by Stuart H. Smith
The explosion and sinking of the Deepwater Horizon oil rig on April 21, 2010, was the largest accidental marine oil spill in the history of the petroleum industry. The resulting devastation to human health and the environment continues to this day. A new Florida State University study, published on Jan. 20 in the journal Environmental Science & Technology, reports that up to 10 million gallons of crude oil “missing” from the spill settled at the bottom of the Gulf of Mexico, imperiling wildlife and marine ecosystems.
Stuart H. Smith, an environmental plaintiff attorney who served as lead counsel on more than 100 oil pollution cases and has won major litigation against oil giants Chevron and ExxonMobil, came to represent thousands of claimants against BP. He saw from the inside how BP and the American government really responded to the crisis. This article is adapted from his book, Crude Justice: How I Fought Big Oil and Won, and What You Should Know about the New Environmental Attack on America (BenBella Books, 2015).
I am a first-hand witness to the Obama administration’s complicity in putting the interests of a foreign company above and beyond the health and safety of American workers.
The tragedy began on April 21, 2010, with the explosion and fire on British Petroleum’s Deepwater Horizon oil rig in the Gulf of Mexico off the Louisiana coast. It killed 11 workers and caused a leak that would ultimately spew nearly five million barrels of oil into the Gulf.
Denying Workers Protective Gear
BP hired workers to clean up the spill, but no one was publicly addressing what the prolonged exposure to oil—which is laden with carcinogens such as benzene—might do to them. There was little talk about the threat of volatile organic compounds (VOCs) in the air along the Gulf Coast, even for workers traveling to the edge of the spill in boats and removing oil from the beaches. Cleanup crews were attaching oil-catching booms to their shrimp boats and driving their boats directly through the oil slicks to corral and collect the oil spilling from BP’s broken well—and largely tackling their jobs without serious protective gear, because BP had not supplied it.
“BP knew that providing protective equipment would be an admission that the oil exposure was dangerous and sought to avoid that at all costs,” says Marylee Orr, the founder and longtime executive director of the Louisiana Environmental Action Network (LEAN), a leading environmental group in the state.
It wasn’t long before the fishermen began reporting headaches, vomiting, nausea, dizziness, and chest pains.
In early June, two key Democratic members of Congress—Minnesota Representative James Oberstar, then-chairman of the House Transportation and Infrastructure Committee, and New York Representative Jerrold Nadler, a senior committee member—sent a letter to the EPA and the Department of Labor demanding that Gulf workers be provided with “proper protective equipment, including respirators.”
Incredibly, the Obama administration said “no.”
David Michaels, assistant secretary in the Labor Department, who oversaw the Occupational Safety and Health Administration, told the Wall Street Journal that their tests showed “minimal” risk from exposure to airborne toxins—despite the fact that EPA’s air monitors along the Gulf Coast were picking up substantial airborne VOC readings from the spill, and despite scores of alarming medical reports from cleanup workers.
Protecting BP Stockholders
Around the same time, President Barack Obama was on the phone to the British prime minister. David Cameron was in a tizzy because so many English pensioners had their retirement money tied up in BP stock.
“The president made clear that he had no interest in undermining BP’s value,” Cameron’s office announced after the phone call.
Indeed, on June 16, 2010—one month before the leaking well had been capped and the full extent of the damage could be investigated—the White House announced an unprecedented deal with BP in which the oil company would finance a relief fund of up to $20 billion.
This escrow fund was good politics—$20 billion sounded impressive to the average voter—but would prove to be music to the ears of BP’s board. Historically, such escrow funds had been effective means for companies to limit their liability. They were tools for persuading vulnerable people in desperate need to sign away their legal rights to recover full compensation for the damages they’d suffered.
Sure enough, just before Christmas 2010, Kenneth Feinberg, who’d been appointed to oversee the fund, made a blatant attempt to boost the number of cases the fund could say were “settled” by offering the spill’s victims one-time bonus payments of $5,000 for individuals and $25,000 for businesses, contingent upon his settlement terms.
In fact, the $20 billion fund had set a preliminary target for damage claims that would turn out to be tens of billions of dollars less than the actual damages. Moreover, the agreement allowed BP to secure the fund using future productions from its leases in the Gulf of Mexico as collateral, exempting all of BP’s holdings elsewhere. This locked the federal government into a partnership with BP, forcing it to continue to allow its offshore drilling in the Gulf to pay back the claims.
Hiding the Oil, Spreading the Toxins
In the early days of the spill, BP began unleashing gallons of a toxic chemical called Corexit. Corexit was able to get rid of the thick black oily plumes on the water’s surface that had been visible for miles across the Gulf and were becoming such a public relations disaster on the nightly TV news.
But Corexit wasn’t solving the oil problem, only the PR problem. Corexit was merely hiding the oil and spreading toxins over a larger area. This created even greater risks for the cleanup workers—risks they had not been trained to deal with.
Weeks after the spill, LEAN’s Marylee Orr pressed for admission to the main command centers, to which her NGO was supposed to have access. Eventually she and other Gulf environmental activists got a private meeting with a top federal official—EPA administrator and Louisiana native Lisa Jackson. They argued that the feds needed to force BP to stop spraying Corexit in the Gulf and produced evidence that Corexit was merely masking the oil and dispersing toxins over a bigger area.
(Hugh Kaufman, longtime EPA employee and whistleblower, said government officials were well aware of the hazards of Corexit, telling an interviewer that “in the Exxon Valdez case, people who worked with dispersants, most of them are dead now. The average death age is around 50.”)
At first it seemed like Jackson was listening to their plea. A short time later, in late May, the EPA and the Coast Guard issued a joint order to BP telling the company to “eliminate” surface spraying of Corexit—unless the firm got a waiver from the Coast Guard because of exceptional circumstances.
You can guess how that all played out. BP asked for and routinely got a waiver from the Coast Guard to spray Corexit—day after day, including nine days in a row immediately after Lisa Jackson’s “order,” and ultimately 74 times over 54 days. An estimated million gallons of the toxic dispersant were deployed in the Gulf after the government’s supposed command to eliminate much of its use.
Later, independent laboratory tests performed for me confirmed what the experts had feared about the Corexit spraying: dispersing the oil actually meant taking the toxic elements of the oil from the surface, where they were highly concentrated but weren’t harming marine life below, and spreading them deep into Gulf waters. Our lab tests showed toxic pollution of water at levels 35 times higher than before the oil was dispersed.
Claiming “Gulf Seafood Is Safe”
Early on, the federal government’s public relations initiative was in full gear. On June 14—54 days into the crisis of the oil spill—President Obama came down to the Florida Panhandle and decreed that he was launching “a comprehensive, coordinated, and multiagency initiative” to make sure the catch from the Gulf waters was safe to eat. “Now,” he said into the bank of cameras, “I had some of that seafood for lunch, and it was delicious….So let me be clear. Seafood from the Gulf today is safe to eat. But we need to make sure that it stays that way.”
In essence, Obama was telling Americans to eat first and ask questions later. But how could the president assure the public that seafood was safe to eat when, as he acknowledged, in-depth testing hadn’t yet even been carried out?”
At the Pentagon, a massive order for shrimp, crab cakes, and pre-packaged jambalaya was placed and sold at base commissaries around the world. The executive chef at the White House bought and served more than 2,000 pounds of shrimp and other Gulf goodies at an array of holiday parties for Barack and Michelle Obama and their guests, commenting: “We at the White House are so happy to play our part in reminding Americans that Gulf seafood is not only safe but delicious.”
Around the Gulf, news accounts quoted fishermen who were reeling in red snapper with sores and lesions—some the size of a 50 cent piece—the likes of which they had never seen before. Crab fishermen were reporting that their hauls had dropped by 70% and that the few crabs they did pull up suffered similar lesions and disease. It made sense. Red snapper were bottom feeders—eating the shrimp and crabs that live on the sea floor—and independent scientists had already shown that oil from the leaking BP rig was coating the bottom of the Gulf.
Practicing Faulty and Deceptive Testing
In late 2010, the government stated that it had tested more than 10,000 seafood samples from the Gulf and found no evidence of problems. But the vast majority of those tests were what the National Oceanic and Atmospheric Administration called “sensory testing,” and what you and I might call a smell test. This test was hardly adequate for finding traces of hydrocarbons that are odorless, yet highly toxic.
Moreover, in conducting the smell tests, specimens that were clearly oiled in the spill or possibly diseased were tossed aside, skewing the lab results. When the seafood that would have produced the worst numbers was transferred to trash buckets, the polynuclear aromatic hydrocarbon numbers looked a lot better.
In addition, according to the government testing structure, the “safe” consumption level for a grown man is four shrimp a week. Who the hell living on the Gulf of Mexico eats only four shrimp per week?
Conducting his own test analysis, Paul Orr, Marylee’s son and the unofficial river keeper for the lower Mississippi, gathered samples of shrimp, crab, and finfish from 20 different locations in the Gulf off the Louisiana and Mississippi coastlines. His results showed high levels of total petroleum hydrocarbons, including in seafood from areas that had been declared safe for fishing. Testing by other independent environmentalists showed high levels of cadmium, a long-lasting carcinogen.
Alleging “Swimming Is Safe”
The seafood shilling was just the beginning.
The government also issued reports that beaches were safe for swimming. President Obama dramatized this, allowing a photo of him swimming with his daughter—in an unimpacted bay, of course—along the Florida Panhandle coast.
The passage of time did not diminish the assault on the beaches. Tropical Storm Lee washed tar balls and patches of asphalt-like gunk up and down the Gulf in 2011, as did Hurricane Isaac in the summer of 2012. In 2013, more than three years after the BP catastrophe, a blob of oil from the Macondo field that was roughly half the size of a football field came ashore in Grand Terre Island off the coast of Louisiana.
Attempting to Bar Independent Testing
The U.S. government seemed to have two agendas—both of them bad. One was siding with large commercial fishing operations in the Gulf, whose livelihood depended on public confidence in the safety of their catch, and not with the broader U.S. public of seafood consumers. The other was to get the PR nightmare of BP out of the headlines.
Almost immediately after the spill, the FAA implemented a temporary flight restriction across the entire eastern Gulf of Mexico that continued for months. They refused to let the media get anywhere close to the offshore slicks. The Coast Guard turned the entire zone over to private security goons hired by BP who would not let anyone near the spill to photograph and take samples. BP’s guards blocked many of the roads leading to oil-gunked beaches. Never before had America ceded its sovereign police power to a corporation, and a foreign one at that.
Key governmental agencies involved in the Gulf Coast recovery seemed to be working harder to prevent independent scientists from doing their own testing than they were in conducting their own rigorous studies.
As a Big Oil litigator, I knew that the fastest way to lose an environmental law case was to rely on industry or government data, which rarely painted the full picture. It was critical to perform your own testing using your own experts. I’d never had an environmental case where the government was on the side of the victim.
To prove toxic exposure and resulting damages in the BP disaster, I hired Dr. William Sawyer, a top Florida-based research toxicologist with 30 years of experience, and Worcester Polytechnic civil engineer Marco Kaltofen, considered one of the top engineers in the field, who described himself as “specializing in when things go really bad.”
Marco and William decided that the best approach to overcoming the restricted access was simply to look and act like they belonged. “We dressed the way the BP guys dressed,” Marco told me later. “We had the story, we had the business cards and lab notebook and all the equipment. And you just go out there and you mix it up.”
Soon the BP cleanup contractors were giving Marco and his coworker access to their refreshment tent.
“I got a Louisiana oysterman’s license,” Marco said. “I would get out to these sites and they would say, ‘I’m sorry—you can’t be collecting specimens out here.’ I’d say, ‘I got a Louisiana scientific collection permit,’ and I would get BP escorts when I produced this document. It looked really official—it said I could collect oysters around this area….It had dates, stamps….”
From that, Marco collected a treasure trove of shellfish and marine life, as well as water, sand, and spilled oil.
Marco and William’s initial data showed alarming levels of toxic hydrocarbons, first in the Gulf water columns, and then in seafood. Even before they issued a formal report, they posted some of their raw data on the Internet.
That’s when they started receiving phone calls from staffers on the president’s commission investigating the oil spill.
“There was a grave concern as to why we were finding contamination,” William recalled, “and then the questions were geared toward whether we had sampling permits.”
Instead of expressing concern about the danger that might be posed to American consumers from eating oil-contaminated seafood, federal investigators were questioning whether Marco and William had permits to collect the samples.
It was only after a TV news crew investigated the calls and a New Orleans-area congressman called for a full-blown investigation that the Oil Spill Commission pulled a 180-degree turn. One staffer even tried to explain that the calls to Marco and his associate had gone out because the commission had been impressed with their work.
Much later, our team learned about some of the intense pressure that was taking place behind the scenes. At the same time that we were pressing for a more open investigation of environmental impact, in-fighting was ensuing between other independent scientists, who were finding equally troubling data, and government officials, who were finding ways to cover up the discoveries. The Reuters news agency learned that wildlife biologists who’d been hired by the National Marine Fisheries Service to document an “unusual marine event”—the dramatic rise in dolphin deaths—were told they couldn’t make their findings known because it was part of a law enforcement probe into the BP spill.
Mounting evidence revealed that oil-spill cleanup workers and other Gulf residents were suffering respiratory illnesses, skin rashes, and other more serious maladies. But federal authorities insisted that the rise in such ailments was merely a coincidence. Donald Boesch, a member of Obama’s Oil Spill Commission, summed up their response: “We were charged with being evidence-driven, and the fact is, we’ve asked for and sought out evidence that the oil spill is the proximate cause of these health problems, and we just haven’t found it.”
But all Boesch had to do was walk into any of the doctors’ crowded waiting rooms and health clinics scattered across the Gulf region.
Dr. Michael Robichaux of Mathews, Louisiana, on the Gulf Coast, was among those examining the ailing cleanup workers and other coastal residents. At first the doctor was dubious that the ailments were linked to the workers’ and residents’ exposure to BP’s oil and Corexit. But after he began treating them, he converted and became an evangelist for their cause. Of the 113 patients he treated who had been exposed to toxic pollution, he wrote that about 100 of them had severe chronic health effects, to the point that many were unable to work. “It appears that the interests of a large, foreign corporation have superseded the needs of thousands of Americans who reside along the coast of the Gulf of Mexico,” Dr. Robichaux told U.S. District Judge Carl Barbier.
In May 2012, BP announced that it had reached a settlement deal—estimated at the time to be worth $7.8 billion—with a circle of well-connected tort lawyers called the Plaintiffs Steering Committee on behalf of the Gulf Coast residents and small businesses. Joining a handful of other lawyers, I appeared before Judge Barbier that September to object to the proposed deal. How, we asked, could a proper price be fixed on the damage caused by BP when new oil kept coming ashore, as had happened when Hurricane Isaac hit the Gulf Coast just days before the courtroom arguments? We also argued that the deal was woefully inadequate, both for those who had been made ill and for many coastal businesses.
We didn’t win that skirmish, but other penalties for the British oil giant are finally adding up. In early 2015, a federal judge was nearing a final ruling on civil penalties against BP under the federal Clean Water Act, which could reach some $13.7 billion.
To date, my firm has successfully handled claims against BP for about three quarters of our thousands of clients. Hundreds of them remain, fighting for their fair share.
The extreme efforts of a Big Oil giant to avoid liability for its actions have been sadly familiar to me. But the actions of the U.S. government to side with a huge multinational corporation against the health and safety of American workers are unconscionable.
Adapted from CRUDE JUSTICE: How I Fought Big Oil and Won, And What You Should Know About the New Environmental Attack on America by Stuart H. Smith (BenBella Books, 2015).