Arrest of BP Engineer Beginning or End of Gulf Disaster Criminal Liability?

Kurt Mix, a drilling and project engineer on BP's Deepwater Horizon, has been charged with obstruction of justice for deleting a string of texts that detailed the failed efforts to plug the oil leak which ultimately spilled millions of gallons of oil and natural gas into the Gulf of Mexico in 2010. The content of the messages -- which were recovered by investigators -- also tell a tale of how BP's public statements at the time of the ongoing crisis were not in line with the internal information that company employees, like Mix, were sharing with their superiors.

US Attorney General Eric Holder announced the arrest on Tuesday and promised continuing pursuit of those it deemed criminally liable: "The Deepwater Horizon task force is continuing its investigation into the explosion and will hold accountable those who violated the law in connection with the largest environmental disaster in US history."

The news was perhaps welcome for those calling for criminal liabilities above and beyond the financial penalties levied against BP, but Mix's arrest seems like small fish to most.

"It leaves unanswered the broader question about whether BP and the other companies involved will be criminally charged for the spill itself -- as well as the question of whether any more senior corporate officials will be charged in the case," David Uhlmann, an environmental law professor at the University of Michigan, told the Los Angeles Times. It is "somewhat curious," he said, "after a two-year criminal investigation the Justice Department chose to lead off with these charges."

Speaking with The Guardian, Jane Barrett, director of the environmental law clinic at the University of Maryland, suggested the justice department might be trying to use Mix prosecution to to put pressure on BP to settle its civil suit. "This may be the first step in trying to get co-operation in exchange for a plea bargain for this particular defendant," she said in an email.

* * *

The Guardian: Former BP engineer charged with destroying evidence in Gulf oil spill

According to an affidavit filed in his case, a team of BP scientists and engineers, including Mix, decided on 18 May 2010, nearly a month after the blowout, that a top kill could possibly work if the flow rate of oil was about 5,000 barrels per day, which was BP's estimate at the time.

Internal BP data suggested that a top kill would fail if the flow rate was 15,000 barrels per day or more.

On 24 May, BP announced that it would start the top kill two days later, and then BP CEO Tony Hayward touted that it had a 60% to 70% chance of success.

But late on 26 May, Mix texted a drilling engineering manager, "too much flowrate - over 15,000 and too large an orifice."

However, BP kept saying publicly that the effort was proceeding according to plan. On 29 May, a Saturday, BP stopped the top kill and acknowledged its failure. The next Monday, the company's stock price plunged by 15%.

If convicted, Mix faces a maximum penalty of 20 years in prison and a fine of up to $250,000 on each count. [...]

Mix is a relatively minor character in the Gulf of Mexico oil disaster, and the charges do not relate to the crucial days and hours leading up to the blast. But legal experts said the charges could complicate BP's efforts to consign the oil disaster to the past. The oil company last week finalised a $7.8bn settlement for economic and medical claims suffered by 100,000 individuals in the Gulf.

The oil company had also been working to reach a settlement in its civil case with the federal government.

"I think the justice department is trying to send a message," said Seth Pierce, partner in the Los Angeles firm of Mitchell Silberberg and Knupp. "He is not the ultimate target in this investigation."

* * *

The Los Angeles Times: Flow Rate Information Crucial to Broader BP Disaster Investigation

The charges did not offer much of a hint as to how extensive the criminal reckoning could eventually be.

David Uhlmann, an environmental law professor at the University of Michigan, said Tuesday that obstruction of justice charges were appropriate when there was destruction of evidence during a criminal investigation. But he said he found it "somewhat curious" that "after a two-year criminal investigation the Justice Department chose to lead off with these charges."

"It leaves unanswered the broader question about whether BP and the other companies involved will be criminally charged for the spill itself -- as well as the question of whether any more senior corporate officials will be charged in the case," he said.

Environmental advocates praised the government charges against Mix on Tuesday. They were also quick to point out that the question of how much oil spilled into the gulf is central to the separate civil case the Justice Department has brought against BP.

Uhlmann, a former chief of the Justice Department's environmental crimes section, said that BP's actions before the spill should be "at the heart of the government's case."

Criminal charges in this category could come not only under the Clean Water Act, but the Seaman's Manslaughter Statute, for the deaths of the 11 workers, and the Migratory Bird Treaty Act, for the death of wildlife, he said.

BP has already reached a proposed settlement with thousands of private plaintiffs for economic damages and medical claims arising from the spill that the company estimates will total $7.8 billion.

Environmental advocates praised the government charges against Mix on Tuesday. They were also quick to point out that the question of how much oil spilled into the gulf is central to the separate civil case the Justice Department has brought against BP.

# # #