Exxon paid $125 million criminal fine for Exxon Valdez; in the Gulf oil spill, an outraged public expects billions in penalties

If the spill had resulted from a hurricane or lightning strike, or if it had been an unavoidable accident — an equipment failure that happened without warning — it wouldn’t warrant criminal prosecution. Increasingly, however, it appears that there was negligence or worse in the events leading to the explosion of the rig.

News reports have described warning signs that went unheeded and deviations from standard industry practice: Gas was seeping into the well. The blowout preventer was leaking. Concerns were raised about the well casing. There were signs of trouble with the cement in the well. Mud circulation was limited. A final concrete plug was not properly installed. And when disaster struck, the blowout preventer failed.

Prosecutors must examine all witness statements, internal documents and any physical evidence that remains after the explosion. But if the news articles are accurate, the Justice Department should bring criminal charges against BP, and possibly Transocean and Halliburton, for violations of the Clean Water Act, the Migratory Bird Treaty Act and the Refuse Act — the same charges brought in the Exxon Valdez case. Exxon ultimately paid a criminal fine of $125 million, the largest ever for an environmental crime.

In this case, though, a fine of that size may not satisfy the many people who are outraged by the gulf spill. The public expects felony charges and multibillion-dollar fines.

All three of the environmental laws that may have been broken provide for criminal penalties, but only the Clean Water Act includes felony charges. For the government to prove a felony violation of the act it would need to demonstrate that the defendant knew oil would be discharged into United States waters. A felony violation can be easy to prove when a business dumps waste into a river, but it’s harder in the case of an oil spill.