Justice Department Probes Spill; Charges Expected

BP is capturing more oil from its blown-out well but plenty of oil is still leaking into the Gulf. David Uhlmann, a law professor at the University of Michigan, talks to Steve Inskeep about corporate criminal liability in environmental cases. Uhlmann is a former chief of the environmental crimes section of the Justice Department.

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STEVE INSKEEP, host:

It's MORNING EDITION from NPR News. I'm Steve Inskeep.

DEBORAH AMOS, host:

And I'm Deborah Amos.

Federal prosecutors have opened an investigation of the giant oil spill in the Gulf. We're going to get one perspective on the likelihood that BP will face criminal charges.

INSKEEP: When we discussed this on Twitter yesterday, one question was - could BP get anything more than a slap on the wrist? David Uhlmann thinks they could. He's the former chief of the environmental crime section of the Justice Department.

Professor DAVID UHLMANN (University of Michigan): The government almost certainly will bring charges under the Clean Water Act, probably also will bring charges under the Migratory Bird Treaty Act, both of which were used in the Exxon case. And then there are a number of other laws in all likelihood were violated here - a law governing drilling on the Outer Continental Shelf, the Marine Mammal Protection Act, that the government also could charge.

INSKEEP: Are there very many cases of someone actually being criminally convicted and going to prison for, in effect, polluting?

Prof. UHLMANN: Oh, there's dozens, actually at this point hundreds of cases where people have gone to jail for pollutions. The sentences have ranged anywhere from periods of probation to up to 25 years in jail. The issue is actually just a basic fairness question: Is there somebody or a group of people who are deeply enough involved in this situation and had enough responsibility within the company that it's fair to blame them with something as tragic as the Gulf oil spill?

INSKEEP: I think we understand the situation in which a civil lawsuit might apply. If BP causes damages, they can be sued to recover those damages. What else would have to happen for this to rise to the level of a criminal violation that could lead to a criminal conviction?

Prof. UHLMANN: Well, there's actually some criminal laws that were broken the minute that oil hit the water. The Migratory Bird Treaty Act was violated as soon as oil hit the water and birds were coated with oil. The Outer Continental Shelf Act may have been violated as soon as the oil hit the water. But generally speaking, crimes like those - lawyers call strict liability charges -aren't brought by the government unless there's at least some evidence of negligence. And in fact, that's what they need to be able to prove to bring charges under the Clean Water Act, which is the law they really want to charge in this case. So at a minimum here, the government's going to have to feel like there was negligence before they're going to be willing to bring criminal charges, but I dont think that's going to be a hard call for them to make in this case.

INSKEEP: Does it feel - and granted, it's early, we dont know all the evidence - does it feel like a strong case to you as someone who's prosecuted these sorts of cases in the past?

Prof. UHLMANN: The case against BP is a slam dunk. There isn't any question they're going to bring criminal charges against BP. Really, the questions are not so much about whether they have a strong case, whether they can prove it, but rather just how serious will the charges be, just how many companies will be involved, and whether individuals will be charged.

INSKEEP: Let me ask about one other complication. BP, of course, has a lot of resources and has a lot of lawyers, and you mentioned the Exxon Valdez case, which I think is seen by Americans as a classic case of a very well-off company being able to delay judgment for years, eventually decades, and get the judgments reduced and reduced and reduced.

Prof. UHLMANN: The criminal charges in the Exxon Valdez case were resolved very soon after the oil spill - within two years - and I would expect us to see something similar here. Civil penalty actions and civil damage claims brought by the government also were resolved within two years of the Exxon Valdez oil spill, and I would expect the same to happen here.

What took a long time in Exxon was all of the private party litigation, particularly because there were punitive damages issues there. And obviously if there's a lot of lawsuits here brought by people who've been harmed, and if they're seeking punitive damages, those suits could go on for a long time. But that's not the heart of this case.

INSKEEP: Can BP argue that they followed the government's rules and regulations in this case? And if they're able to prove that, can they get out of being liable?

Prof. UHLMANN: Well, there's an old saying in courtrooms: If youve got the law on your side, you argue the law. If youve got the facts on your side, you argue the facts. And if you dont have either, you blame the government. Theyll blame the government, but it's only going to get them so far. And frankly, I think what BP is going to want to do is negotiate an agreement with the government to resolve the criminal charges, to resolve any civil penalties, to resolve the question of how restitution will be made to victims. They dont want to replay this tragedy in a U.S. courtroom two or three years from now.

INSKEEP: David Uhlmann is a former Justice Department lawyer who now directs the Environmental Law and Policy Program at the University of Michigan.

Thanks very much.

Prof. UHLMANN: Youre very welcome.

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