Deep Water Horizon — A Murky State of Affairs

Yesterday, the administrator of the 20 Billion dollar Gulf Oil Spill Claims Fund, Ken Feinberg, was attending town hall meetings in Fort Walton Beach, Florida and will be addressing certain affected industries in Tampa, Florida.  He noted that over 70,000 people have filed for “quick claims” with the fund, an option that reportedly requires you to waive any future damages claims.  Since the experts appointed to assess the causes and consequences have found that the damages will be epidemic and on-going, one has to wonder at that sort of claim process.

On June 27^th, Co-Chairs of the National Commission on the BP Deepwater Horizon oil Spill and Offshore Drilling will be discussing their exclusive findings in Orlando, Florida.  Their comments on the report, which were released on January 11^th, have been made public as recently as yesterday.  In a recent interview, former Florida Governor Bob Graham stated that the oil spill “was not the product of some cosmic force. It was caused by human beings who made a series of bad decisions which were unnecessary.”  He also noted that while the industry has made huge strides in technology focused on getting oil out, they have never been concerned with making advances in dealing with any disasters that might occur.

Interestingly, Feinberg has not appeared to address the Commission’s report entitled “Deep Water, the Gulf Oil Diaster and the Future of Offshore Drilling.”  The report is large (over 350 pages) and has been available for over a week.  It sheds light on many topics of concern including:

a.) the causes of the disaster;

b.) the public consequence of what has largely been determined post-incident false reporting, and

c.) the need for greater regulatory oversight and scientific understanding of the potential impacts of the event.

A significant part of the report deals with the extent of the damage—a topic that many might assume is the fund’s domain.    Yet, as is implied by the commission’s report, the situation is far too complex for such a solution and far too vast for a fund to handle.  Unlike disasters of the past, the damage here was not actually caused by a single event; instead, it is as President Obama termed it, an “epidemic.”

If you are one of the many whose livelihood and/or life has been directly injured by the events, the jostling contradictions do nothing but add to your nauseating reality:  things are going to be worse before they are better.  In such situations, people have traditionally sought the advice of counsel.  Sadly, in this instance, many are being told that this dauntingly murky situation can be handled without expert guidance.  The report of the President’s own advisers implies otherwise.

President Obama created the National Commission on the BP Deepwater Horizon oil Spill and Offshore Drilling on May 22, 2010.   As stated by the Commission itself, its task was to be an independent undertaking:

“The President charged the Commission to determine the causes of the disaster, and to improve the country’s ability to respond to spills, and the recommend reforms to make energy production safer.  And the President said we were to follow the facts wherever they led.”

Appropriately, the President appointed co-chairs for the commission:  Democrat Bob Graham, Florida’s former Governor and former Senator and Republican William K. Reilly, former EPA administrator under George H.W. Bush, and former president of the World Wildlife Fund.

On June 15^th, as cited in the Report, President Obama squarely addressed the reality of the situation facing the Commission and the nation entirely:

“Already, this oil spill is the worst environmental diaster America has ever faced.  And unlike an earthquake or a hurricane it’s not a single event that does it’s damage in a matter of minutes or days.  The millions of gallons of oil that have spilled into the Gulf of Mexico are more like an epidemic, one that we will be fighting for months, even years.”

After an “intense six-month effort to fulfill the President’s charge,” the facts led to many startlingly sad conclusions.   The news that such an atrocity could have been avoided and that a repeat of such an occurrence is still so likely is not at all surprising, but the sadness of that reality remains a shock to the system. Amidst its conclusions, the Commission offers snapshots of individuals whose lives have been turned upside down.  From the most obvious, such as fishermen and oyster farmers, to the more remote, like wedding coordinators, the commission seems to understand that amidst these large, sweepingly affective conclusions, individual victims will bear the cost.

The commission is also willing to confront the unknowns and the decisions that were made even more agonizing in light of our lack of knowledge.  For instance, the report discusses the angst in the decision to use dispersing chemicals when the effects of the chemicals were unknown; it acknowledges how that angst grows when the companies who make them have been unwilling to share what little information they have about them.

Of the many conclusions it draws, a few are of significance to the Gulf community and its advocates:

• The explosive loss of the Macondo could have been prevented.
• The immediate causes of the Macondo well blowout can be traced to a series of identifiable mistakes made by BP, Halliburton, and Transocean that reveal such systematic failures in risk management that they place in doubt the safety culture of the entire industry.
• Because regulatory oversight alone will not be sufficient to ensure adequate safety, the oil and gas industry will need to take its own unilateral steps to increase dramatically safety through the industry, including self-policing mechanisms that supplement government enforcement.
• Scientific understanding of environmental conditions in sensitive environments in deep Gulf waters, along the region’s coastal habitats, and in areas proposed for more drilling, such as the Arctic,  is inadequate.  The same is true of the human and natural impacts of oil spills.

So while the accident was foreseeable and could (and should) have been prevented, there is no way of knowing how big the impacts and injuries will be and there is little reassurance that it won’t happen again.  Usually when a corporation disregards safety, those who are wronged seek remedy in Court.  A jury of their peers determines the extent of the damage and, if relevant, the gravity of the wrong.  A judgement is then rendered that will not only remedy the injured, but will deter future calamities by bringing the corporate wrong-doer a fiscal awareness of the risks that they had previously put upon the public to suffer.  The hoped for and usually achieved reaction is that the relevant industry creates internal guidelines, procedures and policies that keep the risk from happening.  As the commission understands, and as their report states, regulations on their own just don’t do it.  If they had, we would not be in the mess we find ourselves in today.

In the face of a report stating that the injuries will be in the hundreds of billions of dollars; that we are still not certain even of the causative effects of the oil, the gas, the dispsersants and other pollutants; that the industry needs to find motivation to self-govern; and  that the industry let this happen through preventable mistakes, what’s the plan of action for remedying the whole thing?  What has happened?

Our politicians are considering opening more off-shore territory to oil drilling.  The fund would like you to think that the wrongdoers have fairly determined the limits of their liability to the public.  Administrator Feinberg has stated that the damages are not as far-reaching or great as we originally feared and that the fund will be able to fully compensate the injuries.    The Claims fund has created a “quick Pay” option which offers reasonably desperate claimants the right to a quick lump sum payment in exchange for a waiver.  BP’s link offers directions “For Info On How To Make A Claim w/out A Lawyer.”

The reaction is unequivocally contradictory:  The Commission and the President himself have stated that this is a long-term problem; meanwhile,  the fund and the industry act as though there is a “quick fix” option.  And although there are three claims options to choose from, each of which require documented causation, the wrongdoers are actually advising that you go through the process without an attorney, as though they have the injured community’s  interest at heart and individual counsel is superfluous.

Apparently, they have NEVER had the community’s interest at heart.  One has to wonder, in a situation where such learned politicians can recommend diametrically opposing view points, how can the average person find justice  without an attorney?