BP Trial Resumes, Chevron Ducks Jury Trial, Florida Sues Georgia Over Water Use, Piracy Charges Against Greenpeace, Pollution Disrupts China (by Bob Percival)

The second phase of the trial against BP for the 2010 oil spill in the Gulf of Mexico began last week in federal district court in New Orleans.  This phase of the trial will focus on the dispute over the amount of oil released in the spill, which is crucial to determining the size of the ultimate civil penalty BP will have to pay.   In their opening, lawyers for the federal government claimed that BP lied about the amount of oil that was leaking from the bottom of the Gulf after the April 2010 blowout at the Macondo well that killed 11 people on the Deepwater Horizon oil rig.  On October 2 BP won an order from the U.S. Court of Appeals for the Fifth Circuit directing Judge Carl Barbier to reconsider claims administrator Patrick Juneau’s interpretation of a settlement agreement that BP claims was resulting in payments that were too generous.  BP originally believed that the settlement would cost the company $7.8 billion, but it raised this estimate to $9.6 billion last July. Approximately $3.7 billion already has been paid out under the settlement.

On September 30 Chevron dropped its request for damages in its RICO suit against the lawyers and plaintiffs who won what is now a $19 billion judgment against the company for oil pollution in Ecuador.  The move was an effort to avoid a jury trial of Chevron’s claims that the lawsuit was part of an elaborate conspiracy to defraud the company.  Daniel Gilbert, Chevron Bids to Skip Jury in Ecuador Suit, Wall St. J., Oct. 1, 2013, at B3.  Fearful that a jury would ruled against it, Chevron apparently is more eager to get a formal ruling of fraud from Judge Lewis Kaplan than it is to obtain compensation.  Kaplan previously issued an injunction to bar efforts to enforce the judgment anywhere in the world, an injunction that was overturned on appeal.  Defendants in the RICO suit, including Steven Donziger, former lead lawyer for the pollution victims, asked the U.S. Court of Appeals to remove Judge Kaplan from hearing the case because of his alleged bias.  However, after hearing oral argument on September 26, a three-judge panel of the Second Circuit denied the motion without giving a formal reason.  Based on the judges’ comments at oral argument, it is likely that the denial was based on mandamus to remove a judge being an extraordinary remedy and the fact that any decision Judge Kaplan makes can be challenged on appeal.  The trial is scheduled to begin on October 15.

On September 30 the state of Florida filed suit against the state of Georgia for excessive consumption of upstream water.  The suit was filed in the U.S. Supreme Court, which has original jurisdiction over lawsuits between states.  Florida, Alabama and Georgia have been fighting over water use for the past two decades, but previous lawsuits were filed against the U.S. Army Corps of Engineers to contest how it regulates interstate water use.  Florida argues that a historic collapse of oyster harvests in Apalachicola Bay has been caused by reduced water flows into it from the north.  Arguing that the lawsuit was “frivolous,” a spokesman for Georgia Governor Robert Bentley attributed the oyster collapse to overharvesting and drought.  Arian Campo-Flores, Florida Sues Georgia Over Water Use, Wall St. J., October 1, 2013.

A Russian court in Murmansk has now filed piracy charges against all 30 people from 19 countries who were onboard the vessel Arctic Sunrise when it was used by Greenpeace activists to protest oil drilling in the Arctic (see blog posts from Sept. 22 and 29 of this year).  The charges, which carry prison terms up to 15 years, seem ludicrous on their face.  They are spawning protests aroudn the world, including in Russia, London, and the Netherlands, which has demanded the return of the vessel that flies its flag. 

Hazardous levels of air pollution plagued northern China this weekend, leading to flight cancellations and road closures during the end of China’s “Golden Week” holiday.  The pollution resulted in delayed starting times for golfers at the Reignwood Ladies Professional Golfing Association (LPGA) Classic, the first LPGA event ever held in China.  The U.S. Embassy in Beijing reported that air pollution levels reached 400 on Saturday night using an index in which anything over 301 is considered hazardous to health. Louise Watt, Pollution Disrupts Sports Events, Travel in China, Associated Press, October 6, 2013.