Tallahassee, Florida — In the immediate aftermath of the Deepwater Horizon disaster, BP publicly touted its expert oil clean-up response, but it quietly girded for a legal fight that could soon embroil hundreds of attorneys, span five states and last more than a decade.
BP swiftly signed up experts who otherwise would work for plaintiffs. It shopped for top-notch legal teams. It presented volunteers, fishermen and potential workers with waivers, hoping they would sign away some of their right to sue.
Recently, BP announced it would create a $20 billion victim-assistance fund, which could reduce court challenges.
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Robert J. McKee, an attorney with the Fort Lauderdale firm of Krupnick Campbell Malone, was surprised by how quickly BP hired scientists and laboratories specializing in the collection and analysis of air, sea, marsh and beach samples — evidence that’s crucial to proving damages in pollution cases.
Five days after the April 20 blowout, McKee said, he tried to hire a scientist who’s assisted him in an ongoing 16-year environmental lawsuit in Ecuador involving Dupont.
“It was too late. He’d already been hired by the other side,” McKee said. “If you aren’t fast enough, you get beat to the punch.”
At the same time it was bolstering its legal team, BP was downplaying how much oil was spewing from the Deepwater Horizon well — something that lawyers say is likely to be a critical factor in both court decisions and government fines.
“The rate we’re seeing today is considerably lower, considerably lower, than what was occurring when you saw the rig on fire,” BP America’s chief operating officer, Doug Suttles, told NBC Nightly News on April 25, three days after the Deepwater Horizon sank.
BP would stick to low estimates of how much oil was leaking — first, 1,000 barrels a day, then 5,000 barrels a day — until the Obama administration stepped in under congressional pressure nearly a month later and set up an independent commission of scientists to determine the flow.
In mid June, the so-called Flow Rate Technical Group said the well is gushing 35,000 to 60,000 barrels a day — but the delay and imprecision of that estimate will make how much oil escaped into the gulf a matter of debate for years.
In the early days after the spill, BP also included a liability waiver in the paperwork it gave fishermen and prospective workers. That prompted Florida Attorney General Bill McCollum, among other Gulf coast officials, to warn citizens: “Do not sign waivers.”
A BP spokesman said the company doesn’t comment on lawsuits and “won’t be giving running commentaries” on the number of court actions it’s facing.
In Florida, however, the company has hired Akerman Senterfitt, the state’s largest law firm and a major player in the state’s capital. It’s a strategy the company is likely to follow throughout the Gulf. When President Barack Obama met with BP executives last month to set up the $20 billion fund, BP was represented by Jamie Gorelick, who was deputy attorney general under President Bill Clinton.
The grounds for the suits and potential suits run the gamut: federal pollution and environmental laws, general maritime law, international treaties, public-nuisance codes and even state and federal racketeering laws.
Under the federal Oil Pollution Act, state and local governments can sue to collect lost tax revenues and the cost of increased governmental services as a result of a spill. That can include lost sales and hotel room taxes in tourist-dependent towns all across the Gulf coast.
So far, an estimated 250 court suits have been filed against BP, and more come each day. Florida Gov. Charlie Crist has tapped Steve Yerrid, one of the so-called “dream team” of lawyers that won Florida $11.3 billion in a landmark tobacco suit, to assemble a new legal crew to provide advice. Counties and cities are hiring lawyers as well.
Brian O’Neill, a lead attorney in the 1989 Exxon Valdez oil spill case, said the Gulf Coast states and residents should realize it will take years to clean the waters, the marshes and the beaches. Three years after the Alaska spill, salmon stocks started to return, he said, but the herring population was “exterminated” in Prince William Sound.
Exxon spent $2 billion and cleaned up just 8 percent of the oil, he said. And the oil never left.
“You’re going to have to wait years to figure out what happened and what is happening,” O’Neill said. “The oil goes where you don’t expect it. You will clean a beach and the oil will just come back in a few months or a year. The beaches could be oiled and oiled again.”
The fight against the oil company is likely to take decades.
“Exxon has shown you can stiff those you hurt and tie them up in court for 21 years and nothing bad happens to you,” he said. “You hope BP won’t do that.”
St. Petersburg crabber Howard Curd is expecting a long battle. His blue- and stone-crab fishing grounds in Tampa Bay were killed off when Hurricane Frances blew out a retaining wall at a phosphate pit that spewed acidic water into the bay.
The fertilizer company, Mosaic, persuaded a trial court and an appeals court that Curd and other fishermen couldn’t sue because they didn’t own the seafood that was potentially killed, so they weren’t technically damaged.
Finally, six years later, the state Supreme Court on June 17 reversed lower-court opinions and said Curd and other fishermen could sue. Curd now has to prove damages in court. The ruling in his favor arrived just in time for Florida’s 23,422 commercial and charter fishermen who could use the new ruling to press pollution claims against BP.
Curd said crabbing in the bay is bouncing back, but the BP spill is depressing seafood sales even though the oil is nowhere near the western coast of Florida.
He’s prepared to sue BP, but harbors no illusions about facing a big corporation in court.
“They’ve got all the money, and all the attorneys and all the experts on retainer. It really doesn’t cost them anything,” Curd said. “It’s like it’s cheaper to pay their attorneys and fight in court than paying the money to people they hurt and doing the right thing.”
Caputo reports for the Miami Herald.
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