Why does President Obama keep saying that his administration will do everything it takes to make BP “pay for the damage the company has caused” in the Gulf? Is there some question in his mind about BP’s liability? Is this another case where neither the president nor his advisers have read the applicable law? Or is it just politics driving the White House to make the American people think the administration is doing something about this crisis?
In truth, there is no question about BP’s liability: the Oil Pollution Act of 1990 (OPA) sets out exactly what BP and anyone else who caused the spill have to pay for. Under 33 U.S.C. § 2702, BP is responsible for all removal costs; all injuries to real or personal property; damages for loss of subsistence use of natural resources; loss of profits or impairment of earning capacity due to injury, destruction, or loss of natural resources or real or personal property; and damages for the cost of providing increased public services by any state. These categories of damages would cover all of the costs that everyone has been talking about, including the losses of the many fishermen in Louisiana and Mississippi who make their living from the sea. It would not, of course, cover the wages of oil workers who are now stranded because of the President’s decision to suspend all oil drilling for six months. But then, why should BP be liable for that? Obama’s moratorium is an unreasonable decision that is supported neither by the states in the Gulf nor experts in the oil and gas industry.
It is true that the OPA has a cap on liability of “all removal costs plus $75 million,” but that cap does not apply if the spill was the result of “gross negligence or willful misconduct” or a “violation of an applicable Federal safety, construction or operation regulation.” So if the evidence really shows that BP was grossly negligent or violated federal regulations, there will be no limit to BP’s liability.
What is also particularly odd, and frankly, unseemly, is the announcement by BP, after its meeting at the White House and extraordinary, extra-legal pressure from the Obama administration, that it is going to set up a $20 billion trust fund that will be administered by Kenneth Feinberg, a lawyer overseeing caps on executive pay for recipients of TARP funds. What is unseemly about this is the type of pressure involved and to what end. The president basically ignores the relevant federal statute by pressuring and threatening BP not just for more money prior to any judicial or other fair trial, but apparently for government (and therefore political) control over that money.
And that pressure was put on BP at the same time that the president, through his attorney general, is threatening BP executives, BP engineers, and everyone else at BP involved in this disaster with possible criminal prosecution despite the fact that there is little or no evidence of any intent to commit a crime, as opposed to negligence or bad engineering (which is not yet a crime, but give this administration time). This kind of behavior brings us perilously close to the way things are done in corrupt third world countries, a point that Ben Stein explains very well over at The American Spectator.
Finally, if President Obama were acting as a lawyer instead of the chief executive, he would potentially be considered in violation of professional conduct and legal ethics rules because most states prohibit an attorney from threatening criminal prosecution to “obtain an advantage in a civil matter.” Does anyone seriously believe that the looming threat of criminal prosecution by the Department of Justice was not a major factor in BP’s decision to hand this money over to the administration even though it is not required to do so under the applicable federal statute, a statute the President is ignoring?
It is not the President’s job under our Constitution to make (or circumvent) the law, it is to carry out the laws passed by Congress. Once again, President Obama does not seem to understand or respect the limits on his power that our Founders built into the Constitution, a fact that becomes more and more worrisome as time goes by.