Friday, the US Department of Justice (DOJ) filed the brief in response to BP's Motion For Final Approval of Deepwater Horizon Economic and Property Damages Settlement. According to the brief
, BP made claims in the motion that the Dept. of Justice called "plainly misleading" with regards to BP's liability and Natural Resource Damage (“NRD”) issues.
The DOJ brief points to specific claims made in BP's motion:
1. That BP’s actions did not constitute gross negligence or willful misconduct – despite testimony of witnesses and, not least, the admissions and testimony of its own drilling expert, Dr. J.J. Azar.
2. That errors and omissions of BP’s co-defendants were superseding causes that broke the chain of causation and thus would absolve BP of liability – an argument that unabashedly runs counter to Exxon Co., U.S.A. v. Sofec, Inc., 517 U.S. 830 (1996), and that is impeached by the sworn testimony of BP’s own witnesses and even its own “Internal Investigation”.
3. That liability is “divisible” among BP and its co-defendants, meaning that BP would seek to avoid paying for damages to injured parties – despite that the Court has already rejected BP’s claim that damages can be “apportioned,” an instead held that BP’s liability is “joint and several.”
4. That “at any Trial, BP would establish that the Gulf is undergoing a robust recovery, further weakening claims for economic damages.” BP Motion at 69 – 75. But BP’s selective look at certain resources attempts to pre-judge the results of the multi-year, multi-million dollar Natural Resource Damage Assessment (“NRDA”) that is already showing indications of harm to natural resources, such as: Dolphins in Barataria Bay, Louisiana, are showing signs of severe ill health, certain deep-sea corals have been identified as dead or dying, and populations of plankton-eating fish that reside on certain corals are significantly decreased and there is evidence of heavy marsh oiling that “could cause negative impacts to marsh vegetation for years to decades.”
reports that the DOJ believes that Transocean, owner and operator of the Deepwater Horizon rig, is also guilty of gross negligence.
"BP did not act alone, by any means, and its gross negligence and willful misconduct are inextricably joined with the acts and omissions of Transocean,"
the DOJ brief states.
report says if the government can prove gross negligence when the case goes to trial in January 2013, damages that BP will be required to pay can triple, which would amount to $21 billion. However, the US government and BP are currently in negotiations to try and reach a settlement before trial. Forbes
says that BP has stated it hopes to settle the question of negligence and the amount of fines without going to trial.