My position is that BP might have been “negligent”….I don’t think that anyone could make a coherent argument to say that blowing up an oil rig and polluting half of the Gulf of Mexico wasn’t “negligent”. But it was not “criminal”.

As Lucia Graves (who is taking the side of the righteous against the “alleged” perpetrators), has correctly pointed out; the obsession with the word “criminal” has everything to do with money.

That’s because the 1990 Oil Pollution Act has got a let-out clause on the $75 million cap that polluters have to pay in damages (they still have to pay to clean up the mess), which is that cap only applies if the pollution was not “criminal” (if you dump oil over the side of your boat because you don’t want to pay someone to dispose of it properly, that’s criminal), or “criminally negligent”.

Whether or not this argument will have any legs will depend to some extent on what happens to the $20 billion that President Obama is aiming to put into an escrow account, or perhaps the damage will be more (in which case BP will go bankrupt).

Criminal negligence is a legal expression that is normally used in lawsuits about harming other people. If you drive a speeding car and you kill someone that is sometimes deemed to have been criminal negligence, the idea is that you should have known that you were being reckless, and you should have known that your recklessness could have harmed someone else, but although you knew that, you said to yourself “what the heck”.

But it’s difficult to prove because a lot hinges around the state of mind of the person involved at the time. In the case of BP it’s going to be quite hard to prove in the context of the blow out, first of all because right now no one knows for sure why the well blew (which is half the story, the other half is whether BP should have had more cleanup capability on standby).

You can say that someone wasn’t wearing his hard-hat and that was a breach of the safety regulations, but you have to prove (a) that action caused the accident (b) the person who wasn’t wearing his hard-hat (or his supervisor), knew that might cause an accident, but he went ahead and did it anyway.

Lucia Graves has made the argument about the abysmal track-record of BP with regard to safety in their petroleum refining. That’s irrelevant, first because the safety record of BP’s offshore operations is pretty good (as far as I know, and I’m sure if it was not someone would have dragged that up).

Second because those oil refineries were bought by BP, the culture there was not particularly BP’s, and the fact that they may not have been able to change the culture, does not prove their oil-drilling culture was defective, so BP bought a lemon, so what?

Third, the oil industry in USA is very highly regulated; there are tons of forms to be filled in and compliance records to be kept, and the Minerals Management Agency checks the “plans” and the compliance with the plans. No one is suggesting (yet) that BP management paid kickbacks to the MMA to “go easy on them” and if they did not, well MMA “should” have been doubly vigilant making sure that BP’s operation “conformed” to the safety plans, knowing, as they did, that BP (in general) had a lousy reputation on safety.

The bigger point though is that in reality “safety” plans have got not a lot to do with safety, but they have a lot to do with not getting sued. And a bigger point than that is that the focus is all about not getting citations (often for silly little things), and not getting sued.

In this case, there was an over-reliance by BP on “safety” that was not about safety. Intriguingly the moment the Horizon Deepwater blew up, there was a party going on (on the rig) to celebrate how many man-hours had been worked, without a lost-man-day. In other words, up to that point, according to the box-tickers, the safety record of the rig was impeccable.

And there was an over-reliance by MMA on the safety reports and compliance forms that were streaming in day after-day “proving” how “safe” the operation was.

In this case “safety” concerns, masked the real problems, which were that the strategies of BP in operating their rigs, and the chains of commands and hold-points (that’s when anyone can say “this is unsafe, stop the operation”), were fundamentally unsafe, and on top of that, in their arrogance, they never concieved that a well would blow so they were not prepared when one did. Well oil wells blow all the time, and this one did.

But the roots of that are bigger than a team of lawyers trawling through the communications between BP and their sub-contractors and finding that needle in the haystack which will unlock that $75 million dollar cap. If someone succeeds in doing that, it will be good news for everyone who suffered from the accident.

But it will not be good news for everyone in America who drives a car because it will just add another layer of “litigation-proof” safety regulations that do not make things safe, at huge cost.