U.S. attorney general opens criminal probe of gulf oil spill

By Theresa Vargas and Jerry Markon
Washington Post Staff Writer
Tuesday, June 1, 2010; 7:44 PM

NEW ORLEANS -- Attorney General Eric H. Holder Jr. announced Tuesday that his office is using "the full weight" of its investigative power to pursue criminal and civil investigations into the oil spill that has devastated the Gulf Coast.

"The Department of Justice will ensure that the American people do not foot the bill for this disaster and that our laws are enforced to the fullest extent possible," he said.

Earlier in the day, President Obama vowed a "full and vigorous accounting" of the causes of the disaster, telling the leaders of a new commission that they should pursue the trail of blame without limits.

"They have my full support to follow the facts wherever they may lead, without fear or favor," Obama said in the Rose Garden on Tuesday after meeting with the co-chairmen of the commission, former Florida senator and governor Bob Graham and former EPA administrator William Reilly.

Holder's announcement came at an afternoon news conference in New Orleans, the same day the attorney general met with local law enforcement officials and surveyed part of the affected area.

"What we saw this morning was oil for miles and miles and miles, oil that we know has already affected plants and animal life along the coast and has impacted the lives and livelihoods of all too many in this region," he said. "This must not be forgotten."

Among the statutes his office is examining: the Clean Water Act, the Oil Pollution Act of 1990, the Migratory Bird Treaty Act and the Endangered Species Act.

Criminal prosecutors are also examining possible false statements, obstruction of justice and conspiracy, federal law enforcement sources said. They would not say if evidence of such crimes has emerged. Legal experts said this means that investigators are exploring whether BP ignored warning signs before the explosion, falsified records or statements to regulators, or tampered with testing equipment.

"As we move forward we will be guided by some relatively simple principles," Holder said. "We will ensure that every cent, every cent of taxpayer money will be repaid and that damages to the environment and wildlife will be reimbursed. We will make certain that those responsible clean up the mess that they have made. . . . And we will prosecute to the fullest extent of the law, anyone who has violated the law."

Justice Department lawyers were sent to the gulf weeks ago to monitor the spill. Holder said the investigation has been ongoing, but he would not say who had come under focus.

"We are not in a position yet where I think we have in our own minds who should be ultimately held liable," Holder said. He added that steps are being taken to ensure the investigation does not interfere with the cleanup effort, which is being spearheaded by BP. "It is in BP's interest," he said, "to keep doing what they're doing, in fact even doubling" the effort.

The investigation is virtually certain to result in a civil lawsuit against BP, which is essentially already in violation of federal environmental laws that carry a low standard of proof, experts in environmental law said. Some type of criminal case is also likely, they said.

The top two statutes that Holder said prosecutors are reviewing -- The Clean Water Act and the Oil Pollution Act of 1990 -- only require proof that an oil spill occurred and that BP is responsible, whether the company intended to discharge oil or not. The government can use the laws to recover cleanup costs and damages -- which are capped at $75 million under the 1990 law -- and to try to convince a judge to order BP to properly clean up the spill. Federal law enforcement officials have indicated that one possible ground for a lawsuit would be who is responsible for cleanup costs.

"Obviously, on the civil side, you have a very, very low bar," said William Carter, former chief of environmental crimes for the U.S. attorney's office in Los Angeles. "If there was an oil spill or damage to the environment, you identify the cause and who was responsible. Anything short of an act of God, like a lightening bolt hitting something, and that person is going to be responsible for the cleanup."

The civil and criminal probes will likely proceed along parallel tracks, and criminal prosecutors also have an extraordinarily low bar to show violations of The Clean Water Act and the 1990 oil pollution law, which was passed in response to the Exxon Valdez disaster.

"It's a very low threshold," said Roger Marzulla, who headed the Justice Department's environment and natural resources division in the Reagan administration. "Was the oil discharged into the water supply of the United States and was it knowing? All that means is did BP intend to drill an oil well in the Gulf and extract oil out of it."

In a criminal case, there would be no cap for cleanup costs and damages, and executives could face jail time. Sentences tend to be short, experts said -- unless prosecutors can show that the company ignored warning signs before the explosion, falsified records or statements to regulators, or tampered with testing equipment. Such violations, which could lead to more serious charges such as obstruction of justice, often determine whether prosecutors pursue a civil or criminal track.

"It's the outrage factor," Marzulla said.

Holder noted that 11 lives were lost the day the rig exploded. "I want to assure the American people that we will not forget the price those workers paid," he said.

Experts said that indicated that charges under federal worker safety laws could result, which do not require an intent to harm the workers. "Most laws that relate to any homicide require a specific intent. Not so in the environmental area," said Barry Groveman, former chief environmental prosecutor for Los Angeles County, Calif. "Courts and statutes have interpreted health and safety and environmental laws as so critical to the public welfare that standards are lower than for most crimes."

In addition to federal charges, BP could also face state prosecutions, and Mississippi Attorney General Jim Hood -- one of several state officials who met with Holder on Tuesday -- strongly indicated that he and other Gulf state prosecutors are considering such a case. "If BP cut corners in destroying our Gulf, somebody will pay and it won't just be money -- they will certainly be subjected to criminal laws," he said. "From what I've seen, a grand jury needs to review this thing."

In Washington, Obama said he will soon appoint five other members to the commission he created to investigate the spill.

"We have an obligation to investigate what went wrong" leading to the April 20 blowout of the deep-sea oil well, Obama said. If current laws are insufficient to prevent such catastrophes, "the laws must change," he said. "If oversight was inadequate to enforce these laws, oversight has to be reformed. If our laws were broken, leading to this death and destruction, my solemn pledge is that we will bring those responsible to justice on behalf of the victims of this catastrophe and the people of the gulf region."

Markon reported from Washington.

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