In the latest from the MDL litigation, Transocean, the owner of the Deepwater Horizon, alleged that their contract with British Petroleum, the leaseholder of the Macondo Well, had indemnified them against any liabilities for pollution underneath the surface of the Gulf, and also against any civil penalties under the Clean Water Act or punitive damages from being declared grossly negligent. British Petroleum, of course asserted otherwise, as did the US Department of Justice.
Well, yesterday Judge Barbier issued his rulings. He decided the contract did indeed clear Transocean from those damage claims occurring below the surface of the water, it is British Petroleum who will be the responsible party for pollution damages from the 4.9 million barrels that leaked directly from the Macondo Well. Barbier also ruled the contract did not shield Transocean from any liability for punitive damages should their company be declared grossly negligent, nor did it indemnify them from any potential civil penalties under the Clean Water Act.
Transocean, of course, declared this ruling a victory, “This confirms that BP is responsible for all economic damages caused by the oil that leaked from its Macondo well, and discredits BP’s ongoing attempts to evade both its contractual and financial obligations. Transocean is pleased to see its position affirmed, consistent with the law and the long-established model for allocating risks in the offshore oil and gas industry…”
This only makes sense.
You see, BP was trying to skirt their responsibilities under the law and Barbier set them straight.
British Petroleum also felt themselves to be quite victorious, “Today’s ruling makes clear that contractors will be held accountable for their actions under the law. While all official investigations have concluded that Transocean played a causal role in the accident, the contractor has long contended it is fully indemnified by BP for the liabilities resulting from the oil spill. The Court rejected this view…”
This too only makes sense.
You see, Transocean was trying to skirt their responsibilities under the the law and Barbier set them straight.
And with spin factories so readily engaged, victory toasts were had all around.
Executives clapped lawyers on backs and lawyers hit speed dials to their favorite banking institutions to check account balances.
And with all these companies claiming all these victories over all these decisions, when the dust settled and the cheering finally dissipated into idle conversations about Super Bowls and stock options, it was almost kind of easy to forget that when it comes to this catastraphuk that unleashed 4.9 million barrels of oil after an explosion that killed eleven people, just how there really were no victories to be had here…
When it comes to the worst environmental disaster to hit the United States, British Petroleum had a hand in it, and so did Transocean, and for that matter so did Anardarko and Halliburton…and no matter how Barbier ruled yesterday, not one person from any of these companies has yet to spend a day in jail.
So yeah…Transocean claims victory. British Petroleum claims victory. Transocean calls British Petroleum liable and vice versa, yet eleven people are still dead while thousands of others still wait to be made whole, and all cheering aside, that’s something someone should be liable for…criminally.
So, in determining guilt and any possible fines under the Clean Water Act, welcome to another day in court, another episode of the 3 Stooges, starring BP, Transocean and Anadarko…Please, follow along and keep in mind that of course, no one is to blame except for everybody else.
First, allow me to introduce Department of Justice Senior Attorney Steven O’Rourke who explained how simple this all should be under the Clean Water Act – “Any person who is the owner, operator, or person in charge of any vessel … or offshore facility from which oil is discharged” will face Clean Water Act fines.
Okay, so British Petroleum is part owner of the lease to the well, and operator of the Deepwater Horizon, Anadarko is also part owner of the lease while Transocean owns the rig.
And, O’Rourke continued, “Each defendant admits that the oil came out of the well through the blowout preventer riser and was discharged into the Gulf of Mexico. They’ve admitted they were owners and they’ve admitted the discharge from the well.”
Well, that was easy enough…all three, guilty as fuck – so moving on to the amount of the fines…
Uh…what? Not that easy? Who says its not that easy?
David Salmons, lawyer for Anadarko said no way, man…Anadarko can’t be held liable because they are part owner of the well and the oil, it discharged from the Deepwater Horizon and since they had no control over operations onthe rig, and since the oil can’t come from both the vessel and the well, it obviously came only from the vessel.
Andrew Langan, lawyer for British Petroleum said no way, man…the oil couldn’t have come from both the well and the vessel, we agree with Anadarko about that and the oil, it definitely came from the vessel and Transocean owns all that shit.
Kerry Miller, lawyer for Transocean said no way, man…they are only liable for the oil that made it to the surface and all that subsea oil, you know, almost all of the oil unleashed into the Gulf…it all belonged to both British Petroleum and Anadarko who leased the well, so send them the bill, not us.
And there you have it…4.9 million gallons of oil discharged into the Gulf of Mexico and the only person anyone can say for sure did it, was anyone else but me.
But wait, Mr. O”Rourke then decided to try again, do his best to summarize it for the Judge: “Transocean is saying it came from the well so BP and Anadarko are liable; Anadarko and BP are saying it came from the vessel so Transocean is liable. The government says all of them are correct. They’re all liable.”
It’s like he didn’t hear a single thing the other lawyers said at all…
No wonder he works for the government, obviously way too dim to work for any of these plaintiffs.
Bob Dudley announced Monday that British Petroleum had come to terms with Anadarko, which has agreed to give up its 25% stake in the Macondo Well and pay British Petroleum $4 billion dollars as its share of damage claims and cleanup costs.
“I am very pleased that they stepped in and are now shouldering some of the responsibilities,” BP Chief Executive Bob Dudley said. He went on to add the agreement was not an admission of liability from either party, but the settlement is “favorable for both companies.”
Well, of course nobody is liable, of course, but favorable to both Anadarko and British Petroleum…how might that be?
Well, simply put, British Petroleum has estimated total costs in cleanup and damages will eventually reach $42 billion dollars. Anadarko could have potentially been on the line for 25% of that due to its 25% ownership of the well. However, if Anadarko had been able to prove in its lawsuit that British Petroleum was grossly negligent, then they would have been financially off the hook altogether. So, essentially Anadarko chose to cut their losses, with BP agreeing to the company paying only 10% of projected damages and cleanup costs, while Anadarko also gives up its pursuit of proving BP was grossly negligent in the spill.
And in case one needs reminding, a proven designation of gross negligence would raise BP’s fine by $18 billion dollars, because the fine per barrel under such a designation would increase from $1,100 per barrel to $4,300 dollars.
And that’s getting expensive, really expensive, so though Bob was glad to see Anadarko “shouldering some of the responsibilities,” what BP really wanted was for the company to stop pursuing this designation, same as they want to settle with Transocean and Halliburton more than likely under the same terms, possibly saving British Petroleum billions… billions that would go towards the restoration of the Gulf Coast, billions that would certainly constitute BP fulfilling their sense of responsibility, and potentially coming closer to finally making the coast whole again.
So yeah, when Bob Dudley says on Monday, “There is clear progress with parties stepping forward to meet their obligations and help fund the economic and environmental restoration of the Gulf, it’s time for the contractors, including Transocean and Halliburton, to do the same,” that’s pretty damned annoying to hear from the CEO of British Petroleum, and pretty self-serving too.
I get that as a profit-making company, Bob and BP are beholden to their shareholders. I also understand it only makes sense in our current system for a profit-making company to try real hard to not pay out damages, regardless of who or how many it hurts, while at the same time, giving the impression they are doing all they can to make things right.
But Bob? Mr. Dudley?
To those of us who pay close attention to this story, we do see what is going on here. Your company complains Ken Feinberg is paying too much to claimants. Your company bought off scientists from universities all over the Gulf Coast in hopes of furthering your advantage in upcoming court proceedings. Your company killed eleven people in this catastraphuk alone. Your company is making it very difficult for researchers to get their hands on necessary oil samples so they can find ways to restore the coast your company fucked up. Your company stands accused of harassing plaintiffs who have filed lawsuits against it.
And yes, your company is fighting the designation of gross negligence while at the same time urging other companies to own up to their obligations and responsibilities.
In other words, Bob, you’re full of shit.
Your company is grossly negligent. There is little to dispute about that, but what, unfortunately, is very much in dispute is whether you sons of bitches are going to be able to buy your way out of it.
“BP petrophysicist Galina Skripnikova in a closed-door deposition two months ago told attorneys involved in the oil spill litigation that there appeared to be a zone of gas more than 300 feet above where BP told its contractors and regulators with the then-Minerals Management Service the shallowest zone was located. The depth of the oil and gas is a critical parameter in drilling because it determines how much cement a company needs to pump to adequately seal a well. Federal regulations require the top of the cement to be 500 feet above the shallowest zone holding hydrocarbons, meaning BP’s cement job was potentially well below where it should have been.”
Or maybe it was due to the report released yesterday by the Joint Investigative Team of the Federal Bureau of Ocean Management, Regulation and Enforcement and the US Coast Guard which states:
“BP’s failure to fully assess the risks associated with a number of operational decisions leading up to the blowout was a contributing cause of the Macondo blowout,” and “BP’s cost- or time-saving decisions without considering contingencies and mitigation were contributing causes of the Macondo blowout.” The report notes that “at the time of the blowout, operations at Macondo were significantly behind schedule” and more than $58 million over budget.”
In any case…what concerns this writer most is whether or not British Petroleum’s actions will fall into the categories of “gross negligence” and “willful misconduct.” Simply put, the basic fine under the Clean Water Act is $1100 dollars per barrel spilled, but if the company doing the spilling is found to be “grossly negligent” that fine jumps to $4300 dollars per barrel and at a government estimate of 4.9 billion barrels, that’s a big difference in price.
And considering the joint report, it would certainly appear what many have suspected all along, British Petroleum, in a rush for profits, put at risk the safety of its own workers, the entire environment of the Gulf and all those who live along it and beyond.
“The report concluded that BP, as the well’s owner, was ultimately responsible for the accident.”
BP was ultimately responsible, that’s pretty damning, especially when one considers one of the best ways to dispute a claim of gross negligence is to spread the blame around as much as possible…which is why it is of little surprise British Petroleum’s response to the report is the following:
“BP agrees with the report’s core conclusion — consistent with every other official investigation — that the Deepwater Horizon accident was the result of multiple causes, involving multiple parties, including Transocean and Halliburton,” the company said. It added that it had taken steps to improve its safety practices and strengthen oversight of its contractors.”
Improving its safety practices…
Because Prudhoe Bay and Texas City weren’t enough of an indication something was very wrong…nope, needed the Deepwater Horizon for them to finally get it, or say they got it, again…
Make them pay.
They’re still picking up tar balls on Gulf Coast beaches, what…17 months later?
After the Deepwater Horizon exploded 16 months ago, the people of the Gulf Coast were made a successive series of promises by the government, by British Petroleum and then by the administrator of the GCCF, Ken Feinberg. In their own ways, each entity promised to make the Gulf Coast whole again…first through clean-up, then through reparations and ultimately by claiming precautions and new guidelines would be put in place so something as devastating as the BP oil spill could never happen again. All of these promises have been beset in some respect by failure.
The use of Corexit dispersant which may have made things worse, the fact that sixteen months later there is still oil in the marshes and tar balls washing up on still closed beaches, the failure of promises made to participants in the VoO program, all combined with Barack Obama’s seeming forgetfulness of promises made to an entire region, symbolized by his lack of mention in his most recent State of the Union speech and then Congress’s walk back from initially harsh criticism of British Petroleum and promises of new laws and regulations…and now, the region is still left with the economic stain of the GCCF’s many failures across four states: low-balled payments, denial of health claims based on stricter guidelines than Feinberg used in previous claims programs, his admitted denial of legitimate claims for people who lack documentation and sixteen months later, far too many people still wait for payments, not hand-outs, not charity, but compensation for the damages they suffered as a result of a catastraphuk they never asked for, but continue to live with.
Is it getting better in the Gulf?
Should it be much better than it is, are people still struggling as a result of this disaster while British Petroleum continues to make billions of dollars in profit and continues to pay Feinberg’s law firm millions of dollars in salary?
So in six months the trial begins.
“The trial over last year’s Gulf of Mexico oil spill disaster will unfold in three phases and will start as scheduled on Feb. 27, 2012, U.S. District Court Judge Carl Barbier said Friday. Barbier said at a monthly status conference in the oil spill litigation that he will issue an order soon sketching out plans for next year’s trial over liability in the disaster. His plan most closely resembles the proposal submitted by Anadarko Petroleum Co., which held a 25 percent ownership stake in the ill-fated Macondo well. “I fully intend this trial will start as scheduled on Feb. 27, 2012,” said Barbier, who was appointed to the federal bench by President Bill Clinton in 1998.”
The first phase of the trial will examine the roles of various companies in the explosion, the loss of control, the sinking of the Deepwater Horizon and the beginning flow of oil. The second phase will cover the attempts to shut down the well and how much oil was lost while the third will deal with the liability of the clean-up, the dispersants, the skimming and the boom used to cope with the spilled oil.
Also covered on Friday by Carl Barbier were the beginnings into an examination of the VoO program. Nearly one hundred boat owners have filed a complaint with the court alleging BP’s VoO program was a corrupt conspiracy that left “thousands of participants … holding the bag for millions of dollars of unpaid services, equipment, materials, repairs and decontaminations” – and that BP intended it that way.
“Lead plaintiff Clyde Crawford says BP promised the plaintiffs $1,200 to $3,000 a day to use their boats during the cleanup. Crawford says the plaintiffs signed contracts promising to be available 24 hours a day, 7 days a week, and that BP told them told several times that they would be paid their daily rate even on days they were not called to work.” According to the 111 page complaint, “BP promised to pay for all repairs needed as the result of the work, and to pay for decontaminating the boats when their work was done…but the fishermen say the whole Vessels of Opportunity program was a corrupt conspiracy….'[Defendants] BP, Parsons Corporation, Danos & Curole, HEPACO, U.S. Environmental Services and the individual defendants have engaged in an illegal and unlawful conspiracy to defraud plaintiffs and underpay plaintiffs for services, equipment, materials, repairs and decontaminations related to the VoO program and the oil spill response,’ says the complaint.”
Judge Barbier on Friday said that he stands ready to appoint someone to deal with disputes arising out of the VoO program, “This could expand,” he said. “I’m not sure how many of these Vessels of Opportunity cases could be out there.”
So, here comes the judge, and it would appear, along with the independent audit of the GCCF promised by US Attorney General, Eric Holder, the judge may just be what the Gulf Coast needs…
Especially when we read articles such as:
Some Amnesia Over Gulf of Mexico Oil Spill: where Tommy Beadreau, senior advisor to the US Bureau of Ocean Energy Management, Regulation and Enforcement states, “”In the United States, in our political environment, we’ve already seen in some circles a little bit of amnesia when it comes to the spill — the reasons for it and the effects of it.” Because, in case you forgot, we have a House of Representatives who would appear to have never seen a regulation or a federal level environmental agency they haven’t wanted to either destroy or defund.
So, the Gulf Coast is left with Judge Barbier and the attorneys.
So, here’s hoping the right thing is finally done and this region eventually gets made whole, once and for all. If BP, Obama and Feinberg won’t do it, maybe the courts finally will.
Lawyers being lawyers, and British Petroleum having long since given up that whole “making things right,” and “actions, not words” schtick – at least in reality – of course BP is going to try to use every legal maneuver to pay as little as possible to anyone. Their company’s in trouble now that the Rosneft deal looks blown so yeah, that whole Gulf Coast thing…it’s one big financial/legal liability and since the media interest flags, it’s time for corporate law to rear the ugliest of heads to take the biggest bite they can…
So stated, let’s move on to the latest from British Petroleum’s attorneys in Judge Carl Barbier’s court, shall we?
Turns out (surprise) British Petroleum is of the legal opinion that the claims for economic and punitive damages as a result of their little ‘ol spill, including those who lost jobs/wages as a result of the drilling moratorium, including those first responders who got sick during the cleanup, including basically…everybody, should be summarily dismissed by Judge Barbier.
Because these people must go through Feinberg’s GCCF claims process, first.
That pesky Oil Pollution Act of 1990, that’s why. Andrew Langer, BP’s head legal talking head argues that OPA states claimants must first attempt to redress their grievances with the responsible party – BP, and if they are then denied by the responsible party, only then can they file a claim in court. Langer also claims the Oil Pollution Act supersedes maritime law, and since OPA doesn’t allow for the punitive damages allowed under maritime law, these claims must be dismissed as well.
Dismissed, just like that…upwards of 130,000 legal claims.
Judge Barbier gave no timeline on when he would rule on the matter, but perhaps Feinberg now should really want to hold off on closing all those GCCF claims offices, you know, just in case.
BP’s desire isn’t surprising, it makes sense they would want these people to go through the GCCF. Much as the oil company would like to control a United States court of law, they don’t, but the GCCF and Feinberg are a different matter. There they hold much more sway. Hell, their guy wrote the rules, the same man Judge Barbier already ruled can’t claim himself as independent of BP. Good ‘ol Ken, the lawyer whose law firm is paid $1.25 million dollars a month by BP. Way back when, the GCCF and Feinberg’s stated mission was to keep people out of court, but this didn’t entirely happen, especially when his “generous” payments turned out to not be so generous after all. So now British Petroleum argues Judge Barbier should rule in their favor and complete Feinberg’s mission for them, kick the claimants into BP’s court, where they can be delayed, stalled, and hopefully, so frustrated that some throw up their hands and take Feinberg’s “generous” claims instead of heading back into court to be delayed, stalled and frustrated anew by BP’s lawyers.
From a legal standpoint, it makes sense. What does British Petroleum really have to lose? Self respect? The goodwill of the Gulf Coast? Well, self-respect and goodwill ain’t worth a dime and this whole mess has appeared to be about the money for this company since day one.
The plaintiffs’ attorneys, of course, disagree with BP, arguing OPA was created after the 1989 Exxon-Valdez spill because legal remedies available at the time were insufficient. They further argue the companies involved in the explosion of the Deepwater Horizon shouldn’t be able to now use OPA as a legal shield to escape punitive damages and throw these legal claims into the GCCF mess. Besides, the oil pollution act of 1990 doesn’t expressly declare an intent to displace maritime law, whereas other statutes that prevent punitive damages do specifically prohibit them.
Judge Barbier, who questioned both sides’ arguments, asked how it is he is supposed to go through the 130,000 cases to determine which should be thrown out and which should be allowed to proceed. Nobody seemed to have an answer on this, beyond saying such a process will be exceedingly time-consuming.
Even more so pehaps, then the GCCF’s claim process.
But British Petroleum wasn’t the only company to get in on this four-hour hearing, and all involved had an argument on why these pesky economic claims should be dismissed. Represented in court were Anadarko, Halliburton, Cameron International and Transocean. Transocean argued that since BP is the responsible party, economic claims should only be made against BP under OPA, and then it would be BP’s right to go after the other companies to pay their share. You see, the people have filed suit against the wrong companies in the wrong order.
In other words, much like Feinberg’s screaming about unsatisfactory documentation, all of the big companies on the hook here are claiming the businesses and the people of the Gulf Coast are doing it wrong, not adhering to the correct process, not filing suit against the right company, not going through the GCCF process first, where they would inevitably be unable to document their claims in the correct way.
Or in other, other words…the claimants, the victims in this colossal fuck-all, the right thing for them to do would be to do as they are told, hurry up and wait, and go back to a GCCF process many consider long since broken.
All unless Judge Barbier, much like finally declaring Feinberg not independent, sides again on behalf of the people so harmed by this disaster, a catastraphuk not of their own creation.
Oh, but that’s not all, there’s more…
On the drilling moratorium: BP also asked for a dismissal of the claims by people who lost jobs/wages as a result of the drilling moratorium, saying it was the government who declared the moratorium, not BP, so why are they at fault? According to the plaintiffs’ attorneys, the moratorium was something the government would reasonable feel was necessary when they realized, hey, those oil rigs aren’t as safe as we ignored/were led to believe and you know what? We don’t have the resources to fight off these kind of spills so we better do a safety check. The plantiffs’ attorneys are also guessing the moratorium wouldn’t have happened had the Deepwater Horizon not exploded and since, under OPA, BP is the responsible party…well…they should be liable because one plus one usually equals two.
Unless you’re watching the latest “making it right,” advertisement by British Petroleum.
Attorneys for Nalco were also in court, the makers of Corexit dispersant and they argued they should have immunity from damage claims by people who got sick inhaling their toxins because the Federal government was in charge of the response, and it was the federal government who chose to use Corexit, “This was a spill of national significance, which put all of the decision-making in the hands of the federal government,” said their attorney.
One might wonder if this attorney is referring to the same government whose EPA expressly ordered British Petroleum to stop using Corexit dispersant, only to have BP refuse…somehow equating BP’s ability to do as they wished throughout the spill response with the ability of the government to be in charge of all the decision-making.
There’s also the matter of all the private contractors who claim they deserve immunity too because they were doing cleanup under the same fully authoritative decision-making of the same federal government who had everyone listening intently on that whole Corexit deal. The plaintiffs’ attorneys in this case rightfully argued said contractors weren’t working for the government, they were hired by and working for BP and thus, why should they have immunity?
The entire hearing lasted a total of four hours and there’s more, but damn, my fingers are getting tired so perhaps I should just try wrapping this up:
British Petroleum, Transocean, Anadarko, Cameron International, Nalco…dismiss everything so we can better direct our funds to making things right for the Gulf Coast…
Residents and businesses of the Gulf Coast…get out of their way, you’re doing it wrong so go talk to Feinberg and he’ll tell you in no uncertain terms just how wrong you all are, while he painstakingly helps you to move on, being the loyal neutral arbitrator that he is…
The lawyers? Well, they’re busy being lawyers…
But most importantly, Judge Barbier, it’s up to you now and I for one, hope your ruling continues the process of finally making things right for all the people along the Gulf Coast that British Petroleum has made so wrong.
Such are the questions in the Gulf Coast, about the claims process and the safety of Gulf seafood. In the federal version, the seafood is fine, the FDA is doing their testing and everything is coming up aces while Feinberg is doing his best as a neutral arbitrator and quickly trying to get as much money as he possibly can into the hands of a beleaguered public. Justice is running its course, and all of the companies involved in the BP oil catastrophe will be legally obligated to make amends and pay their fair share towards restoring the pristine waters of the Gulf back to their only kind-of polluted state. British Petroleum is cleaning up the oil, using all the manpower it deems necessary to do so. In a show of confidence, the federal government has urged the armed forces to start using Gulf Seafood to feed the troops.
Obama is silent on most of these issues and on vacation in Hawaii, so no worries…the Secret Service won’t allow for anymore shirtless president photos to grace the AP wire.
An environmental law firm in New Orleans said it was preparing to challenge the government’s public declaration that following the nation’s worst-ever oil disaster, seafood from the Gulf of Mexico remained safe to eat. Stuart H. Smith, Esq., of the law firm Smith Stag, LLC., was leading the charge, rallying additional litigants to his side through a website called Oil Spill Action.
One of the toxicologists on Smith’s litigation team pursuing BP was Dr. William Sawyer…he’s calling the Food and Drug Administration’s safety test “little more than a farce…they did not test the [total petroleum hydrocarbons] (TPH) in their samples,” he said, calling his testing methodologies a much more comprehensive way of examining compounds present in seafood when compared to the Food and Drug Administration (FDA) tests.
Dr. Sawyer added that some of his test samples came from seafood on its way to market, pulled from waters that had only recently been classified as safe for commercial fishing activities. “The sensory test employed by the FDA detects compounds that are volatile that have an odor; we’re detecting compounds that are low volatility and are very low odor,” he added. “We found not only petroleum in the digestive tracts [of shrimp], but also in the edible portions of fish. We’ve collected shrimp, oysters and finned fish on their way to marketplace — we tested a good number of seafood samples and in 100 percent we found petroleum.”
Among the people represented in his suit are everyone from seafood retailers to crabbers to real estate developers, and they continue to add plaintiffs, all targeting BP, Transocean, Anadarko, MOEX Offshore and Halliburton.
Said Dr. Shaw, a marine toxicologist at the Marine Environmental Research Institute in Maine about exposure to the crude oil in the Gulf, “There is no safe level of exposure to this oil, because it contains carcinogens, mutagens that can damage DNA and cause cancer and other chronic health problems…many people in the Gulf have been exposed for months — not just workers but residents. There are hundreds of health complaints from local people with symptoms that resemble symptoms of oil exposure. It will be years, possibly decades, before we understand the extent and nature of the health effects caused by this spill.”
Meanwhile, Feinberg and the GCCF’s claim process continues to get its fair share of criticism.
In an Op-Ed written by the Alabama attorney General, Troy King and published in the USA today, King writes “Gulf Coast Claims Facility Administrator Kenneth Feinberg cannot be trusted. While Feinberg has tried to persuade residents of the Gulf Coast that he works for them — referring to himself as their advocate and friend — he was hired by BP, his law firm is being paid $850,000 a month by BP, and every action he has taken has benefited BP….regrettably, throughout this process Feinberg has dragged his feet, admittedly applying uneven criteria to many well-documented claims from businesses on the verge of bankruptcy and closure, thus pressuring business owners to take whatever small compensation he offered.”
Nevertheless, Mr. Feinberg promised that legitimate applicants could expect to receive money within a day or two. Yet, many applicants have languished for months without receiving anything, and Mr. Feinberg appears loath to blame his organization for that. If a person’s been waiting for money since August, he told The Times-Picayune, there must be something wrong with the application. “All I can say is there’s a very, very good reason for it.” Apparently not so good a reason that he can share it with frustrated applicants. Mr. Rogers (a claimant) says he doesn’t know why he hasn’t gotten a payment.
Mr. Feinberg’s presence here along the Gulf Coast is supposed to guarantee that people with legitimate claims can get damages they’re owed by BP without having to give a portion of it to a hired lawyer. Yet, hundreds of people were so frustrated with Mr. Feinberg’s slow pace that they lined up in the cold this month to sign over a third of any money they get to attorney Tim Porter if Mr. Porter can help them secure the money. That should be a sign to Mr. Feinberg how frustrated people are with him and his organization.
In response, Feinberg has hired several law firms and a claims administration company to help people in applying for final claims. The law firms will be set up in offices across the Gulf Coast and though Feinberg has now promised to release the methodology the GCCF is using to approve or deny claims and determine how much each claimant is given, as of yet these guidelines have not been posted to the GCCF website.
So again, who do you trust? Who are the people in the Gulf Coast supposed to trust?
Its a hard question with no easy answer.
The government has never appeared to play it straight with the Gulf since this thing started. Be it flow rates, the waffling of Thad Allen, the exceptions granted every time to BP to continue spraying dispersants while maintaining their categorical use had ended. It’s also the ridiculous oil spill numbers they released, the NOAA’s opening of water for fishing only to find newly discovered oil and then the immediate closing of the same waters. There appears to be an overall refusal from the beginning to acknowledge adverse health effects of the crude or the chemicals. They appeared complicit in BP’s refusal to allow the press in to cover the story. The NOAA seems virtually incapable of finding oil on the seafloor while for the University of South Florida, this appears to be no problem. The government withholds information from the public at every turn and Barack Obama? Besides a brief swim and a couple of speeches has been absent from the Gulf of Mexico.
These things are glossed over in the official version of events, but we are told to trust the FDA that the seafood is safe despite the increasing clamor from independent scientists like Dr. Sawyer who believe this isn’t the case.
Meanwhile, Feinberg has been a colossal disappointment at best and his solution to his own failure is to hire more attorneys to advise plaintiffs on what to do. If British Petroleum pays Feinberg, then British Petroleum is paying these new legal advisers as well. And if it is in both BP and Feinberg’s interests to settle claims without suing BP, why would a plaintiff be anymore inclined to trust the new legal help?
Personally, I worry about a bunch of attorneys running down to the Gulf to sign up plaintiffs for lawsuits and take a healthy chunk of any compensation that should all be going to the plaintiffs, but at this point what other option exists? Trusting Feinberg?
So who do you trust?
In my estimation, you trust your own instincts and the people who want the truth, and not just best case scenarios. If the seafood is safe, even though not legally necessary, why doesn’t the FDA do the more thorough testing to prove their point? If anything, just to reassure the public because isn’t that the whole point of the FDA saying the seafood is safe? To reassure the public? And Feinberg…Good lord, where to begin…if he had been more up front, more realistic, more consistent and most importantly, transparent…Gulf Coast residents would not have felt it necessary to hire their own attorney, but Feinberg has been none of these things and if it were me, much as I don’t want to say it, I’d be making some phone calls. At least then I would know for sure the attorney is on my side.
It didn’t have to be this way, but through the unfortunate actions/inactions of Feinberg, the government and their collective agencies, now it is.
As a result of the Federal lawsuit against British Petroleum for violations of the Clean Water Act and Oil Pollution Act, estimates are the resulting fine for British Petroleum could be between $5 and $20 billion dollars, depending primarily upon whether BP is found grossly negligent in the explosion of the Deepwater Horizon. Though these numbers have been written about for months, according to an article by Rowena Mason in the Telegraph, by analysis of BP’s own accounts British Petroleum has budgeted only $4 billion dollars towards this settlement.
This could be perceived as quite a gamble, so what happens if they’re wrong?
Writes Mason: I pressed Bob Dudley repeatedly at BP’s annual results on whether the company had a “plan B” for raising more money, if it is found guilty of gross negligence or it has underplayed liabilities. However, he was absolutely adamant that it will not come to that.
British Petroleum has been reassuring its stockholders by saying they have already paid $10 billion in cleanup costs, that the $20 billion dollar escrow account should be more than enough (and expecting a large portion back) to pay Gulf Coast claims and companies like Anadarko and Mitsui will have to fork over a percentage of the damages upon completion of lawsuits.
That might be all well and good, but what British Petroleum appears to have failed to take into account are punitive damages the Feds could go after, other civil and criminal fines that various government agencies could hold BP liable for and last, but not least…Gulf Coast residents who opt to tell Feinberg what he can do with his no-sue clause and go after BP personally, including the families of the eleven people who died on the Deepwater Horizon.
This makes that $4 billion dollar estimation by BP’s own accounts look a little less safe.
It also puts the spotlight on Feinberg and the no-sue clause.
Ken Feinberg has repeatedly asserted that his payouts will be more generous than any court and he has used this claim in the furtherance of one of his stated main goals, to keep people out of court, to get them to accept final payments and keep them from filing lawsuits. By his own estimate, he feels he will be able to give BP back $14 billion dollars of the escrow money.
And this could be money BP sorely needs, and would seem by their own accounts, money they might even be depending on, which again raises the question, who is Feinberg in the Gulf to serve? From the account of many frustrated Gulf Coast residents it certainly isn’t them.
The final payment, Feinberg’s new quick payments, all come with the no-sue clause which would certainly appear to be designed to limit liability not only for British Petroleum, but 120 other companies, including Halliburton, Transocean and the makers of Corexit, Nalco.
This, while long-term health effects are unknown, while future damage to the seafood industry are unknown, while the long terms effects of the millions of gallons of Corexit dumped into the Gulf of Mexico remain unknown. Signing the no-sue clause leaves Gulf Coast residents on the hook for any problems that should come as a result.
And Feinberg also denied 220,000 claims, almost half, limiting BP’s liability even further. In doing so, Ken often blamed poor documentation for the denials, but to me, it would appear more of the blame should be associated with British Petroleum’s $4 billion dollars, any potential findings of “gross negligence,” and BP’s ace in the hole, Ken Feinberg.
Perhaps so, and maybe because of new information such as this:
In the journal, Annals of Internal Medicine, a new study reveals the longer term health effects for cleanup workers exposed to spilled oil when the tanker Prestige sank off the coast of Spain. What it shows is the risks to human health go far beyond the damage of immediate exposure, and often leads to risk factors for later negative health developments.
The effects were measured two years after the spill, and they include:
– Wheezing, chronic cough and other respiratory symptoms.
– Higher levels of chemicals associated with lung damage.
– Higher rates of chromosome changes in white blood cells, changes that in other studies are linked to increased risk of cancer.
There are certainly differences between the Prestige Spill and BP’s catastraphuk: different types of crude oil, water temperatures and in Spain, the oil spilled directly on the surface whereas in the Gulf of Mexico, the oil had to rise through a mile of the Gulf’s waters. That being said, the spill in the Gulf was significantly larger and has the extra added effect of two million gallons of dispersants, chemicals also suspected of causing respiratory symptoms. David Savitz, a co-author of the editorial accompanying the Prestige study comments about the Gulf, “We can’t assume it’s going to be the same here as it was there…but this shows that there is the potential for health effects that go far beyond immediate exposure.”
And that is the concern, both for the health of the 50,000 Gulf Coast cleanup workers and the “no sue” clause in Kenneth Feinberg’s arbitration plans.
The final effects of the oil and Corexit’s toxicity in this particular spill are unknown yet Gulf Coast residents, if the terms of the final payout remain unchanged, will soon have to make a large, uninformed choice.
They can accept the final payout and hope all is well with the health of their family.
They can reject the final payout and take their chances in court.
As the Prestige study shows, the potential health effects may not be known for years to come so it seems both immoral and unfair for people in the Gulf to have to face down the potential for huge medical bills as a result of this Catastraphuk, a turn of events that was not of their making, by a company who promised to make everyone whole again.
And maybe, they may not have to make this choice at all.
It would seem Feinberg is now giving himself some wiggle room, much to the suspected disapproval of British Petroleum. He stated in a recent article: “The question of whether or not a final payment will require a claimant to release one defendant, BP, or all defendants, has not yet been resolved by me.” If Feinberg is indeed reconsidering the rules, this would certainly be a positive development for Gulf Coast residents, not only could BP still potentially be held liable, but so could Transocean Ltd. who owns the Deepwater Horizon rig and Anadarko Petroleum Corp., which owns a 25% stake in the well.
BP spokesman Daren Beaudo said in an e-mailed statement, “BP believes that any settlement should be a full and final settlement.”
For the sake of thousands in the Gulf Coast, hopefully Mr. Beaudo is wrong and Feinberg will change his mind.
To close off financial compensation within a year, while the speed of the payments is appreciated, could leave many residents floundering later, long after the money is gone, long after the country has forgotten and long after BP has finally succeeded in washing its hands clean in all that oiled surf washing ashore in Louisiana, Alabama, Mississippi and Florida.
I would also hope that officials in these four states are attempting to sway Feinberg. If the rules remain in their current form, it is these four states that will end up paying the costs should their citizens’ health begin to fail, not British Petroleum, not Anadarko or Transocean.
You know…the companies responsible for unleashing this monster on all involved in the first place.