A District Court judge has been chosen to deal with almost 300 lawsuits related to the BP oil disaster. While plaintiff’s attorneys are generally pleased with the venue of New Orleans, Judge Carl J. Barbier has come under criticism for past purchases of bonds from Transocean and Halliburton, both of whom were involved in operations on the Deepwater Horizon rig. Attorneys are hopeful that this Clinton appointee will not show favorability to the oil industry.

While some of the lawsuits concern negligence on the rig and wrongful death actions, many involve environmental claims. Certainly BP will use the government science showing that the majority of the oil spilled into the Gulf has disappeared, and is far less toxic than assumed. They probably will not use anything from Julia Whitty’s story.

The relatively small amounts of oil washing ashore, and the relief felt when the surface oil began to dissipate, hardly account for the devastation being wrought in the dark world beyond our sight […]

The containment and absorbent boom that BP is deploying around beaches and marshes—largely ineffectively—is designed to do just that: contain and absorb oil. But the Corexit dispersant BP has flooded onto the leaking wellhead 5,000 feet down, and sprayed from the air onto the surface—some 2 million gallons in total—is designed to break up the oil. “Which one is it?” asks Safina. “Do you want to contain it or disperse it? It makes absolutely no sense to be doing both. Let’s face it, with pollution, you count your lucky stars if you have what’s called point-source pollution, that is, a single identifiable localized source of pollution, like the Deepwater Horizon. So what’s BP doing with that? They’re turning it into the worst pollution nightmare of them all: non-point-source pollution.”

That’s because untreated oil quickly rises to the surface, where it can be skimmed with relative ease. But treated with dispersant, it becomes a submerged plume, unlikely to ever float to the surface, and destined to migrate through underwater currents to the entire Gulf basin and eventually the North Atlantic. “Oil is toxic to most life,” says Steiner. “And Corexit is toxic to most life. But the most toxic of all is oil that’s been treated with Corexit. Plus, dispersants may well kill the ocean’s first line of defense against oil: the natural microbes that break oil down for other microbes to eat.” The EPA has never seriously examined Corexit’s effects on marine life (see “Bad Breakup“). Now it’ll get the biggest and baddest field experiment of all time, as the flora and fauna of the shallows and the deep scattering layer collide with the dispersed plumes.

BP has taken a public relations management approach to the disaster. They wanted to keep fisherman working, keep the press and independent scientists away from the area, and keep the oil off the beach. This has created massive unintended consequences, the full effects of which are not entirely known. And this is being done with the full participation of the US government, which has barred scientists from doing their own studies on the region.

In an explosive first-hand account, ecosystem biologist Linda Hooper-Bui describes how Obama administration and BP lawyers are making independent scientific analysis of the Gulf region an impossibility. Hooper-Bui has found that only scientists who are part of the Natural Resource Damage Assessment (NRDA) process to determine BP’s civil liability get full access to contaminated sites and research data. Pete Tuttle, USFWS environmental contaminant specialist and Department of Interior NRDA coordinator, admitted to The Scientist that “researchers wishing to formally participate in NRDA must sign a contract that includes a confidentiality agreement” that “prevents signees from releasing information from studies and findings until authorized by the Department of Justice at some later and unspecified date.” Hooper-Bui writes:

“It’s not hazardous conditions associated with oil and dispersants that are hampering our scientific efforts. Rather, it’s the confidentiality agreements that come with signing up to work on large research projects shepherded by government entities and BP and the limited access to coastal areas if you’re not part of those projects that are stifling the public dissemination of data detailing the environmental impact of the catastrophe.”

In such an environment, it’s little wonder that the government puts out reports that minimize the extent of the damage. And this set of corrupted facts will form the basis of the discovery in the trial phase, at least as it relates to the environmental claims.

BP is now in the business of reducing their liability. That bears no resemblance to ensuring the safety of the Gulf of Mexico or its ecosystem.

David Dayen

David Dayen