New Orleans – It was the largest marine oil disaster in the United States, and now BP's trial is the largest and most complex environmental lawsuit in US history.
In what is being called by many “The Trial of the Century”, a thousand plaintiffs, a multitude of witnesses, and at least 20,000 exhibits will converge at a US district court in New Orleans, Louisiana, on March 5 for litigation surrounding BP's oil disaster that began on April 20, 2010, when the Deepwater Horizon oil rig exploded in the Gulf of Mexico.
The disaster caused at least 4.9 million barrels of oil to gush into the Gulf, a situation that was compounded by at least 1.9 million gallons of toxic Corexit dispersants used to sink the oil.
Louisiana's fishing and shrimping industries continue to suffer, large numbers of Gulf residents suffer health problems they blame on BP's chemicals, and tar balls and destroyed marsh lands persist across much of the affected areas of the Gulf Coast.
US President Barack Obama, two months after the blowout, referred to it as “the worst environmental disaster America has ever faced”.
The first of this three-phase trial will focus on litigation around the Clean Water Act and Oil Spill Pollution Act, in order to determine BP's liability, and whether the oil giant's behaviour around the accident was grossly or criminally negligent.
This initial litigation, however, does not involve the National Resources Damage Assessment (NRDA), a legal process to determine the type and amount of restoration needed to compensate the public for harm to natural resources and their human uses that occurred as a result of BP's oil disaster.
“This assessment is not completed yet,” Cyn Sarthough, the executive director of the Gulf Restoration Network (GRN), told Al Jazeera. “We're interested in this first phase of the trial because, if BP is not found criminally or grossly negligent, we don't get 80 per cent of the funds we will use for coastal restoration that we are hoping for.”
Tens of billions of dollars are at stake, in the trial that will determine the proportion of fault among the defendant companies, as well as determining the extent of penalties and damages, which will be worked out in a bench trial (without a jury) by federal district court judge Carl Barbier.
But groups such as GRN, along with countless Gulf Coast residents and fishermen, are wondering if the trial will be sufficient to bring the oil giant to justice, and how much longer the effects of the oil disaster will persist.
While on a coastal field inspection with Jonathan Henderson, the Coastal Resiliency Organiser for GRN, Al Jazeera happened upon a BP cleanup crew leaving the beach at Elmer's Island Wildlife Refuge on the Louisiana coast.
GRN, active in all five states along the Gulf of Mexico, sues companies and government organisations that violate environmental laws.
“We are concerned about the fact that, while it may be possible to assess damages to the marshes and beaches, we don't have the capability to do this on the seafloor, nor [measure] the long-term damage,” Henderson, who has been monitoring BP's activities in this area for months, told Al Jazeera. “So how accurate can the NRDA be?”
Clearly, with more oil continuing to be found and excavated, similar to that witnessed by Al Jazeera on Elmer's Island and in other coastal areas in Louisiana in previous months, determining BP's total damages seems a monumental task.
“Much of our litigation is against the Bureau of Ocean Energy Management Regulation and Enforcement (BOEMRE), the group that was formerly the Minerals Management Service (MMS),” Sarthough told Al Jazeera. “There is also a challenge to BP's original oil spill response plan. We are engaged in this with several other claimants … [The plan BP] had in place was inappropriate and failed to meet safety requirements because it grossly exaggerated BP's response capabilities.”
The most prominent defendant is obviously BP, but also involved are Transocean, the company that owned the Deepwater Horizon rig; Halliburton, which poured the cement lining of the well; and Nalco, the company that manufactures the dispersants that are alleged to have sickened coastal residents and cleanup workers and damaged the environment.
BP has already actively attempted to shift as much of the blame as it can to the other companies involved, a move that has been reciprocated.
“There's only one path for BP to take – blame it on as many other people as possible and make sure it's not cast as gross negligence,” Blaine LeCesne, a law professor at Loyola University in New Orleans, who has been following the case closely, previously told reporters. “That way they may be able to limit their cost to $30 or $40bn as opposed to $100bn.”
A study carried out by experts at Auburn University concluded that mats of oil that remain submerged on the seabed could pose a long-term risk to coastal ecosystems.
Large quantities of tar balls and oil mats have washed ashore, or have been uncovered by storms, at Orange Beach and Gulf Shores, Alabama, as well as at several beaches in Louisiana and in Pensacola, Florida.
A recent Al Jazeera fly-over of the area near BP's capped Macondo well, the origin of the April 2010 disaster, revealed a long swathe of oil and sheen.
Dr Wilma Subra, a chemist and MacArthur Fellow, has – since autumn 2010 – been conducting tests on seafood and sediment samples along the Gulf, for chemicals present in BP's crude oil and toxic dispersants.
“Tests have shown significant levels of oil pollution in oysters and crabs along the Louisiana coastline,” Subra told Al Jazeera. “We have also found high levels of hydrocarbons in the soil and vegetation.”
The possibility of a settlement remains, as BP, plaintiffs, and the US government could technically still manage to avoid the trial if a settlement were reached.
“We are prepared to settle if we can do so on fair and reasonable terms, but equally, if this is not possible, we are preparing vigorously for trial,” BP Chief Executive Bob Dudley told reporters.
That settlement would likely come in at a record $20 to $25bn, according to a recent estimate provided by Morgan Stanley. BP has reportedly set aside a provisional $12bn for penalties.
Even if a settlement were reached, BP would still have to deal with thousands of claims from fishermen, coastal businesses, state and local governments, and others able to prove they suffered economic or health damages from the disaster.
On June 1, 2010, BP board chairman Henric Svanberg announced, in accordance with the company's pledge to provide $20bn in compensation to persons harmed by the disaster: “I hear comments sometimes that large oil companies are greedy companies or don't care, but that is not the case in BP. We care about the small people.”
According to New Orleans attorney Stuart Smith, however, neither oil companies nor the US government properly tends to citizens who suffer as a result of their policies.
“I've spent 25 years suing the oil and gas industry, and the government has never been on the side of the people,” Smith informed Al Jazeera. “But the extent to which they've behaved that way this time is unbelievable.”
Over the course of his career, Smith has represented a number of chemical plant employees with a condition known as toxic encephalopathy, a degenerative neurological disorder that can result in permanent brain damage. Caused by exposure to toxic substances, symptoms of the condition include memory loss, concentration difficulties, fatigue, seizures, depression, light-headedness, headaches and nausea. Similar symptoms continue to be experienced by residents of the Gulf Coast.
Indeed, since July 2010, Al Jazeera has spoken with scores of Gulf residents, fishermen, and clean-up workers who have blamed negative health effects on the chemicals from BP's oil and dispersants.
“The government knew about … peer-reviewed studies of what happens when people are exposed to these chemicals, and millions have been exposed,” Smith stated. “Peer-reviewed scientific literature shows that you'll have these health problems, and yet the government does nothing.”
When asked what he felt true justice for the plaintiffs should look like as the result of this trial, Smith was frank:
“BP will be found grossly negligent.”
Al Jazeera found tar balls and dead marine life along the beaches of Grand Isle State Park, in Grand Isle, Louisiana, which shows that the extent of environmental damages caused by the disaster continues to grow, despite clean-up efforts by the oil giant.
A biological study published on September 26, 2011, in the Proceedings of the National Academy of Sciences shows that effects of the oil on the killifish of Louisiana marshes could be an early warning sign of trouble ahead for fish populations.
“The message that seafood is safe to eat doesn't necessarily mean that the animals are out of the woods,” said Andrew Whitehead, an assistant professor of biology at Louisiana State University. He was a lead researcher in the study, which found that the fish were being exposed to oil in the sediment.
The study indicates that the same kinds of health and reproduction problems are likely to occur in the Gulf as were witnessed among herring, salmon, and other animal populations in the aftermath of the 1989 Exxon Valdez oil disaster, which prompted significant losses among various species.
Doug Inkley, a senior scientist with the National Wildlife Federation, said in a written statement: “This study is alarming because similar health effects seen in fish, sea otters, and harlequin ducks following the Exxon Valdez spill in Alaska were predictive of population impacts, from decline to outright collapse.”
BP's liability from a human perspective apparently fares little better.
The Gulf Coast-based law firm Brent Coon and Associates (BCA) is considered one of the world's foremost experts on BP, and has successfully sued the oil giant in the past.
Brent Coon was the lead attorney in a case against BP for a 2005 explosion at its refinery in Texas that killed 15 workers. His firm forced BP to accept full responsibility and to compensate the victims and their families.
BCA now represents more than 5,000 claimants from BP's Gulf disaster and has been appointed by the Plaintiff's Steering Committee to head several key sub-committees relating to discovery.
“From what I've seen, after representing thousands of people who were made sick or died from petrochemical industry hazards over the years, companies like BP, Exxon, Citgo, Shell, and others do not mind killing people as the cost of doing business, even when it's their own employees. I've seen it time and time again,” he said.
Coon additionally argued that, “[u]nless you criminally prosecute these people and make them pay for their decisions, they do not have a sufficient deterrent for the way they do business. Unless the government steps in and criminally prosecutes these b*****ds and hold them accountable, nothing is going to change”.
According to Coon's calculations, BP will be forced to pay out another $10-20bn to cover economic claims. Some experts expect the total could be much more than that, even as high as $30bn.
In a recent move in the oil spill litigation, Judge Barbier ruled on February 22 that BP and Anadarko were responsible parties under the Oil Pollution Act of 1990 – and are therefore liable for civil penalties under the Clean Water Act for the undersea discharge of oil from the ill-fated Macondo well.
BP's “Macondo” well was ironically named after a fictional village in Gabriel Garcia Marquez's classic novel One Hundred Years of Solitude. In the book, the village was eventually destroyed by an apocalyptic storm and erased from history.