay a fine of $25 million, but $125 million of the total fine amount was remitted as restitution. Exxon Shipping, No. 90-CR-00015.
196. Criminal Docket for Case No. 3:95-cr-00084-ADC at 2-4, United States v. Rivera, 942 F. Supp. 732 (D.P.R. 1996) (No. 95-084 (HL)). Three corporate defendants, Bunker Group Puerto Rico, Bunker Group, Inc., and New England Marine Services were sentenced to pay fines of twentyfive million dollars per corporation for their roles in the Puerto Rico oil spill.
197. The third largest penalty for environmental crime, prior to the Gulf oil spill, was the fifty million dollar fine imposed on BP after an explosion and fire killed fifteen workers at BP's troubled Texas City refinery in 2005.
198. David Batty, BP agrees to pay $50m fine over Texas City deaths, Guardian, Aug. 13, 2010, at 22.
199. The Gulf oil spill involved the discharge of twenty times more oil than the Exxon Valdez oil spill, in which eleven million gallons of oil were discharged.
200. See Chang, supra note 6.
201. The Gulf oil spill caused more economic damage because it affected the economy of an entire region.
202. The Migratory Bird Treaty Act, the Marine Mammal Protection Act, and the Endangered Species Act were also violated in the Gulf oil spill, but their prohibitions involve harm to wildlife, not discharge of oil.
203. See supra notes 20-26.
204. Likewise, the Seaman's Manslaughter Act was violated if the worker deaths resulted from negligence, willful misconduct, or inattention to duties, but the statute applies to the worker deaths, not the spill itself.
205. The Outer Continental Shelf Lands Act governs drilling activities in the Gulf and therefore implicates whether the drilling was conducted in a lawful manner.
206. Title 18 provisions regarding false statements and obstruction of justice focus on interaction with regulators, and potential Title 18 fraud charges involve securities regulation.
207. Clean Water Act § 311(b)(3), 33 U.S.C. § 1321(b)(3) (2006).
208. See also discussion infra Section IV.B.
209. 40 C.F.R. § 110.3 (2010). The regulatory standard of causing a sheen on the surface of the water or sludge below the surface of the water sets a relatively de minimis standard for harmful discharge quantities in oil spill cases, which easily is met here.
210. See 33 U.S.C. § 1319(c)(2). A knowing violation of the Clean Water Act requires proof that the defendant knew about the discharge but does not require proof that the defendant knew the discharge was unlawful. United States v. Weitzenhoff, 35 F.3d 1275, 1283-86 (9th Cir. 1993)
211. United States v. Sinskey, 119 F.3d 712, 715-19 (8th Cir. 1997). In the oil spill context, a knowing violation would require proof that the defendant knew that a spill would occur but not that the discharge required permits.
212. Id. § 1319(c)(1). To prove a negligent violation, the government would need to show that the discharge occurred because the defendant failed to exercise reasonable care. United States v. Ortiz, 427 F.3d 1278, 1283 (10th Cir. 2005); United States v. Hanousek, 176 F.3d 1116, 1121 (9th Cir. 1999).
213. See David M. Uhlmann, Prosecuting Worker Endangerment: The Need for Stronger Criminal Penalties for Violations of the Occupational Safety and Health Act, Advance: J. ACS Issue Groups, Spring 2009, at 191, 198-99.
214. Uhlmann, Crimes on the Gulf, supra note 114
215. Uhlmann, Prosecuting Crimes Against the Earth, supra note 114.
216. MSNBC.com News Servs., Worker: Transocean, BP argued before blast, MSNBC.com (May 26, 2010, 7:23 PM), http://www.msnbc.msn.com/id/37363106/ns/39428558.
217. "Recklessness" is a higher mens rea state than ordinary negligence. Recklessness occurs when a defendant "consciously disregards a substantial and unjustifiable risk that. will result from his conduct." Model Penal Code § 2.02(2)(c) (1962)
218. see also Black's Law Dictionary 1385 (9th ed. 2009) (defining recklessness as "[c]onduct whereby the actor does not desire harmful consequence but nonetheless foresees the possibility and consciously takes the risk Recklessness involves a greater degree of fault than negligence but a lesser degree of fault than intentional wrongdoing.").
219. In contrast, willful blindness-which occurs when someone takes affirmative steps to shield herself from facts that otherwise would be obvious-can substitute for knowledge.
220. See, e.g., United States v. Hopkins, 53 F.3d 533, 541-42 (2d Cir. 1995) (defendant could not escape liability if he "'deliberately and consciously avoided'" knowledge of the violation).
221. See supra notes 44-70 and accompanying text
222. see also Steven Mufson, Experts, rivals blast BP's practices, Wash. Post, Nov. 10, 2010, at A04
223. David Hammer, 5 key human errors, colossal mechanical failure led to fatal Gulf oil rig blowout, Times-Picayune (Sept. 5, 2010, 6:00 AM), http://www.nola.com/news/gulf-oil-spill/index.ssf/2010/09/5_key_human_errors_colossal_me.html.
224. See Incident Investigation Team, supra note 92
225. see also Dina Cappiello et al., BP report blames itself, others for oil spill, NBC26, Sept. 8, 2010, http://www.nbc26.com/Global/story.asp?S=13115835&clienttype=printable.
226. As the presidential commission noted, "irreducible uncertainty may persist regarding the precise contribution to the blowout of each of several potentially immediate causes"
227. National Commission Report, supra note 36, at 122
228. Of course, prosecutors may develop better evidence since, unlike the presidential commission, they can use the subpoena power of the grand jury.
229. The presidential commission appears to have reached a similar conclusion by focusing on the failure of industry management.
230. See N.Y. Cent. & Hudson River R.R. Co. v. United States, 212 U.S. 481, 494 (1909);
231. United States v. Hilton Hotels Corp., 467 F.2d 1000, 1005 (9th Cir. 1972); cf. United States v. Bank of New England, 821 F.2d. 844, 856 (1st Cir. 1987) (upholding the "collective knowledge" doctrine, which attributes to a corporation the knowledge of all its employees and agents).
232. See United States v. Ortiz, 427 F.3d 1278, 1283 (10th Cir. 2005) (stating that a person "violates the [Clean Water Act] by failing to exercise the degree of care that someone of ordinary prudence would have exercised in the same circumstances, and, in so doing, discharges any pollutant into United States waters [in violation of the Act]")
233. United States v. Hanousek, 176 F.3d 1116, 1121 (9th Cir. 1999) ("Congress intended that a person who acts with ordinary negligence in violating 33 U.S.C. § 1321(b)(3) may be subject to criminal penalties.").
234. See Ortiz, 427 F.3d 1278 (Tenth Circuit)
235. Hanousek, 176 F.3d 1116 (Ninth Circuit). In this regard, it should be noted that the Supreme Court denied certiorari in Hanousek over the dissent of Justices Thomas and O'Connor. Hanousek v. United States, 528 U.S. 1102 (2000) (denying certiorari).
236. It is uncertain whether the same result would occur today given the changes in the Court's membership.
237. See In re Needham, 354 F.3d 340, 345 (5th Cir. 2003) (rejecting government arguments about the scope of federal jurisdiction under the Clean Water Act)
238. United States v. Ahmad, 101 F.3d 386, 390-91 (5th Cir. 1996) (rejecting government arguments about knowledge requirements in a criminal prosecution under the Clean Water Act and government claims that violation of the Clean Water Act is a public welfare offense).
239. An alternative for BP would be to challenge the governing legal standard in pretrial motions under Rule 12(b)(2) of the Federal Rules of Criminal Procedure.
240. See generally James Fallows Tierney, Comment, Summary Dismissals, 77 U. Chi. L. Rev. 1841 (2010).
241. If the court requires a heightened showing of negligence, the government would need to obtain a new indictment and would face a more difficult evidentiary burden at trial. If the court follows Hanousek and Ortiz and requires only ordinary negligence, BP could still plead guilty, although it would not receive as much credit for cooperation during plea negotiations with the government.
242. Miguel Bustillo, Big Spat on Rig Preceded Explosion, Wall St. J., May 25, 2010, at A7.
243. Robbie Brown, Adviser Says He Raised Concerns to BP on Well, N.Y. Times, Aug. 25, 2010, at A13.
244. See Ed Crooks, BP's role in Deepwater Horizon drilling highlighted by contractors, Fin. Times Energy Source Blog (May 11, 2010, 1:48 PM), http://blogs.ft.com/energy-source/2010/05/11/bps-role-in-deepwater-horizon-drilling-highlighted-by-contractors/.
245. An exception occurs when the rig operator feels that the safety of the vessel would be compromised by actions demanded by the well owner.
246. See infra notes 203-211 and accompanying text.
247. As a matter of prosecutorial discretion, the Justice Department usually does not charge criminal violations of strict liability statutes such as the Migratory Bird Treaty Act (and the Refuse Act) unless there is negligence, which reflects the view that criminal prosecution should be reserved for cases where there is at least some evidence of wrong doing.
248. Uhlmann, Crimes on the Gulf, supra note 114, at 31.
249. Given the evidence of negligence in the Gulf oil spill, however, the government is likely to charge Migratory Bird Treaty Act violations, proof of which will require the government to show only that the defendants' actions led to the taking of a migratory bird-a strict liability standard. With thousands, if not millions, of birds coated in oil, evidence to support such strict liability violations is readily available.
250. Id. at 32.
251. See United States v. BP Exploration (Alaska), Inc., No. A99-0141CR(JKS) (D. Alaska 1999) (criminal violations of CERCLA, 42 U.S.C. § 9601 et seq.). BP acknowledged in the plea agreement that it had provided "inadequate oversight and supervision" of environmental, health, and safety requirements and agreed to implement a national environmental compliance program at BP facilities, including its deepwater drilling operations in the Gulf of Mexico.
252. United States v. BP Prods. N. Am. Inc., 610 F. Supp. 2d 655, 660 (S.D. Tex. 2009). Investigators concluded that BP had failed to follow its own safety procedures.
253. Id. at 664-65.
254. Press Release, Cohen, U.S. Attorney, Dist. of Alaska, British Petroleum Exploration (Alaska) Agrees to Plead Guilty to a Criminal Violation of the Clean Water Act and Pay $20 Million in Criminal Penalties (Oct. 25, 2007), available at http://www.justice.gov/usao/ak/press/October%202007/BPXA_071025.pdf.
255. "Since 2007, according to analysis by the Center for Public Integrity, BP has received 760 citations for 'egregious and willful' safety violations-those 'committed with plain indifference to or intentional disregard for employee safety and health.'"
256. Dickinson, supra note 51, at 59-60.
257. During the same time period, the rest of the oil industry received only one citation.
258. See id. at 60.
259. U.S. Dep't of Justice, United States Attorneys' Manual, tit. 9, ch. 28.600 (2008). While the history of related companies is relevant to the exercise of prosecutorial discretion, it is unlikely that evidence of prior violations by other BP subsidiaries would be admissible in a trial involving BP Exploration and Production. If such evidence were admissible, it could not be used to show that BP Exploration and Production acted in conformity with the past misconduct of other BP entities. Evidence of prior bad acts could only be used "for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Fed. R. Evid. 404(b).
260. See supra notes 130, 142 and accompanying text.
261. National Commission Report, supra note 36, at 124.
262. See Gulf of Mexico Oil Spill (2010), supra note 81.
263. see also David Barstow et al., Regulators Failed to Address Risks in Oil Rig Fail-Safe Device, N.Y. Times, June 20, 2010, at A1 (noting unfortunate "decision years before to outfit the Deepwater Horizon's blowout preventer with just one blind shear ram when other rigs were already beginning to use two").
264. See supra notes 50-54 and accompanying text.
265. See, e.g., James Glanz, Report Adds to Criticism of Halliburton's Iraq Role, N.Y. Times, March 29, 2006, at A8 (discussing two of Halliburton's controversial Iraqi oil contracts).
266. Criminal investigators will also review the conduct of Anadarko and Mitsui, the minority owners of the Macondo well. It does not appear, however, that either company was involved in decisions about how to conduct the drilling or was involved in the operation of the well. Absent evidence to the contrary, Anadarko and Mitsui will not be prosecuted criminally, although they are defendants in the Justice Department's civil suit and will face civil penalties under the Clean Water Act § 311, 33 U.S.C. § 1321 (2006), and liability as a responsible party under the Oil Pollution Act, 33 U.S.C. §§ 2701-2704.
267. It is unlikely the Gulf oil spill will have a similar galvanizing effect on environmental law. The Clean Water Act Amendments of 1972 were in major part a response to the Cuyahoga River and Santa Barbara incidents; the tragedies of Love Canal and Times Beach helped spur the Superfund law (i.e., CERCLA) in 1980; and the Exxon Valdez brought the Oil Pollution Act of 1990 (and with it enhanced civil penalties of $1,100 to $4,300 per barrel for oil spill cases). The House of Representatives passed legislation in response to the Gulf oil spill in July 2010, but the Senate never took action on the bill, and its prospects are dim. For a discussion of the roles of the Cuyahoga River, the Santa Barbara oil spill, and Love Canal in the modern environmental law movement
268. see Richard J. Lazarus, The Making of Environmental Law (2004).
269. See generally Uhlmann, supra note 113, at 1224, 1228.
270. In 1982, the Justice Department established an Environmental Crimes Unit in the Environmental Enforcement Section of the Lands and Natural Resources Division. Env't & Natural Res. Div., U.S. Dep't of Justice, Public Lands and Natural Treasures: The First 100 Years of the Environment & Natural Resources Division 1909-2009, at 57-58 (2009). In 1987, the Environmental Crimes Unit became the Environmental Crimes Section.
271. See David M. Uhlmann, Strange Bedfellows, Envtl. F., May/June 2008, at 40, 44.
272. See Russell Mokhiber, Top 100 Corporate Criminals of the Decade, Corporate Crime Reporter, http://www.corporatecrimereporter.com/top100.html (last visited Mar. 4, 2011).
273. See supra note 122 and accompanying text.
274. See Ian Urbina, BP Settlements Likely to Shield Top Defendants, N.Y. Times, Aug. 20, 2010, at A1.
275. As noted above, the largest fine for corporate crime in the United States was $1.3 billion, which Pfizer paid in 2009.
276. See Harris, supra note 29.
277. Alternative Fines Act, 18 U.S.C. § 3571 (2006).
278. Under federal sentencing law, the maximum sentence for organizational defendants is the greater of (1) the amount set forth in the statute of conviction; (2) $500,000 per felony count or $200,000 per misdemeanor count; or (3) twice the loss or gain associated with the offense.
279. The maximum criminal penalty under the Clean Water Act is $50,000 per day for a felony violation, Clean Water Act § 309(c)(2), 33 U.S.C. § 1319(c)(2) (2006), and $25,000 per day for a misdemeanor violation, 33 U.S.C. § 1319(c)(1). For a spill that lasted 100 days, the per diem fines under the Clean Water Act provide a maximum penalty of $5 million for felony violations and $2.5 million for misdemeanor violations, far less than twice the losses associated with the oil spill. Likewise, if each day of the 100-day oil spill were charged separately, the maximum fine based on the per count amounts provided by federal sentencing law would be $50 million for felony violations and $20 million for misdemeanor violations-still far less than the multi-billion-dollar fine authorized under the loss doubling provisions of the Alternative Fines Act. Compare 18 U.S.C. § 3571(c)(3) (setting maximum fine of $500,000 for an organizational defendant convicted of a felony violation)
280. § 3571(c)(4) (setting maximum fine of $500,000 for an organizational defendant convicted of a misdemeanor violation resulting in death), and id. § 3571(c)(5) (setting a maximum fine of $250,000 for an organizational defendant convicted of a Class A misdemeanor), with id. § 3571(d)
281. (setting maximum fine of twice the gross pecuniary gain or gross pecuniary loss associated with an offense).
282. A multi-billion-dollar criminal fine will be just one component of BP's sentence. The sentence is also likely to include restitution and community service projects that will supplement the natural resource damage claims paid in the civil suit. As a result, the total criminal sentence-a combination of fines, restitution, and restoration projects-may reach into the tens of billions of dollars.
283. See infra notes 239-240 and accompanying text.
284. BP was the fourth-largest company in the world during 2010, according to Fortune Magazine.
285. See Fortune Global 500: World's Largest Corporations 1-100, Fortune, July 26, 2010, at F-1, available at http://money.cnn.com/magazines/fortune/global500/2010/.
286. Exxon Shipping Co. and Exxon Corp., No. 90-CR-00015 (D. Alaska 1991).
287. Rockwell Int'l Corp., No. 1:92-CR-00107, (D. Colo. 1992).
288. Int'l Paper Co., No. 1:91-CR-00051, (D. Me. 1991).
289. United States v. Royal Caribbean Cruises Ltd., 11 F. Supp. 2d 1358 (S.D. Fla. 1998).
290. Koch Petroleum Group, LP, No. 2:00-CR-00325 (S.D. Tex. 2001).
291. Tyson Foods, Inc., No. 03-CR-00203 (W.D. Mo. 2003).
292. W.R. Grace & Co., No. 05-CR-0007 (D. Mont. 2009) (acquittal).
293. Citgo Petroleum Corp., No. 2:06-CR-00563 (S.D. Tex.) (not yet sentenced).
294. See Press Release, Nat'l Comm'n on the BP Deepwater Horizon Oil Spill & Offshore Drilling, Co-Chairman Bob Graham's Opening Statement from Nov. 9 Hearing (Nov. 9, 2010)
295. ("The problem here is that there was a culture that did not promote safety and that culture failed.");
296. Press Release, Nat'l Comm'n on the BP Deepwater Horizon Oil Spill & Offshore Drilling, Co-Chairman William K. Reilly's Opening Statement from Nov. 9 Hearing (Nov. 9, 2010) ("BP hasbeen notoriously challenged on matters of process safety.")
297. See generally Nat'l Acads., supra note 50.
298. BP has a long history of a troubled corporate culture. Confidential investigations into BP's Alaskan oil operations identified instances in which management tolerated aging equipment of questionable safety, induced employees not to report problems, and shortened or put off inspections to cut production costs.
299. Abrahm Lustgarten & Ryan Knutson, Reports at BP over years find history of problems, Wash. Post, June 8, 2010, at A01.
300. A 2001 report revealed that BP had neglected emergency shutdown equipment, including valves and detectors like those that could have thwarted the Deepwater Horizon accident.
301. Another report, from 2004, found that potential whistleblowers were being systematically intimidated. The 200,000-gallon Prudhoe Bay pipeline spill of 2006-the largest ever on Alaska's North Slope-occurred under this troubled culture. During the same period, similar problems surfaced at BP facilities in California and Texas.
302. See supra notes 99-100 and accompanying text.
303. Complaint of the United States of America at 47-56, United States v. BP Exploration & Prod. Inc., 2:10-cv-04536-CJB-SS (E.D. La. Dec. 15, 2010) (alleging violations of 30 C.F.R. § 250).
304. Outer Continental Shelf Lands Act § 24(c), 43 U.S.C. § 1350(c) (2006).
305. See supra notes 109-110 and accompanying text.
306. Dickinson, supra note 51, at 56.
307. Bryan v. United States, 524 U.S. 184, 193 (1998).
308. Uhlmann, supra note 113, at 1248-49.
309. See generally Stuart P. Green, Lying, Cheating, and Stealing: A Moral Theory of White-Collar Crime (2006).
310. In addition, news reports have indicated that the Criminal Division of the Justice Department is investigating whether corporate officials understated the amount of oil spilled in an effort to bolster stock prices or engaged in insider training.
311. See, e.g., Hammer, supra note 26.
312. If fraud charges result, the case would be more typical of corporate crime cases generally. Clean Air Act § 113(c)(4), 42 U.S.C. § 7413(c)(4) (2006).
313. Resource Conservation and Recovery Act of 1976 § 3008(d), 42 U.S.C. § 6928(d) (2006).
314. 42 U.S.C. § 7413(c)(1).
315. E.g., 33 U.S.C. § 1319(c)(4) (2006) (Clean Water Act); 42 U.S.C. § 6928(d)(3) (Resource Conservation and Recovery Act of 1976); 42 U.S.C. § 7413(c)(2) (Clean Air Act). Another example is the Superfund law, which makes it a crime to fail to report the release of a reportable quantity of a hazardous substance into the environment as soon as the defendant knows of the release.
316. 42 U.S.C. § 9603. If the defendant did not know about the release, even if the defendant were negligent in failing to learn about the release, there would be no crime.
317. 427 F.3d 1278, 1280, 1283 (10th Cir. 2005). The other case is United States v. Hanousek, 176 F.3d 1116, 1121-22 (9th Cir. 1999).
318. When Mr. Ortiz continued his unpermitted discharges even after he had been told by inspectors that his discharges were entering the Colorado River through the sewer system, he was charged with felonies.
319. See Ortiz, 427 F.3d at 1281.
320. Steven P. Solow & Ronald A. Sarachan, Criminal Negligence Prosecutions Under the Federal Clean Water Act: A Statistical Analysis and an Evaluation of the Impact of Hanousek and Hong, 32 Envtl. L. Rep. 11,153, 11,155-59 (2002).
321. Id. at 11,158-59.
322. The study also found that, as the environmental crimes program matured, there may be a trend toward less frequent use of "pure" negligence charges.
323. Id. at 11,157.
324. Most misdemeanor cases under the environmental laws involve wildlife crime, since most criminal provisions of the wildlife protection statutes are limited to misdemeanors. A notable exception is the Lacey Act, which makes it a felony to knowingly sell or knowingly purchase protected fish, wildlife, or plants. Lacey Act § 4(d), 16 U.S.C. § 3373(d) (2006). Another less frequently utilized felony provision of the wildlife laws is the Migratory Bird Treaty Act provision prohibiting the sale of migratory birds. Migratory Bird Treaty Act § 6, 16 U.S.C. § 707(b) (2006).
325. 18 U.S.C. § 1115 (2006).
326. See supra notes 25-26 and accompanying text.
327. Uhlmann, Crimes on the Gulf, supra note 114, at 32.
328. Under the Migratory Bird Treaty Act, the unauthorized taking of migratory birds is a strict liability misdemeanor, which allows prosecutors to charge responsible corporate officials without evidence that they knew about the violations or acted negligently in their supervision of the activity that resulted in the unauthorized taking.
329. See 16 U.S.C. §§ 703, 706. Historically, the Justice Department has not prosecuted pollution cases under strict liability theories absent negligence.
330. See Uhlmann, Crimes on the Gulf, supra note 114, at 31.
331. It therefore is unlikely that the government would charge corporate officials with Migratory Bird Treaty Act violations in the Gulf oil spill unless the individuals involved acted negligently.
332. Uhlmann, Crimes on the Gulf, supra note 114, at 32
333. Uhlmann, Prosecuting Crimes Against the Earth, supra note 114.
334. National Commission Report, supra note 36, at 89-127.
335. Uhlmann, supra note 166, at 42.
336. See, e.g., United States v. Jho, 534 F.3d 398 (5th Cir. 2008). Mr. Kun Yun Jho was the chief engineer on a ship that transferred bulk petroleum from offshore tankers to ports along the Gulf of Mexico. He was responsible for engine department operations and for maintaining the ship's oil-record log.
337. Id. at 400.
338. See id. at 401.
339. See supra note 139 and accompanying text.
340. See generally United States v. Sinskey, 119 F.3d 712, 718-19 (8th Cir. 1997) (stating that aiding and abetting liability defendant must participate in unlawful activity).
341. Address to the Nation on the Oil Spill in the Gulf of Mexico, 2010 Daily Comp. Pres. Doc. 502 (June 15, 2010) (statement of President Obama) ("Already, this oil spill is the worst environmental disaster America has ever faced."); Gulf of Mexico oil leak 'worst US environment disaster', BBC News (May 30, 2010, 4:49 PM), http://www.bbc.co.uk/news/10194335 (statement of White House energy advisor Carol M. Browner to NBC's Meet The Press) ("More oil is leaking in the Gulf of Mexico than at any other time in our history. It means there is more oil than the Exxon Valdez (in Alaska in 1989).").
342. See, e.g., Emery Worldwide Airlines, Inc., No. 3:03-CR-00113 (S.D. Ohio 2003); Motiva Enterprises, LLC, No. 1:05-CR-00021 (D. Del. 2005).
343. Uhlmann, supra note 113, at 1247.
344. See Susan F. Mandiberg, Locating the Environmental Harm in Environmental Crimes, 2009 Utah L. Rev. 1177, 1178 (2009) ("[F]ew [environmental crimes] contain a 'result' element, and none require[] the government to prove the result of environmental harm.").
345. See, e.g., Resource Conservation and Recovery Act of 1976 § 3008(e), 42 U.S.C.
346. § 6928(e) (2006) (providing enhanced penalties for RCRA violations when the defendant knows "he thereby places another person in imminent danger of death or serious bodily injury"). As Susan Mandiberg notes, endangerment provisions appear to address environmental harm but they may also apply where harm to the environment is merely risked.
347. Mandiberg, supra note 215, at 1192.
348. Uhlmann, supra note 113, at 1246 n.114
349. see also Mandiberg, supra note 215, at 1201-03 (noting the difficulty of defining environmental harm, assessing the extent of environmental damage, and resolving potential "'battle[s] of the experts'").
350. Uhlmann, supra note 113, at 1249 (stating that fair and effective administration of the environmental laws cannot happen without complete and accurate information from the regulatory community).
351. (stating that companies that operate outside the regulatory system should not be allowed to have a competitive advantage over companies that make the necessary financial commitment to compliance).
352. To the extent that the public perceives the Gulf oil spill as epitomizing environmental crime, it may become more difficult to prosecute other environmental crimes. If judges and juries come to expect a correlation between environmental crime and environmental harm, prosecution could be more difficult in cases where there is no evidence of readily provable environmental harm. On the other hand, if the Gulf oil spill were not prosecuted, defense attorneys might argue that other environmental crimes should not be prosecuted because the harm was worse in the Gulf oil spill.
353. See, e.g., Clean Water Act § 101(a), 33 U.S.C. § 1251(a) (2006) ("The objective of this chapter is to restore and maintain the chemical, physical, and biological integrity of the Nation's waters."); Resource Conservation and Recovery Act of 1976 § 1003(a), 42 U.S.C. § 6902(a) ("The objectives of this chapter are to promote the protection of health and the environment."); Clean Air Act § 101(b), 42 U.S.C. § 7401(b) (2006) (including as a goal the "protect[ion] and enhance[ment] [of air] quality. so as to promote the public health and welfare").
354. See, e.g., 33 U.S.C. § 1319(a)-(c) (authorizing administrative, civil, or criminal enforcement for violations of the Clean Water Act).
355. See Raymond W. Mushal, Up from the Sewers: A Perspective on the Evolution of the Federal Environmental Crimes Program, 2009 Utah L. Rev. 1103, 1105 n.8 (2009) (referring to criminal enforcement as a "gorilla in the closet").
356. Uhlmann, supra note 113, at 1230.
357. See R.A. Duff, Towards a Theory of Criminal Law?, 84 Proc. Aristotelian Soc'y Supplementary Volume 1, 23-24 (2010) (including "various kinds of pollution" in a listing of "wrongs of endangerment" that "we have good reason to criminalize").
358. See, e.g., Moore, The moral worth of retribution, in Responsibility, Character, and the Emotions: New Essays in Moral Psychology 179, 179 (Ferdinand Schoeman ed., 1987) ("Retributivism is the view that punishment is justified by the moral culpability of those who receive it. A retributivist punishes because, and only because, the offender deserves it.").
359. The Model Penal Code has been described as an effort to incorporate the strengths of a utilitarian theory, a deterrence theory, and a retributive theory.
360. See Gerald Leonard, Towards a Legal History of American Criminal Theory: Culture and Doctrine from Blackstone to the Model Penal Code, 6 Buff. Crim. L. Rev. 691, 815-17 (2003).
361. See, e.g., H.L.A. Hart, Negligence, Mens Rea, and Criminal Responsibility, in Oxford Essays in Jurisprudence 29, 44-45 (A. G. Guest ed., 1961), reprinted in H.L.A. Hart, Punishment and Responsibility: Essays in the Philosophy of Law 136, 152 (2d ed. 2008)
362. see also John L. Diamond, The Myth of Morality and Fault in Criminal Law Doctrine, 34 Am. Crim. L. Rev. 111, 120-27 (1996).
363. Whether we should rethink the moral content of corporate negligence in the environmental context is a question that may warrant further inquiry but is beyond the scope of this Article.
364. See National Commission Report, supra note 36, at 91.
365. See The Valdez Oil Spill, ExxonMobil, http://www.exxonmobil.com/Corporate/about_issues_valdez.aspx (last visited Mar. 4, 2011) ("In the aftermath of the Exxon Valdez accident, ExxonMobil redoubled its long-time commitment to safeguard the environment, employees and operating communities. In the event a spill occurs, we also have improved our response capability.").
366. The Clean Water Act provides for civil fines up to $1,100 per barrel-nearly $5 billion-and up to $4,300 per barrel-possibly as much as $20 billion-for any companies that were grossly negligent. Adjustment of Civil Monetary Penalties for Inflation, 69 Fed. Reg. 7124, 7125 tbl.1 (Feb. 13, 2004).
367. Graeme Wearden, BP oil spill costs to hit $40 bn, Guardian, Nov. 2, 2010, http://www.guardian.co.uk/business/2010/nov/02/bp-oil-spill-costs-40-billion-dollars
368. see also Julia Werdigier, BP's Profit Declines On Oil Spill Charges, N.Y. Times, Nov. 3, 2010, at B3.
369. Clean Water Act § 309(c)(1), 33 U.S.C. § 1319(c)(1) (2006) ("[a]ny person who. negligently violates section. 1321(b)(3)").
370. 33 U.S.C. § 1321(b)(7)(A) ("[a]ny person who is the owner, operator, or person in charge of any vessel. or offshore facility from which oil. is discharged in violation of paragraph (3)" (emphasis added)).
371. Roger Parloff, BP is not alone in Gulf exposure, CNNMoney.com (June 11, 2010, 12:10 PM). http://money.cnn.com/2010/06/11/news/companies/Parloff_legal_BP.fortune/index.htm ("Both Halliburton. and Transocean. have claimed in SEC filings or in congressional testimony that they have broad indemnification agreements with BP that will leave BP holding the bag for virtually all the spill costs.").
372. 33 U.S.C. § 1368(a) (prohibiting federal contracting with any person convicted under the Clean Water Act "until the [EPA] Administrator certifies that the condition giving rise to such conviction has been corrected").
373. Ron Nixon, Size Protects Government Contractors That Stray, N.Y. Times, Dec. 18, 2010, at A12.
374. See Oil Pollution Act § 1004(a)(3), 33 U.S.C. § 2704(a)(3) (2006) (seventy-five-milliondollar liability limit); 33 U.S.C. § 2701(32)(C) (definition of responsible party for offshore facilities).
375. See id. § 2704(c)(1)(A) (exception to limits on liability if incident proximately caused by gross negligence, willful misconduct, or violation of a federal safety regulation or operating regulation by a responsible party).
376. See Joel Feinberg, The Expressive Function of Punishment, 49 Monist 397 (1965), reprinted in Joel Feinberg, Doing and Deserving: Essays in the Theory of Responsibility 95, 95-118 (1970).
377. See Dan M. Kahan, What Do Alternative Sanctions Mean?, 63 U. Chi. L. Rev. 591, 595-97 (1996).
378. For example, Kahan argues that expressive theory accounts for the public rejection of alternative sanctions, which neither a retributive theory nor a deterrence theory can otherwise explain.
379. Id. at 605-30.
380. Kahan notes, however, that many scholars either disregard expressive theory entirely or view it as a restatement of retributive or deterrent accounts.
381. Id. at 595-97.
382. John L. Diamond, The Crisis in the Ideology of Crime, 31 Ind. L. Rev. 291, 311 (1998).
383. Notably, Diamond also expressed concern that "what is criminally wrong and right must be something more than what is merely civilly wrong and right."
384. Id. at 309.
385. But see V.S. Khanna, Corporate Criminal Liability: What Purpose Does It Serve?, 109 Harv. L. Rev. 1477, 1508-09 (1996) (questioning whether corporate reputational loss from criminal penalties is greater than when comparable civil penalties are imposed).
386. Kahan, supra note 242, at 598.
387. The presidential commission on the Gulf oil spill reached a similar conclusion, arguing that another spill was "inevitable" absent both improved industry practices and enhanced regulation.
388. John M. Broder, Tougher Rules Urged For Offshore Drilling, N.Y. Times, Jan. 12, 2011, at A12.
389. Tom Bergin, Shell Urges U.S. to adopt North Sea drilling rules, Reuters, Oct. 14, 2010, available at http://www.reuters.com/article/2010/10/14/us-shell-safety-idUSTRE69D3YV20101014;
390. Robbie Brown, Another rig's close call altered rules, papers say, N.Y. Times, Aug. 17, 2010, at A19.
391. See Russell Gold & Ben Casselman, Far Offshore, a Rash of Close Calls, Wall St. J., Dec. 9, 2010, at A1.
392. See, e.g., Kadish, Foreword: The Criminal Law and the Luck of the Draw, 84 J. Crim. L. & Criminology 679 (1994)
393. Stephen J. Schulhofer, Harm and Punishment: A Critique of Emphasis on the Results of Conduct in the Criminal Law, 122 U. Pa. L. Rev. 1497, 1539-44 (1974).
394. See Schulhofer, supra note 249, at 1539-41.
395. See Ronald J. Allen, Retribution in a Modern Penal Law: The Principle of Aggravated Harm, 25 Buff. L. Rev 1, 19 (1975).
396. Schulhofer, supra note 249, at 1542.
397. Uhlmann, supra note 113, at 1242.
398. See id. at 1235-39.
399. See, e.g., United States v. Hopkins, 53 F.3d 533, 537-40 (2d Cir. 1995) (Clean Water Act)
400. United States v. Buckley, 934 F.2d 84, 88-89 (6th Cir. 1991) (Clean Air Act and CERCLA)
401. United States v. Hoflin, 880 F.2d 1033, 1036-37 (9th Cir. 1989) (Resource Conservation and Recovery Act of 1976).
402. But see United States v. Johnson & Towers, Inc., 741 F.2d 662, 669 (3d Cir. 1984) (requiring knowledge that a permit was required in criminal prosecution for Resource Conservation and Recovery Act hazardous waste violations).
403. By requiring knowledge of the facts, rather than knowledge of illegality, courts have imposed a duty on corporations to know their obligations under the environmental laws and have thus avoided the perverse incentives that might arise if ignorance of those obligations provided a defense in criminal prosecutions under the environmental laws.
404. See Uhlmann, supra note 113, at 1235-39.
405. The most notable exceptions are criminal tax violations.
406. See, e.g., John C. Coffee, Jr., Does "Unlawful" Mean "Criminal"?: Reflections on the Disappearing Tort/Crime Distinction in American Law, 71 B.U. L. Rev. 193, 217 (1991).
407. See Uhlmann, supra note 113, at 1252.
408. See id. at 1248-49.
409. See supra note 140 and accompanying text
410. See, e.g., People v. Decina, 138 N.E.2d 799, 803 (N.Y. 1956).
411. See generally Susan J. LaBine & Gary LaBine, Determinations of Negligence and the Hindsight Bias, 20 Law & Hum. Behav. 501 (1996)
412. Philip G. Peters, Jr., Hindsight Bias and Tort Liability: Avoiding Premature Conclusions, 31 Ariz. St. L.J. 1277 (1999)
413. Jeffrey J. Rachlinski, A Positive Psychological Theory of Judging in Hindsight, 65 U. Chi. L. Rev. 571 (1998) (exploring hindsight bias and discussing how laws, such as tort rules, address it).
414. In United States v. Hanousek, 176 F.3d 1116 (9th Cir. 1999), the defendant argued that a criminal negligence standard should be required under the Clean Water Act, but his position was rejected by the Ninth Circuit.
415. Id. at 1120-21.
416. Under the Model Penal Code, a person acts with criminal negligence when she "should be aware of a substantial and unjustifiable risk that. will result from [her] conduct." Model Penal Code § 2.02(2)(d) (1962).
417. See supra note 133 and accompanying text.
418. See Clean Water Act § 311(b)(7)(A), 33 U.S.C. § 1321(b)(7)(A) (2006) (strict liability civil penalties); 33 U.S.C. § 1319(c)(1) (negligent misdemeanor criminal penalties)
419. § 1321(b)(7)(D) (gross negligence civil penalties); id. § 1319(c)(2) (knowing felony criminal penalties).
420. Compare Richard J. Lazarus, Meeting the Demands of Integration in the Evolution of Environmental Law: Reforming Environmental Criminal Law, 83 Geo. L.J. 2407, 2487 (1995) (expressing concern about the amount of discretion delegated to prosecutors)
421. with Kathleen F. Brickey, The Rhetoric of Environmental Crime: Culpability, Discretion, and Structural Reform, 84 Iowa L. Rev. 115, 127-29 (1998) (arguing that broad discretion is a fundamental aspect of all criminal enforcement programs).
422. Uhlmann, supra note 113, at 1226, 1246-52.
423. As noted in Part III, the Gulf oil spill could also involve false statements or concealment if evidence shows that corporate officials misled MMS about conditions at the well or the amount of oil gushing from the well. False statements and obstruction of justice fall well within the heartland of environmental criminal prosecution. For the purposes of this discussion, however, our focus is on the spill itself, without regard to whether any violations were exacerbated by false or misleading conduct.
424. See Memorandum from Earl E. Devaney, Dir., Office of Criminal Enforcement, Envtl. Prot. Agency, to all EPA Employees Working in or in Support of the Criminal Enforcement Program (Jan. 12, 1994), available at http://www.epa.gov/compliance/resources/policies/criminal/exercise.pdf.
425. See U.S. Dep't of Justice, supra note 155, at tit. 9, ch. 28.
426. The Justice Department's corporate prosecution policy lists environmental crimes as an example of crime that may raise a substantial risk of harm to the public and may therefore warrant criminal prosecution.
427. Id. at tit. 9, ch. 28.200(B).
428. The policy also identifies "the nature and seriousness of the offense, including the risk of harm to the public," as the first factor to be considered in determining whether to pursue criminal charges.
429. Id. at tit. 9, ch. 28.300.
430. Under Section 2Q1.2(b)(1)(A) of the federal sentencing guidelines, the recommended sentence is increased if there is a discharge into the environment, and the amount of the increase is adjusted upward or downward depending partly upon the harm that occurs. U.S. Sentencing Guidelines Manual § 2Q1.2 cmt. 5 (2010). The guidelines also call for a longer sentence if the violation results in substantial cleanup costs.
431. Id. § 2Q1.2(b)(3).
432. See, e.g., Coffee, supra note 258, at 217 (identifying knowing commissions of environmental crimes such as willful endangerment as "serious offenses that do not merit leniency").
433. See Uhlmann, supra note 113, at 1247.
434. Id. at 1247-48.
435. Uhlmann, Prosecuting Crimes Against the Earth, supra note 114.
436. See Allen, supra note 251, at 3
437. Schulhofer, supra note 249, at 1510-11 ("[M]ost American jurisdictions exclude retaliation from the legitimate goals of the criminal law, and legal theorists are virtually unanimous in applauding the judgment.").
438. As noted in Part II, the Migratory Bird Treaty Act contains strict liability criminal provisions.
439. The Justice Department usually does not prosecute those crimes absent proof of negligence.
440. See supra note 148.