Monday, May 3, 2010
BP Drilling Rig Disaster
I have not written on the drilling rig explosion and fatalities, as this seems to me a horrible event with loss of lives, many people injured, hundreds of miles of shoreline potentially coated with oil, sea life also coated with oil, hundreds if not thousands of residents and businesses damaged economically, in short, quite a catastrophe. Yet today, an article on the oil spill caught my eye and I choose to write.
DISCLAIMER: BP is not a former nor current client of mine. All the material contained herein is from published sources, which may or may not be reliable. The opinions expressed herein are my own and do not reflect in any way those of my clients, current or previous employers, nor anyone else. [end disclaimer]
First, my heartfelt condolences to all those families, and friends, of those who lost their lives that day. And to those who suffered injuries, may you recover fully and return to happy and productive lives.
The article that caught my eye was written by Donna Brazile on CNN, (see here). Ms. Brazile, known for running Al Gore's unsuccessful presidential campaign, states that BP was greedy, and is guilty of negligence resulting in the oil spill. Ms. Brazile also wrote in her article that hurricane Katrina's devastation was a natural event, but BP's drilling disaster was man-made. Ms. Brazile should understand a few things before writing such as those.
One, BP is not greedy, they are a corporation whose business is to find and produce oil. They have obligations to millions of stockholders, plus thousands of employees and their families, to do their best to create a profit. Finding oil is the lifeblood of oil companies, and those that fail at that task fade into oblivion. BP invested many millions in that one drilling operation. They are not alone, as there are more than one thousand oil platforms in the Gulf of Mexico.
Drilling on Existing Leases
Two, Democrats have criticized oil companies for not drilling on oil leases they already own, when they request the US open up additional federal lands and offshore waters for oil leases. Yet here, BP was drilling for oil on a lease they already owned. Further, Obama has instructed the Minerals and Mining Service (MMS) to open US federal waters to drilling for oil, which instructions MMS followed in 2009 with a 5 Year Plan. Obama has lifted much of the ban on drilling in federal waters. BP is following what Democrats have requested oil companies do: drill for oil on existing leases, and in waters offshore.
Three, Brazile should understand the legal term "negligence." Her use of the term in her article shows a lack of understanding. First, negligence requires a duty on the part of the defendant, conduct by defendant that breaches that duty, harm to plaintiff, and that harm must be linked to defendant's conduct both actually and proximately. Further, the injured plaintiff must be one who could foreseeably be harmed by the defendant's conduct.
BP was drilling in very deep waters, approximately 5,000 feet. BP had a duty, or obligation, to conduct its drilling operations in a manner consistent with what a reasonably prudent person, or company in this case, would have done in a similar situation. There are higher standards of conduct, or duty, in certain situations, that do not apply here. Higher standards are required where an expert is conducting a task, such as a surgeon. The surgeon is held to a standard of what other competent surgeons would do in a similar situation. Higher standards are required when the activity is an ultra-hazardous activity, such as nuclear radiation, and blasting with explosives. But, drilling for oil is not in that category.
BP appears to have exercised due care, meeting its duty, by contracting the drilling to a world-renowned drilling company with a state-of-the-art semi-submersible drilling ship. This ship used GPS location technology, and advanced thrusters to maintain the ship's position above the well. BP also employed a blow out preventer (BOP) at the ocean floor. A BOP is a large valve, usually open so drilling can occur through the valve's hole, and can be shut off quickly when a well begins to flow too quickly. This is somewhat simplified, but the idea is that the BOP closes to prevent a blowout, or uncontrolled oil and gas flowing from a well. From reports to date, it appears that the BOP failed to activate, thus releasing the oil in an uncontrolled manner, which caused the fire.
There is no doubt that many people suffered harm, with eleven people reported as missing and presumed dead. Many others are injured but alive, as they escaped the burning ship. There is also no doubt that the harm was connected to the drilling activity, or at least to the blowout. But, in assessing whether BP's conduct fell below the standard of ordinary care, one asks, what else could they have done? We do not know at this point exactly what happened, and we may not know for a long time, if ever, because the drill ship sank. It may be possible to recover the drill ship or pertinent pieces of it to determine what went wrong. Reports state that there were several emergency stop buttons, but these did not activate the BOP. Also, it appears that BP used remote operated vehicles (unmanned submarines with arm-like attachments) to travel down to the BOP and attempt to activate it from close range. This also was unsuccessful.
We also do not know, at least from published reports, if the BOP was faulty, or was tested properly and passed those tests before being installed. It may have been tested after installation to ensure it closed then opened again, but this has not been mentioned in material I have read. I have no access to internal information, merely what is available on the news outlets. It could very well be that the BOP was properly designed and tested, therefore was not faulty. Perhaps the sudden pressure of the blowout was more than what the BOP was designed to withstand, in which case the designers may be at fault. However, one must ask how a BOP is selected. An analogy is that of a car's bumper. If a large, heavy car is to withstand an impact of 10 miles per hour, but a bumper is selected that is suitable for a small, light-weight car and an impact of 3 miles per hour, then that is a faulty design selection. Yet, how is a designer supposed to know what magnitude of blowout to design for? A blowout is usually due to drilling into a very high-pressure pocket of oil or gas or water, or a combination. But, how high is that pressure? And, how extensive is that pocket?
Drillers use a material called mud that accomplishes several things. First, drilling mud is not really mud in the common sense, but is a carefully designed mixture of materials that, when mixed with water, appears much like a mud made of clay. Drilling mud is pumped into the hole as it is drilled. One of the functions of drilling mud is to act as a heavy column of fluid, and keep oil and gas in the well by the pressure at the bottom of the column of drilling mud. If a pocket of oil or gas at high pressure is drilled into, and that high pressure pocket has greater pressure than the weight of the column of drilling mud, the mud begins to flow upward out of the well. The BOP is designed to close when this occurs. It seems clear that the column of drilling mud was not sufficient to keep the oil and gas in the well. Could BP, or rather, the driller, have used a different mud with greater density, which might have prevented the blowout? Perhaps. Such information is undoubtedly being sought and discussed at BP and its contractors.
Thus, at least at this time, we do not really know the precise cause of the blowout, the fire, and the injuries. BP may have done everything correctly, as did their contractors. For Brazile to accuse BP of negligence, when so little is known about the causes of the accident, is reckless and demonstrates a lack of understanding.
Four, the devastation caused by hurricane Katrina was not entirely natural, but had many influences from human actions or inactions. The hurricane itself was entirely natural, notwithstanding a judge who wrongly ruled that global warming made the hurricane stronger than it would have been otherwise. The devastation, loss of lives, and injuries were due in large part to incompetent local and state authorities in New Orleans and Louisiana. Flooding occurred, at least in part, because one or more levees failed. Yet funds to repair and strengthen the levees was diverted by local authorities into other avenues. Some reports indicate that riverboat gambling casinos were the target for those funds. Also, local authorities authorized building of homes and businesses in areas below sea level, protected by the levees. The wisdom of this has been questioned. Incompetence at the local disaster response level also contributed to the injuries and deaths.
Brazile implies that the drilling blowout and oil slick was not natural, likely because BP was drilling into the earth searching for oil. While that is true, oil has seeped naturally into the Gulf of Mexico for centuries. The only difference is one of degree.
Brazile goes on to praise Obama for his sending officials from Washington to look at the oil spill, and criticize Bush for his handling of the Katrina event. Yet the record is clear that Bush offered assistance to Louisiana but his offer was not accepted in a timely manner by the Louisiana Governor.
The oil spill in the Gulf continues, with clean up efforts underway, and stopping the well flowing a top priority of BP. BP has offered to pay for damages and to clean up the oil if and when it reaches shore. But to accuse BP of negligence is wrong.
Roger E. Sowell, Esq.
Marina del Rey, California