While the oil continues to gush into the Gulf, it is difficult to focus on the question of who is to blame, yet, it is something we must all consider. It is important not only to hold someone or something accountable, but also to learn from this event so we do not repeat it.
There are many layers involved in answering the question of who is to blame. One very thick layer requires pointing the finger at ourselves and the fact that our current way of life is dependent upon oil. This dependency drives the tireless search for and exploitation of oil reserves. It also brings a lot of money into play. Dependency and big money have a long history of causing misery on this planet. The moment of freedom from oil is not today. Until we wean ourselves off of oil, we will have dependency and money driving the bus.
We will continue to reward the oil companies for providing us with oil, so we need to look deeper at who is to blame for the Gulf disaster. No one disputes the fact that BP is at fault. BP is the company that contracted and directed the drilling of the well. As I had earlier predicted, we are learning about competent professionals on board the drilling rig who had voiced grave concerns about decisions being made by the BP officials on site. It would be easy then to lay blame on those officials for those decisions and a criminal investigation would certainly look there. From my experience investigating environmental crimes and especially from investigating BP, it is very likely that the BP “company men” on the rig were basing their ill-fated decisions upon corporate culture and, perhaps, even on the direct orders or with the knowledge of much higher-level company officials. If so, then those higher-level officials are to blame and that is where a criminal investigation would go.
However; I think we need to look even deeper to determine who is to blame. Environmental Protection Agency (EPA) criminal investigations into the 2006 BP pipe rupture on the North Slope and the 2005 BP refinery explosion (which also killed workers) in Texas City uncovered a “criminal corporate culture” existing in BP. This corporate culture encouraged cost cutting at the expense of worker safety and environmental concerns. We are brought back to blaming the criminal corporate culture for this current loss of life and environmental catastrophe in the Gulf of Mexico. Apparently and unfortunately, the criminal corporate culture found in BP in those two previous criminal investigations was not influenced to change for the better by the criminal convictions against BP. Why not? Well, the answer to that question lies in the fact that the US Department of Justice (DOJ) decided that terminating the investigations and settling with BP in exchange for corporate guilty pleas was adequate deterrence. What this meant for BP was that the corporation had to pay $20 million and $50 million respectively in criminal fines. For many companies, these sums would be sufficient to get the attention of the company and its board of directors, thus perhaps altering the corporate culture to a less criminal one. For BP though, these amounts are downright paltry and, as we are seeing, had no significant impact on the corporate culture.
Corporations do not make decisions. Individuals within corporations make decisions and individuals influence corporate culture. In the Alaska and Texas cases resolved by the DOJ, the DOJ worked it out so the investigators were not able to pursue the investigations to the point of determining whether or not criminal charges could be brought against individuals within the corporate structure. Had the investigations been able to continue, perhaps we would have seen senior corporate officers charged and possibly convicted for their participation in the criminal decisions resulting in the explosion of the refinery and the rupture of the pipe. If individuals had been charged and/or had the corporation been forced to pay criminal fines much more in line with their corporate wealth and earnings, then it is reasonable to assume that there would have been a subsequent change in BP’s corporate culture to one of not accepting criminal decisions.
This leads me to blame the DOJ for the devastation in the Gulf of Mexico. However, just as corporations do not make decisions, individuals do, we have to recognize that the DOJ does not make decisions. Its officials make decisions. So, who in the DOJ is to blame for those earlier decisions?
In August 2007, I was informed by the DOJ about the settlement of the Alaska criminal investigation. To say I was surprised is a serious understatement. My reaction was one of disbelief and adamant demand for an answer. Karen Loeffler, who is now the United States attorney for the District of Alaska, was, at the time, the chief of the criminal division in that office. Loeffler took me into a private office and explained to me that she understood my frustration. She went on to tell me that the decision to shut down my investigation had been made by the then-Assistant Attorney General for the Environment and Natural Resources Division Ronald J. Tenpas. I had no reason then and have no reason today to doubt that she told me the truth.
I first went public with this revelation in late October 2008. When questioned by a reporter on what I had to say, Tenpas denied having made the decision, saying instead that the decision had been made in the Alaska US attorney’s office. Also at the time, then-US Attorney for the District of Alaska Nelson Cohen stated that Loeffler denied having told me it was Tenpas’ decision. Who to believe? To my knowledge, US Attorney Loeffler has not publicly addressed my account of our conversation. I would welcome hearing from her. I would also welcome sitting with her and Tenpas for a polygraph or, even better, for sworn testimony before a Congressional committee. Then we might hear the real answer to the question, “Who is to blame for the disaster in the Gulf?”
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