Oil Disaster Trial Phase 2: BP vs. Reality

It's been more than three years since the BP Deepwater Horizon oil disaster grabbed worldwide attention. The explosive blowout that tragically claimed the lives of 11 workers on board the rig in April 2010 also unleashed an unprecedented amount of oil that flowed uncontrolled into the Gulf of Mexico for 87 days. The impacts have been staggering and ongoing.

BP's actions to stop the oil, as well as how much actually spewed into the Gulf, were the subject of the second phase of BP's trial in New Orleans, which concluded last week. The final phase of the trial will take place next year, after which the judge will determine the penalties. In the meantime, here are some things you need to know.

BP's public messaging around the trial has usually fallen into one of three categories:
  1. We've done a lot already.
  2. We intend to pay for the damages.
  3. We're being ripped off.
But here's the truth:
  1. What they've done is far below what is needed to fully restore the Gulf economy and ecosystem.
  2. Their actions contradict their claim that they intend to pay for full restoration.
  3. The people of the Gulf are the ones who stand to be ripped off.

In the days and months following the spill, BP was everywhere on the Gulf Coast, promising everyone from Governors to subsistence fishers that they were here for the long haul. "Make it right" became a mantra not only for BP but for the people living on the Gulf, a phrase repeated over and over to calm the fears that life would never be the same.

At first, it looked like "make it right" wasn't just a slogan. BP opened its checkbook to pay for one of the largest response efforts in U.S. history. Granted, some would say cleaning up the mess you made is simply a matter of good manners. But nevertheless, BP was there. Further evidence of making good on their promise came in 2011, when BP and our Natural Resource Trustees announced $1 billion for early restoration, a down payment on what will likely be a total bill of $20 billion to restore the impacted natural resources - and the people's lost use of those resources - in the region.

Fast forward to today, and it is clear that BP is no longer interested in full responsibility for their actions leading up to and during the oil disaster. Indeed, BP grows more intransigent every day. These days, they are focused on painting themselves, through a well-funded PR campaign, as the victims of greedy, fraudulent Gulf residents and politicians. "Make it right" has become "haven't we've done enough?"

BP has launched a PR campaign designed to shore up the company's assertion that they have done enough and to point fingers at Gulf residents, saying that many of the claims made as a result of losses incurred during the disaster are fraudulent and that the company has gone above and beyond in response and restoration. They took out full-page ads in several national newspapers asserting that they are being victimized.

Certainly, restoration efforts always face a handful of claims to fund irrelevant projects - just like any program that provides money. But BP is trying to put this extreme minority in the center of the debate.

Also telling is the fact that their ad campaign moved into full swing in Washington during the month before phase two of the trial. According to The Hill, "Given that much of the advertising is in Washington, it may also be aimed at garnering political support to lessen pending Clean Water Act fines that are the subject of the ongoing federal trial."

The bottom line: BP is no longer acting in good faith. They're gambling that if they dig their heels in for long enough, they will pay much less in the long run.

What, precisely, is at stake during this phase of the trial? The amount of Clean Water Act fines that BP will have to pay. The official U.S. government estimate is that BP spilled 4.2 million barrels of oil. BP denies this and says they spilled about half that much. Penalties for discharging oil (a violation of the Clean Water Act) are based on the amount of oil discharged. A lower volume means a lower penalty -- potentially around $7 billion less.

Ultimately, the amount of money available for restoration of the Gulf of Mexico via the RESTORE Act comes down to two things: How much oil did BP discharge, and were they grossly negligent in the actions leading up to and during the disaster? Presiding U.S. District Judge Carl Barbier will decide the fines, as well as the cause of the disaster and BP's level of negligence.

It does not require a court decision, however, to arrive at the simple conclusion that BP must pay -- and that it should pay in full -- for restoration of the Gulf. BP has veered off the path it was on 3 years ago to take responsibility for the damage it caused. They want to play hardball now, and the people and wildlife of the Gulf stand to lose big if they succeed.

So my ask to BP is simple: Put your money where your mouth is, and keep your promise to make things right in the Gulf. (And in the short term, Judge Barbier should ensure that BP is held accountable to the full extent of the law.) My ask to the people reading this article is also simple: Join me and thousands of other people and tell them.