Rolling Dice in the Gulf Coast – Here Comes Feinberg and His “Choice”

Go on...roll 'em, what ya got to lose?

“Tomorrow morning, the Gulf Coast Claims Facility is up and running,” said Ken Feinberg, appointed by Barack Obama to administer the $20 billion dollar escrow fund, “BP is out of the claims-processing business beginning tomorrow.”

In many respects this is good news. Kenneth Feinberg has promised to get reparations money into the hands of residents within 48 hours and to business owners within a week. This will enable many families to pay rent and mortgages and otherwise financially begin the struggle back from the infliction of BP’s Catastraphuk, and for many businesses, it will be the difference between staying open and closing down. The way this picture has been presented, Feinberg is a neutral arbitrator, beholden to no one so everybody wins. Everyone, including British Petroleum, and it turns out the person who rigged this game is none other than Kenneth Feinberg.

First, the easy part: any resident who can show financial impact from the spill are due emergency payouts with no strings attached, and this will continue until November 23rd. After this date, however, the rules of the game will change dramatically. When Gulf Coast residents apply for a final damages payment, an amount to be determined by Feinberg and his team they will be forced to make a choice. If they accept the payment they waive their right to sue BP at a later date for any successive damages, but if they turn the payment down, they may have to wait years, decades even for any compensation as their claim make its way through the legal system. Feinberg has promised to be more generous than any court. He has stated that if he doesn’t find you eligible for a final payment no court will, but eligibility for payment is not the point. The point is the amount of time it would take to go through the courts versus the difficulty inherent in Gulf Coast residents trying to determine what amount is an acceptable final payment for what they’ve lost and might still lose.

And having to make this determination, having to decide how much is fair and having to decide now, to give up your right for future compensation?

This was Feinberg’s idea.

From the AP:

The new administrator for claims by Gulf oil spill victims says it was his idea, not BP’s, to require that anyone who receives a final settlement from the $20 billion compensation fund give up the right to sue the oil giant.

Now as it has always been, this choice is a game of craps. What was unknown is it was Feinberg, not BP who loaded the dice. Gulf Coast Residents are being asked to make a determination on how long this spill will impact their lives, when the only thing we know for sure is nobody knows how, or how long this spill will do so. Feinberg’s rules appear to assume the Gulf’s recovery is on a constantly improving trajectory, when the evidence coming out of the Gulf shows this trajectory to be anything but constantly improving.

For example:

1. When British Petroleum chose to use dispersants to fight this oil spill, they drove the oil under the surface where the havoc it is wreaking on the environment is not completely understood, and won’t be understood for many years to come, long after Feinberg’s final payments are issued.

2. The long-term health effects of the dispersants and the crude oil on Gulf Cost residents remain unknown. Significant medical studies were never done on cleanup workers after the Exxon Valdez spill in Alaska. Scientists instead have had to pull together a collection of studies on possible long-term health effects from toxic chemicals found in crude oil and the health effects of these studies include severe DNA degradation which can lead to cancer, birth defects and irreversible neurological damage. No such effects will be known until after final payments are received.

3. Nobody knows what might happen the first time a hurricane makes landfall on the Gulf Coast after churning through the Gulf of Mexico’s waters, but the potential exists for storm surges carrying crude and dispersants inland where it could do further damage.

4. Nobody knows the full financial impact if tainted seafood makes it to market. Evidence is being found of dispersants and oil entering the food chain and lately it has been revealed that the FDA weren’t even testing seafood for toxic heavy metals known to be in crude oil, despite the catch coming from known oiled areas.

5. The Macondo Well has yet to even be permanently sealed. What if something has gone wrong, or something does go wrong with the relief wells or sea floor as many believe? Oil could or will continue to leak into the gulf from the ruptured well for many years to come, many years, more damage…again, after final payments are issued.

None of these situations are static, yet Gulf Coast residents will soon be asked to choose if the final payment offered is enough to cover the damages from any one of these potential eventualities, or possibly a combination of several and should any occur, the choices made could save British Petroleum millions more in future lawsuits.

Feinberg has described his claims program as “entirely voluntary,” and though on paper he may be right, when real life steps in it becomes murkier. Programs are only voluntary when people are not feeling severe financial pressure. When people can’t afford the time it will take to exercise their legal right to sue, a program is not voluntary.

Feinberg likes to point out how it took 20 years for people to settle damages after the Exxon Valdez spill in Alaska. By the time Alaskans were being compensated, a number of people impacted by that spill were no longer even alive to collect their payments and the speed of compensation in the Gulf Coast is one of Feinberg’s oft-repeated selling points. People are out of work. Businesses are closing. Families are fracturing. People can’t pay their rent, their mortgages their utility bills or put food on the table. Feinberg’s emergency payments will take care of much of these smaller financial burdens, but the largest burdens are left beholden to the final payments: potential medical bills, any sort of job or future security, peace of mind for thousands who would not have had to worry about such things if not for British Petroleum’s Catastraphuk.

And for these final payments, they will be asked to make a choice, an estimate based on facts they don’t have, and to make matters worse, this lack of clarity is compounded by the “facts” they do have, many of which remain suspect. Reports from the EPA, FDA, NOAA all called into question by whistle blowers and independent scientists, and many more newer, potentially more detailed reports are quashed by British Petroleum’s hiring and silencing of so many other university scientists, along with the government’s decision to quickly following suit with the same tactic, all for the stated purpose of legal defense and prosecution.

Well, just try deciding how much your family’s life, livelihood, culture and future is worth while in the middle of a fog of doubt and distrust.

Or better yet try imagining:

Your house has suffered a fire, and while standing on the sidewalk watching it smolder, along comes an arbitrator offering you a settlement amount before the fire damage is inspected, would you accept? How about if you found out upon receipt of payment you would have no legal recourse after any inspection and the person who decided you would have no legal recourse was the arbitrator. How about if the firemen who put out your fire were hired by those who set it, and you suspected they all had been misleading you about the damage ever since the fire started, oh and your kids beside you are coughing from smoke inhalation and they haven’t been to a doctor yet. And you knew that when your neighbor’s house burned down, it took them twenty years to get their settlement?  Let’s not forget your livelihood was an in-home business, also burned and didn’t ya know that winter is on the way…would you then feel the choice you had to make is a fair choice, or even that you had a choice?

If so, then roll the dice and welcome to the Gulf Coast.

Welcome to Feinberg’s bigger and better deal.

Your neutral arbitrator of of the $20 billion dollar compensation fund is the one, not BP, who decided to apply the pressure of a “no sue” clause.

Read the articles:

Ken Feinberg’s claims agency starts work tomorrow

Ken Feinberg says no-sue clause on oil spill claims was his idea

Have a nice day.

(illustration by the artist: Coop)