Dear Lucia, thank you for your kind words, and yes you can call me Andrew any time you like.

But oh dear…I hate to break it to you like this, what with saying goodbye and all…but I must tell you that sadly there is a big difference between BEING clueless and using the “Clueless Defense”.  Big Tobacco, all Good Southern Boys, have been using that one for years.

Sadly also, although many Americans would like to think otherwise, The President of the United States of America does not have the Divine Right of Kings.

That’s of course outside of his (or her?) divine right to blow the world up one hundred times by pressing that little red-button by the bed…Mm…presumably there is some sort of fail-safe on that thing?

Anyway, dark thoughts aside…the escrow account that Obama bullied BP to put $20 billion into is just that, an escrow account. So sadly he won’t be able to pay off the unfunded Social Security obligations with that money. It’s just a way of making sure that BP is good for the money in case there is a judgment against them in US Courts.

So what? The value of BP’s assets in USA is more than $20 billion, and it’s not easy to move those offshore in a hurry, all that’s about is the President looking “tough” and appearing to be “doing something”.

Arranging that facility is probably costing BP no more than $5 million a year, that’s something, but it’s hardly a silver nail driven into their heart and in any case they are showing no signs of actually trying to run away.

With regard to the rest, well a federal judge struck down the six-month ban on drilling pretty quick; you have to remember in Louisiana there are a lot of people who make good money out of the oil industry, and they are all Good-Old-Southern boys down there.

Thank you also for noticing that my point about The Minerals Management Agency (MMA) “seems humorous”…it’s always gratifying when people recognize one’s little jokes. You are of course absolutely correct, that was an attempt at humor… black humor to be precise.

MMA had a job, they didn’t do their job, just like the SEC, FASB, and the Fed did not do their jobs making sure the US financial system did not blow up. The 1990 Oil Pollution Act mandated that the oil companies should have a plan, the job of making sure those were good plans and that the plans were followed was with the MMA.

And they should have been acutely aware that thanks to the $75 million cap, the oil companies had no incentive to come up with good plans.

In fact the incentive was for them to come up with really, really lousy plans, so they could easily comply. And thus in the case of a mishap they could be sure that they would not be hit by the one let-out on that $75 million cap…those terrifying words…”CRIMINAL Negligence”.

So instead of having a plan in place to clean up after a well went out of control and gushed 40,000 barrels of oil a day for three months, they (presumably) had a plan for if by accident one barrel of oil was discharged. And so they submitted that plan to the MMA, who “negotiated” the plan up to two barrels a day; BP said ”OK”, and they made the appropriate plans in accordance with THE LAW.

Well I’m not sure exactly what the plan said, but they were certainly unprepared for 40,000 barrels a day. The point is they had a plan, the plan was approved, and they did not break the law. Ditto the HSE on the rig, you hire a consultant, he designs a fiendishly complicated system with hundreds of boxes to tick in, and every month you send three tons of paper round to the MMA for them to “check”, or the equivalent by e-mail.

Pretty clueless sure, but it’s not the job of foreign companies to come to USA and start second-guessing the US government; particularly if they are suggesting that the government might be clueless. The rules are the rules, the law is the law, and as Winston Churchill said, “The Law is an Ass”.

A better plan would have had the US Government (who’s job it is to protect the best interest long-term of the American people), working co-operatively with the oil companies, to come up with a blame-free plan that was robust; relying less on blame and blame avoidance, and more on Kaizen or Deming; and with some really smart people outside of all that keeping an eye out for Black Swans.

But that’s not what the 1990 Oil Pollution Act said, so that’s not what the MMA did. They just followed the rule of law as laid-down by Congress.

I have no doubt that whoever it was in charge of the HSE on the rig was not even asked to sign-off when the BP manager decided to ignore the recommendations of Halliburton which may (or may not) have led to the disaster.

But you have to remember that ignoring the CYA recommendations of your subcontractor does not necessarily prove negligence; the job of the Halliburton engineer was to do what he could to get BP to agree to over-specify and buy more Halliburton services at cost-plus.

Regardless, there should have been someone in HSE capable of understanding the issues, not paid by production targets, with the authority to overrule the line manager, and stop the job. There wasn’t.

I am sorry to have unfairly criticized Engineer Abbott (in my defence I wasn’t having a go at him, just putting out an idea), I had no idea that he had gone to MMA or that he had been victimized.

But then the fault there lies with MMA, although, like in the plot of The Insider, it’s real hard to prove a general malaise on issues of HSE; unless of course there are laws to protect whistleblowers, and to address those issues. Which there are not.

With regard to BP’s record running an oil refinery, that’s a different business and a different mentality, it is not a valid point. With regard to Deepwater Horizon’s HSE record, I know for a fact that they were having a “box-ticker’s” party when the rig blew, and all of the “incident’s” that you cite are “box-ticker” incidents, not “near-miss-rig-blow up incidents”.

Safety is just like quality, and like Edward Deming, one of the greatest Americans who America never listened to, said…”fear” (of blame), ”is the ultimate enemy of quality”.

Before I sign off I’d like to say, Mr. Butter, that it has been a pleasure debating with you. Come to think of it, we’ve been arguing for long enough that I can probably call you Andrew. While we don’t agree on every point, I admire your Renaissance style of argument, particularly your insights into the nature of cluelessness. Best to you and yours, and many thanks to Public Square for having me.

I do feel I should put in a word of defense for Mr. Abbott of Atlantis fame, who I believe deserves the title of “whistleblower” and maybe “victim.” When BP failed to address the concerns he raised most courageously, he eventually did go to the Mineral Management Agency. To date they have failed to respond to the safety concerns he brought before them first in 2009 and again this year.

“Given the quantity of records and need for MMS to focus on responding to the Deepwater Horizon accident, the investigation is only approximately 10 percent complete,” said Secretary of the Interior Ken Salazar. The investigation should take days, not years.

But I was most interested in that final point you made about the importance of being able to plead clueless. Since motivation is hard to prove in most any situation, “clueless” can serve as a convenient cover for, oh, say a line like this: “But we thought there were weapons of mass destruction…”

BP was not clueless. They had clues. Lots of them. Clues that they systematically and strategically ignored as part of a cost-cutting calculation. Of course in light of the Deepwater Horizon disaster, it has become evident that they grossly miscalculated. So maybe I will give you clueless, only not as you originally intended it.

The “obsession” with the word criminal, to be clear, has everything to do with making sure BP pays. It has to do with compensating the families of the aggrieved. It has to do with restoring the Gulf Coast and its wildlife. It also has to do with making sure that something like this never happens again. BP can’t bring back the dead or restore the environment they’ve ruined. Instead they are just being asked to pay for righting some of the devastation they’ve caused. There’s not a clear price tag for these things, and I think there is no price tag, but paying is the least they can do.

The question is whether we have a legal system in place that can make them pay for the damage they’ve caused. The answer is probably not, but public outrage has pressured BP into agreeing to the $20 billion escrow account — they are not, after all, politically suicidal. The punishment suggests the crime.

As for Mr. Butter’s argument about BP’s track record being irrelevant – I could hardly disagree more. This disaster did not happen in a vacuum. It’s critical that we understand the context if we are to prevent it from happening again.

The claim that “the safety record of BP’s offshore operations is pretty good” is also not true. They have the worst record in the industry, and the evidence for that is widely available. Just last year BP was found to have 700 individual safety violations at its Texas City refinery and was fined a record $87 million for damages. The CPI study I cited earlier shows that only one other refinery has received an “egregious willful” citation between June 2007 and February 2010 — and that was a single citation, compared to BP’s 760 during the same period.

Mr. Butter’s next point — that because BP bought its oil refineries, the culture there was not particularly BP’s — doesn’t hold either. They bought the refineries and ran them. The leadership and tone was their own. As the supervisor from BP’s Atlantis who was fired for expressing safety concerns explained: “Management sets the tone. If they think that production is more important than safety, then that’s the tone of the company, and that was the tone at Atlantis.”

The assertion that the U.S. oil industry is “very highly regulated,” seems humorous. The Minerals Management Agency’s performance has been completely inadequate and there has been extensive documentation of the agency’s cozy relationship with big oil. Even President Obama is making those charges: “Over the last decade, this agency has become emblematic of a failed philosophy that views all regulation with hostility – a philosophy that says corporations should be allowed to play by their own rules and police themselves,” he said, as he addressed the nation about the state of the spill. “At this agency, industry insiders were put in charge of industry oversight. Oil companies showered regulators with gifts and favors, and were essentially allowed to conduct their own safety inspections and write their own regulations.” It’s not a coincidence that the head of the agency, Elizabeth Birnbaum, was fired in the wake of the disaster.

There is certainly enough blame to go around. Indeed Attorney General Eric Holder has announced that the Justice Department’s criminal investigation into the Deepwater Horizon incident may cast a much wider net than just BP. “There are a variety of entities and a variety of people who are the subjects of that investigation,” Holder said in an interview with CBS’s Bob Schieffer. “For people to conclude that BP is the focus of this investigation might not be correct.” The investigation is ongoing and Holder suggested the investigation may extend well beyond the companies directly involved with Deepwater Horizon. He said there’s a “certain commonality of the way oil companies had been operating” in the Gulf.

But though there is enough responsibility for all concerned parties, and I do believe each entity should accept their share of responsibility, the shortcomings of the MMS et al constitute quite a different debate. I’ll return to refuting Mr. Butter’s claims.

To call the safety record of BP’s Deepwater Horizon rig “impeccable” is clearly wrong — I do not like even repeating that argument, because I feel doing so lends it credence. There is plenty of documentation that in nine years at sea BP’s Deepwater Horizon oil rig suffered a series of spills, fires — even a collision — due to equipment failure and other problems. If Mr. Butter wants to dispute the facts, he should provide some documentation.

One last point: Mr. Butter has said that if BP is made to pay for the damages to the Gulf that that will bad news for everyone in America who drives a car because it will make oil more expensive. But the big picture is that it will be good news for the whole world, if we will only allow ourselves to learn from this disaster.

The larger lesson here is that drilling for oil is a dangerous business and that oil is a finite resource that we must transition away from. America holds less than 2 percent of the world’s oil reserves but consumes more than 20 percent of the world’s oil. We know, and we’ve known, that our addiction is unsustainable.

Americans have talked for decades about ending our dependency on fossil fuels and for decades we have failed to embrace clean energy. Now there’s an opportunity to seize the moment. If we do it will be good news not only for the world, but for our children and for our children’s children.

Lucia Graves writes “Stupidity does not even Cover It”. That of course is absolutely correct; the question though is whether stupidity is criminal?

Yes Lucia, of course you know that there are no Walruses in the Gulf of Mexico, and after looking it up on Wikipedia I know that too!! The question is, why didn’t BP know that, and why didn’t the Minerals Management Agency who reviewed and approved BP’s HSE manual pick that up?

There is no doubt that cluelessness is very dangerous, for example after nine years of war in Afghanistan we hear this:

America’s most senior intelligence officer in Afghanistan, Major General Michael Flynn, has criticised information gathering in the country, branding US spy agencies as “clueless” (Jan 2010).

http://www.telegraph.co.uk/news/worldnews/asia/afghanistan/6935138/US-military-chief-brands-Afghan-intelligence-mission-clueless.html

What I’m wondering is whether the degree of cluelessness in that war is increasing or decreasing over time. Given for example that the number of coalition troop casualties this “Killing Season” looks as if it will reach all all-time record. http://www.marketoracle.co.uk/Article21194.html

But perhaps the level of cluelessness is “improving”, certainly no one has come up with a scheme like the Weapons of Mass Destruction or the Rumsfeld bunkers for ages. http://www.youtube.com/watch?v=FGhGHxw0mSo. Although Richard Holbrooke’s pet idea to end the war in Afghanistan by planting pomegranate trees, does suggest that cluelessness might be re-emerging.

Cluelessness is dangerous for anyone unfortunate to be in the vicinity. Like the fishermen in the Gulf of Mexico, or the 30,000 Afghani women and children who got the “Hellfire” treatment because the US “Intelligence” had determined that they had “links to Al Qaeda”.

On a more mundane subject,  anyone who has been following the credit crunch has to be asking themselves, well wasn’t someone who bought a synthetic CDO from Goldman Sachs in April 2007, betting that US house prices would go up forever, perhaps a little “clueless”.

Perhaps it’s something in the water, or the quality of television these days, or the Internet perhaps? Oh dear, now that’s scary, perhaps it’s linked to you-know-who, perhaps they are behind the epidemic of cluelessness?

But of course, in America “safety” is paramount. But there is a difference between the type of safety where someone (preferably with a lot of money), can be singled out for blame when something goes wrong, and the other sort of safety.

The “system”, not just in America, is rigged so that there are lots and lots of rules, the more rules the better. And as soon as someone is found to have “violated” one of the rules, well that’s it; all hell breaks loose as the lawyers fall over each other pointing out what “should have happened and what could have happened”.

And why the perpetrator must pay, the most seductive of all words, for their “criminal” liability.

But there reaches a point, where the rules are simply put in place so that the lawyers and the politicians can have more ammunition to play their games.

You can tell when that happens because the focus shifts, not from a consideration of the balanced needs of a society or an economy, but to the advantage of people who can play the game.

That when the emphasis shifts, as was noted in the James Baker III, report on  BP management, towards “occupational safety” (i.e. slips-trips-and-falls, driving safety, etc.) versus “process safety” (i.e. design for safety, hazard analysis, material verification, equipment maintenance, process upset reporting, etc.).

And it’s much easier to pinpoint “occupational compliance” (if someone slips on a banana skin that gets reported as an “incident”), than “process improvement” when what you are talking about is preventing something really bad that could have happened, happening (like a silly war or a credit crunch), and if it didn’t happen then who would know?

Here’s an example, anyone who knows anything about cardiovascular disease or nutrition knows that trans-fatty-acids are an absolute killer, they kill more people every year than smoking ever did; and they are everywhere. Last year, McDonalds finally agreed after years of lobbying, to take trans-fatty acids out of their offerings…but only in America.

The problem with trans-fatty acids is that you don’t drop down dead when you eat some, it takes years. And so no research is funded, no regulation is put in place, and America, which has one of the highest levels of consumption of trans-fatty acids in the world, has the highest level of cardiovascular disease.

Is that criminal?

Probably not, but it’s certainly clueless.

Lucia Graves makes some great points about how “process” safety got shoved aside for “box-ticking” safety, in BP.

For example, how decisions on the number of centralizers were made in spite of advice from the specialist sub-contractor. I just wonder if the HSE fairy signed off on that decision…probably he wasn’t even asked; and although it’s not proven that was the cause of the disaster, it illustrates contempt for anything except cosmetic HSE polices.

Then there is the story of Engineer Abbot who says he was fired for making a fuss about HSE issues, although that is less convincing.

Citing “safety” concerns is a good way to frighten a company into paying you off with a generous settlement, and it’s something that unions use all the time. But the “concerned” Citizen Abbot didn’t report his concerns to the Minerals Management Agency, and everything is all “I said – he said”, there is nothing written down.

So perhaps Abbot is a criminal? He says he “knew” that BP were clueless but he did nothing. Or is he coming forward after the event to get some work as an “expert witness” for the prosecution at $3,000 a day?

BP in the other hand, were simply clueless, of that there is no question, there is no malice of forethought in that, and so that’s not criminal.

I’ve been around the sort of “company men” that work for operations like BP for years (as a subcontractor), and I’ve always wondered how it is that people so devoid of initiative and imagination can have such well paid jobs.

Now I understand, there is a policy to put the clueless in charge.

So if anything goes wrong, they can plead “The Clueless”.

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.

We agree that BP’s response plans were not very good. Stupidity, however, does not begin to cover it.

As Hurricane Alex rolled into the Gulf disrupting oil spill response operations this summer, Rep. Edward Markey (D-Mass.) revealed that BP made no mention of the words “hurricane” or “ tropical storm” in its storm contingency plan. That isn’t a case of stupid; it’s a case of neglect.

“The BP plan had walruses in the Gulf, but no hurricanes,” Markey said in a statement. “Walruses haven’t been in the Gulf in a few million years, while a hurricane is just a few hundred miles from the spill site right now. This is yet another example of BP serial complacency.”

Beyond complacency, BP has strategically and repeatedly chosen profits over prudence. A leaked email written by BP engineer Brian Morel six days before the Deepwater Horizon explosion describes some of the risky, cost-curbing decisions that led to the disaster.

Morel wanted BP to use a protective “liner” around the well that would prevent gas from surging up the pipes and exploding. The problem wasn’t unheard of, in fact Deepwater Horizon had to be shut down in April to deal with this very type of surge. But the company chose not to install the sheath because it would have cost them anywhere from $7 million to $10 million.

Other examples of BP’s risky negligence were cited by Reps. Henry Waxman and Bart Stupak in the letter I mentioned previously, which was sent to Tony Hayward before he came to testify on Capitol Hill. When Halliburton recommended the metal tube running down the center of the well be positioned using 21 centralizers, for instance, BP opted to use just six centralizers, cuttings costs and increasing chances of failure.

In the case of BP’s Atlantis deepwater oil rig, a project control supervisor was actually fired for expressing concerns about the safety of the operation.

“I got a lot of pressure from the lead engineers and from the managers saying, ‘Don’t do that; don’t push so much; we don’t want to mess with that,’” Abbott told me in an interview. “I feel like the real reason I was fired was because I was trying to raise a safety issue, and you know BP has a long history of getting rid of people who try to raise safety issues. I was one of those victims.”

As I reported in the Huffington Post, in September of 2008, Abbott was warned by his predecessor, Barry Duff, that “hundreds if not thousands” of Atlantis’s documents had not been approved or finalized, and that it could “lead to catastrophic Operator errors.”

Duff had reported these concerns to management, but nothing had happened. “They didn’t want to spend the money to fix it,” Abbott said. “I think [Duff] was unhappy.”

For months, Abbott worked to obtain BP engineer-approved drawings with little, if any, progress. “The more I insisted that we had to develop or obtain them, the more unpopular I became,” he said. Hostilities mounted until he was fired on February 5, 2009.

“I was told that it was a reduction in force due to a slowdown on the Atlantis project, but I was the only person laid off,” Abbott said. “Three weeks before, the BP managers of Atlantis had told the whole rig nobody was going to be laid off, that there was plenty of work to do.”

Abbott said he thinks BP’s lax attitude toward safety regulations extends beyond Atlantis.

“From my experience working in the industry for over 30 years, I have never seen these kinds of problems with other companies,” said Abbott. “Of course, everyone and every company will make mistakes occasionally. I have never seen another company with the kind of widespread disregard for proper engineering and safety procedures that I saw at BP… BP has a culture which simply does not follow safety regulations. From what I saw [at Atlantis], that culture has not changed.”

The 1990 Oil Pollution Act says that companies must have a “plan to prevent spills that may occur” and must have a “detailed containment and cleanup plan” for oil spills.

Well BP did have a plan; in fact they had books full of plans.

They had two plans for the Horizon drilling rig; one to prevent it from blowing up, and second “detailed containment and cleanup plan” for if it did blow up.

And those plans were approved by Minerals Management Agency, who kept a beady eye on them to make sure that they were sticking to their plan. And if the MMA had seen anything that might have led them to suspect there was criminal activity being perpetrated under their noses, they would have done something about it.

It turns out that BP’s plans were not very good plans.

Evidence for that is the rig blew up and by the admission of BP’s CEO, they did not have the “tools” to either fix the flowing oil (hopefully that’s been sorted now), or to adequately deal with the amount of oil that got spilled.

That’s not “criminal”, that’s just a pretty useless plan. But no one said it had to be a “good” plan, they just said it had to be a plan.

The fact is was not a very good plan should not be a big surprise – from Wikipedia:

In early 2007 a independent study of safety commissioned by BP ordered by the Chemical Safety Board (CSB) and headed up by James Baker III, found that  BP management had not distinguished between “occupational safety” (i.e. slips-trips-and-falls, driving safety, etc.) versus “process safety” (i.e. design for safety, hazard analysis, material verification, equipment maintenance, process upset reporting, etc.).

And that the metrics, incentives, and management systems at BP focused on measuring and managing occupational safety while ignoring process safety. BP confused improving trends in occupational safety statistics for a general improvement in all types of safety.

What went wrong on Horizon Deepwater was about process safety, the fundamental mistake was one of design. Whether it was the design or configuration of the Blowout Preventer (BOP), the cementation job, or the processes that were followed; they were (evidently) not “fail-safe”.

Put that into plain English, when your safety regime is manned by people with a certain amount of experience, but who have been proven to be pretty much incompetent at just about everything, so they get the dead-end box-tickers job, going round catching people smoking and generally irritating people with piles of forms to fill in, like the “Nanny State” on speed, you don’t get “process safety”.

But that’s not “criminal”. Stupidity and incompetence are not considered criminal in America, if they were half of the bankers in America would be in jail.

One thing though is that the “plan” laid out in 1990 Oil Pollution Act was a lousy plan too. That plan was that the oil-drillers should have a “plan” but that focused on “occupational safety” (long lists of small slip-ups and boxes to tick), rather than design, and they took on the job of reviewing the plans, and approving them or dissaproving them.

That’s a plan made by people who don’t know how to make good plans, which is no different from the BP “plan” (or the new Financial Reform Plan for that matter).

There is no evidence that any of the managers in BP who followed their understanding of “The Plan”, conceived in their minds that they risked blowing up the rig and polluting millions of square miles of ocean.

So sure that’s stupid, but it’s not criminal; at least not in the way the law is currently structured in USA.

Greetings readers, and thanks to the editors at Public Square who invited me here today. Do BP’s actions with regard to Deepwater Horizon constitute criminal negligence? Unless criminal negligence can be proven, all BP will be legally liable for is the $75 million guaranteed by the 1990 Oil Pollution Act — that doesn’t even begin to address the damage the company has caused. And while BP has agreed to set up a $20 billion escrow account, the administration should not have to rely on BP’s good will.

There is ample evidence to suggest that BP’s record constitutes criminal negligence. Whether it can be proven in court, however, is another matter. The legal battle over the Exxon Valdez oil spill of 1989, for example, spent 20 years in the courts and the verdict relied heavily on the fact that the captain was drunk.

Tony Buzbee, a prominent Houston attorney has signed testimony saying top managers at the Deepwater Horizon’s platform knew about structural problems with the rig before it exploded. And it has been widely reported that BP’s drilling engineer wrote to higher ups about significant engineering problems calling the well a “nightmare.” Reps. Henry Waxman (D-Calif.) and Bart Stupak (D-Mich.) explained in a letter to BP CEO Tony Hayward: “In spite of the well’s difficulties, BP appears to have made multiple decisions for economic reasons that increased the danger of a catastrophic well failure. In several instances, these decisions appear to violate industry guidelines and were made despite warnings from BP’s own personnel and its contractors. In effect, it appears that BP repeatedly chose risky procedures in order to reduce costs and save time and made minimal efforts to contain the added risk.”

As I’ve reported elsewhere, despite a clear public record to the contrary, BP is continuing its public relations effort to define the blowout that has been spewing oil into the Gulf for nearly three months as an isolated departure from a record of safe and sound practices. The latest BP executive to parade out the claim is Bob Dudley, BP’s Gulf Coast Restoration Organization director, who told PBS’s Ray Suarez that other than the obvious belching counterexample, “there is nowhere that I believe that there was a systematic lack of emphasis and attention to safe and reliable operations for our people and equipment.”

Bob Dudley said in a PBS interview that claims against BP’s safety record are dated and tied to a single accident — the Texas City refinery explosion that killed 15 people in 2005.

But reports show BP has a long track record of egregious safety violations. An analysis by the Center for Public Integrity found BP refineries produced 97 percent of all flagrant violations reported in the refining industry over the past three years. Jim Morris and MB Pell report:

BP received a total of 862 citations between June 2007 and February 2010 for alleged violations at its refineries in Texas City and Toledo, Ohio.
Of those, 760 were classified as “egregious willful” and 69 were classified as “willful.” Thirty of the BP citations were deemed “serious” and three were unclassified. Virtually all of the citations were for alleged violations of OSHA’s process safety management standard, a sweeping rule governing everything from storage of flammable liquids to emergency shutdown systems. BP accounted for 829 of the 851 willful violations among all refiners cited by OSHA during the period analyzed by the Center.

Top OSHA officials told the Center in an interview that BP was cited for more egregious willful violations than other refiners because it failed to correct the types of problems that led to the 2005 Texas City accident even after OSHA pointed them out. In Toledo, problems were corrected in one part of the refinery but went unaddressed in another. Jordan Barab, deputy assistant secretary of labor for occupational safety and health, said it was clear that BP “didn’t go nearly far enough” to correct deficiencies after the 2005 blast.

In 2007, BP paid nearly $21 million to U.S. officials for multiple safety violations and reckless behavior. Much of that sum was paid in October of that year, when BP plead guilty to a misdemeanor violation of the Clean Water Act; the company agreed to serve three years probation, pay $4 million to the National Fish and Wildlife Foundation to support research and activities on the North Slope, pay $4 million in restitution to the State of Alaska, and pay a $12 million fine for spilling 200,000 gallons of crude oil onto the Alaskan tundra in March 2006. The same month, BP was also sued for $41,000 by the Minerals Management Service for various safety violations and paid a $6,350 fine for failing to perform adequate corrosion protection inspections at three underground gasoline storage tanks. In June 2007, the Michigan Department of Environmental Quality fined BP another $869,150 for leaking underground gasoline storage tanks.

CEO Tony Hayward came onboard in May 2007, but BP’s safety record did not improve.

In 2009, OSHA fined BP a record $87 million for more than 700 safety violations at its Texas City refinery – a long 4 years after the explosion Dudley claims “shook the company up” in its approach to safety. OSHA determined that BP was in non-compliance with the settlement agreement, finding 270 “notifications of failure to abate” and 439 new willful violations.

In 2010, BP paid over $3 million in fines for 42 willful safety violations at its Ohio refinery.

That’s not a standard record, even in the oil industry. Analysis by CPI shows that only one other refinery has received an “egregious willful” citation between June 2007 and February 2010 — and that was a single citation, compared to BP’s 760 during the same period.

I just wanted to add, that I agree with the proposal to allow district courts to control discovery and have early, issue-specific motions for summary judgment.

I don’t think plaintiffs should have to prove their case when they file.  But neither should they be empowered to drag out a meritless case.  To take Twombly as an example:  I think that the case should have survived a 12(b)(6) motion.  But I agree with Ms. Mitchell and Mr. Wallach that the district should have been empowered to limit discovery solely to the question of conspiracy.  Further, I think it appropriate for the district court to limit initial discovery so as to force plaintiff, especially in a claim the seems unlikely to win, to find evidence of conspiracy in a timely manner.

This proposal speaks to my general themes: lets not fix discovery by pleading reforms and lets have contextualized fixes aimed at where real harms exist as opposed to blanket pleading changes that may well do more more than good when applied to a whole host of cases.

We want to be clear that the burden of discovery is borne by a wide array of defendants, not just antitrust defendants.  We focused our previous discussion on the burdens of antitrust cases because that is what Twombly was addressing and Professor Mulligan said his arguments bore on both Twombly and Iqbal.  One case we just had was neither an antitrust case, nor a mass tort case, but the discovery extended over almost a decade and the burdens of discovery were extraordinary, only to have the jury acknowledge at the end that there was no merit to plaintiffs’ claims.  It is likely true that the discovery in a smaller cases is smaller, but defendants in smaller cases oftentimes have less means to pay for that discovery than the defendants in big litigation.  For an individual defendant, the cost of a half-dozen depositions can be ruinous, especially in the current economic climate.  It is not right to put a defendant, whether big or small, to the burden of discovery when plaintiff cannot plead actual facts which, if taken as true, show that he or she is entitled to relief.

 Additionally, discovery costs are not the only costs incurred in litigation.  Once a complaint proceeds beyond the pleading stage, the next exit for defendant is summary judgment.  That alone can be a very expensive production, requiring the amassing of declaration and evidence, as well as a carefully crafted brief.  Pre-trial preparations are even more costly for a defendant who foregoes summary judgment.  All of these matters and the uncertainties and costs they pose weigh on a defendant to settle a claim, meritorious or not, if it is not disposed of at the outset.  Oftentimes too, litigation can require pulling key decision makers and workers away from doing their daily duties to prepare for an participate in deposition and other court-related obligation.  Or in smaller claims, it can mean that the defendant has to miss work.  This too can take a toll on defendants.  All of these burdens and costs suggest that courts should be wary of liberalizing the pleading standard too readily.

 Although Professor Mulligan suggests that the discovery issue is raised in only a small number of cases, we believe the number of cases where a plaintiff with legitimate claims does not have access to sufficient facts to plead those claims is likely even smaller, if they exist at all.  Rather than letting all claims proceed through full-fledged discovery, it would be better to create an exception to Iqbal that allows a court to order limited discovery and the right to amend, under narrow circumstances.  If a plaintiff could show good cause why the key facts going to a particular element of a claim were under the sole control of defendant and inaccessible to plaintiff, then a limited right of discovery before amendment could be recognized.  Otherwise, the current Iqbal standard should control.  The benefit of such an approach is that discovery could be tailored to fleshing out whether plaintiff has a claim, rather than continuing the Conley practice of opening the floodgates to discovery on all subjects on the flimsiest of allegations.  

Drafting a narrow exception to Iqbal and Rule 8’s requirement that the plaintiff come forward with facts showing that the plaintiff is entitled to relief might well be an appropriate topic for amendment of the Federal Rules of Civil Procedure.  But no such amendment is necessary for the Supreme Court to interpret what the existing Rule 8 means.