On Thursday November 15 Attorney General Eric Holder announced that BP had agreed to plead guilty to 14 criminal charges and to pay the U.S. government more than $4 billion for the 2010 oil spill at the Macondo well in the Gulf of Mexico. BP agreed to plead guilty to 12 felonies - 11 cases of manslaughter for each of the workers killed in the explosion and one felony count of lying to Congress about the amount of oil spilled. The settlement includes a criminal fine of $1 billion, $525 million to settle civil securities fraud charges by the Securities and Exchange Commission, $2.4 billion for environmental restoration in the Gulf states, and $350 million for research to improve oil spill prevention and response efforts. The Justice Department statement announcing the settlement is available online at: http://www.justice.gov/opa/pr/2012/November/12-ag-1369.html. The government also is bringing manslaughter charges against BP’s two “well-site leaders” for having negligently caused the deaths of 11 men. BP still faces even larger civil liability under the Clean Water Act, ranging from $6 to $21 billion, which may come out on the high end of that range in light of the company’s admission about lying to Congress about the size of the spill. BP announced that it had added $3.8 billion to the $38.1 billion charge it already had taken to cover its liability for the spill. BP’s press release is available online at: http://www.bp.com/genericarticle.do?categoryId=2012968&contentId=7080497
On Thursday I was interviewed about the settlement by Lv Xiao Hong on China Radio International (see http://gb.cri.cn/27824/2012/11/16/2625s3927789.htm (in Mandarin)). Her report was reprinted in the China Daily (http://www.chinadaily.com.cn/micro-reading/dzh/2012-11-16/content_7526200.html) and on the China Network web portal (http://news.china.com.cn/live/2012-11/16/content_17194212.htm) (both in Chinese). I argued that the reason BP was willing to pay such large sums to settle the charges was because of the strength of U.S. environmental laws. I emphasized that China needs to upgrade its oil spill liability laws so that victims of spills in Chinese waters, such as the 2011 Bohai Bay spill by Conoco Phillips, can be properly compensated. My colleague Jane Barrett, who is an expert on the use of criminal law in environmental cases, explained the importance of prosecuting those responsible for environmental crimes in several interviews that were quoted in the New York Times, Washington Post and other media.
On Friday November 16 Dutch prosecutors announced a settlement of criminal charges against the British commodity trading firm Trafigura for illegally exporting hazardous waste to the Ivory Coast in 2006. The company had been convicted of the charges in 2010 and fined 1 million Euros ($1.3 million), but both the company and the Dutch prosecutors appealed the penalty. Trafigura dumped hundreds of tons of toxic waste in the Ivory Coast after it attempted unsuccessfully to offload it in the port of Amsterdam. In the settlement, Trafigura agreed to pay not only the 1 million Euro fine, but also to pay Dutch authorities 300,000 Euros, the amount that the company had earned by the illegal export. It also agreed to pay a 67,000 Euro fine in exchange for the Dutch agreeing to drop efforts to prosecute Claude Dauphin, the chairman of Trafigura. Dutch prosecutors issued a statement saying that the settlement “brings the matter to an end in a manner which makes it clear that violations of international rules on dangerous waste will not be tolerated." The company welcomed the settlement and stated: “There is little doubt that mistakes were made and everyone involved would have wanted to see things handled differently." It added: "The company deeply regrets the impact the Probo Koala incident had - both real and perceived." In 2007 Trafigura agreed to a $198 million settlement with the government of the Ivory Coast. Reuters, Trafigura Reaches Toxic Waste Settlement with Dutch, Nov. 16, 2012 (http://www.reuters.com/article/2012/11/16/trafigura-court-idUSL5E8MGDZC20121116?feedType=RSS&feedName=industrialsSector). In September 2009 the company agreed to pay $48.7 million to settle private litigation brought in London by victims of the dumping.
Last week I participated in a terrific conference on the Kiobel Alien Tort Statute case that was reargued in the U.S. Supreme Court last month (see October 2, 2012 post on this blog). The case involves efforts by the survivors of environmental activists who were murdered by the Nigerian military to recover damages in U.S. federal court from Shell Oil for allegedly aiding and abetting their executions. The conference on ”Extra-territoriality Post-Kiobel: International and Comparative Legal Perspectives” was held at the University of Maryland School of Law on November 15 & 16 (see http://www.law.umaryland.edu/faculty/conferences/detail.html?conf=130). It featured an opening keynote address by Professor Ralph Steinhardt of George Washington University, who has helped represent the plaintiffs before the Supreme Court and a luncheon keynote by Marco Simons, Legal Director of Earthrights International. Participants in the symposium were cautiously optimistic that whatever the Supreme Court does with Kiobel it will preserve the important Filartiga precedent that made the Alien Tort Statute a significant vehicle for bringing human rights litigation in U.S. courts.