Dan Jacobs, a Kogod executive-in-residence and former DOJ attorney specializing in environmental enforcement, discusses the National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling's final report.
Tell us about your background litigating against BP.
I was an award-winning Trial Attorney in the Environmental Enforcement Section of the Justice Department, which is handling the civil suit against BP. In that capacity, I handled cases brought under the Clean Water Act and Oil Pollution Act, including an oil spill case against BP.
How will the oil spill commission's final report be used in the legal proceedings against BP?
The courts would need to rule on the report's admissibility if a party sought to introduce it into evidence. DOJ has greater legal authority to obtain evidence than the Commission (e.g., through subpoenas, formal discovery and/or grand jury testimony), and likely will develop its case(s) based on that evidence.
Transocean and Halliburton aren’t taking this lying down, placing some of the blame on government regulators. Even the commission acknowledged "government regulators lacked the authority, resources and expertise to prevent the companies' safety lapses." How much will that impact the legal recourse?
Although there appears to be ample fault on the part of the Government, I doubt that will significantly impact the case(s) against the private parties implicated in the disaster.
The commission will allegedly call for more oversight. Is proactive enforcement (the carrot, not the stick) going to be a more effective approach?
It would be great if industry would adopt voluntary measures, but the circumstances do seem to call for heightened government regulation and enforcement.
What does this mean for future drilling projects in the Gulf, Alaska, and elsewhere?
The Obama Administration so far has struck a middle ground: it has lifted the moratorium in the Gulf, but is being circumspect with respect to expanding off-shore drilling in other areas.
The government filed suit in mid-December. What was the strategy involved in filing before the commission's report was released?
One of the Commission's (limited) mandates was not to interfere with the Justice Department's work, not vice versa.
The lawsuit asks that the companies be held liable “without limitation” for damages under the Oil Pollution Act and civil penalties under the Clean Water Act. How do you think it will play out?
This will be a huge civil suit. Stay tuned also for criminal indictments, which theoretically could be against corporate entities and/or individuals.
BP's been aggressive about its liability in the spill. Why do their actions since April make the government's fight even harder?
There is a lot of money at stake, and it would not be unusual for BP (and the other defendants) to put up a vigorous defense.
Transocean claims that it should not be held liable for the actions of others, saying "no drilling contractor has ever been held liable for discharges from a well under the Oil Pollution Act of 1990." Does it have a point?
If Transocean was legally at fault, its point is irrelevant.
Jurisdictional squabbles could be a nightmare: more than 300 suits have been consolidated in federal court in New Orleans, and Alabama's attorney general filed federal lawsuits on behalf of that state. What specific challenges does this present for the judges and attorneys involved?
The U.S. Government's legal action will proceed independently of the private and state actions.