By Ronald A. Sarachan and Tracy S. Combs
Editor's Note: This article originally appeared as a Drinker Biddle Client Alert.
Reining in one of the most aggressive environmental crimes prosecutions, a federal district judge has dismissed half of the manslaughter claims filed against two BP officials in connection with the Deepwater Horizon disaster in the Gulf of Mexico.
Rober Kaluza and Donald Vidrine, the two top BP officials on board the oil rig at the time of its explosion in April 2010, had been indicted and charged with one misdemeanor count under the Clean Water Act and 22 counts of manslaughter. The dismissal of half the manslaughter counts is an early victory for both men, and could have a significant impact on their trial. The decision could also have significant implications for environmental crimes prosecutions generally.
Defendants Kaluza and Vidrine were employed by BP as “well site leaders” on board the Deepwater Horizon at the time of the explosion on April 20, 2010, responsible for implementing BP’s drilling plan and procedures at the Macondo well. A second superseding indictment, filed on November 14, 2012, accused the two men of negligently and grossly negligently failing to maintain control of the well in connection with a negative pressure test intended to ensure safe well operations, by allegedly failing to advise onshore engineers of indications that the well was not secure, failing to account for and investigate abnormal readings during the testing, and incorrectly deeming the negative testing to be successful. The indictment further alleges that the defendants’ negligence and gross negligence caused the well blowout and the deaths of 11 workers aboard the Deepwater Horizon rig. The indictment includes 23 counts: 11 counts of involuntary manslaughter, 18 U.S.C. § 1112; 11 counts of “Ship Officer’s Manslaughter” (commonly called “Seaman’s Manslaughter”), 18 U.S.C. § 1115; and one count alleging negligent violations of the Clean Water Act, 33 U.S.C. §§ 1319, 1321. See United States v. Kaluza and Vidrine, Criminal No. 12-265 (E.D. La. Nov. 14, 2012) (superseding indictment). On Tuesday, Judge Stanwood Duval Jr. of the U.S. District Court for the Eastern District of Louisiana dismissed the 11 counts of Seaman’s Manslaughter against Kaluza and Vidrine.
The court’s decision will have a large impact on the subsequent trial of Messrs. Kaluza and Vidrine because Seaman’s Manslaughter under Section 1115 required merely a showing of simple negligence, whereas the surviving involuntary manslaughter charges pursuant to Section 1112 require the government to prove that the defendants acted with gross negligence. Now, to convict the defendants of manslaughter, the government will be required to meet the higher gross negligence standard. The defense successfully argued in their pretrial motion that the Seaman’s Manslaughter statute does not apply to the two defendants because, while they were responsible for oil drilling aboard the Deepwater Horizon oil rig, they were not responsible for the operations of the rig itself. The Seaman’s Manslaughter statute applies to a “captain, engineer, pilot, or other person employed on any steamboat or vessel, by whose misconduct, negligence, or inattention to his duties on such vessel the life of any person is destroyed.” 18 U.S.C. § 1115. The defense argued that “other person employed” encompassed only those with positions of “responsibility for the marine operations, maintenance, and navigation of the vessel,” not for the oil drilling activities. After employing principles of statutory construction, and examining the legislative history and case law applying Section 1115 since the enactment of its predecessor statute in 1838, Judge Duval agreed. Dismissing the 11 Seaman’s Manslaughter charges, Judge Duval held that, “[w]ithout further indication from Congress evidencing any intent to expand the scope of ‘other persons employed,’ the Court finds that the defendants as [well site leaders] are not ‘other persons employed’ under Section 1115.”
The Clean Water Act misdemeanor charged against Kaluza and Vidrine is based on oil released from the Macondo Well into the Gulf of Mexico. The misdemeanor has previously been held to require proof of only simple negligence.
It is not unusual for the government to combine environmental charges with traditional criminal charges under Title 18, as it has in this prosecution. The availability of negligence and especially simple negligence as a basis for environmental crimes prosecutions has always raised a spectre of criminalization of a wide range of ordinary, commonplace environmental violations. Generally, however, the government has brought negligence charges only very sparingly and in certain specific categories of cases, such as cases of extreme harm, such as the Exxon Valdez and now the Deepwater Horizon cases. See Steven Solow & Ronald Sarachan, “Criminal Negligence Prosecutions Under the Federal Clean Water Act: A Statistical Analysis and an Evaluation of the Impact of Hanousek and Hong,” 32 ELR 11153 (Oct. 2002). What makes the Kaluza and Vidrine prosecution unusual is how very far the government has reached in order to bring the charges, attempting an entirely novel expansion of a traditional criminal statute, here the Seaman’s Manslaughter statute, and putting aside very serious issues of causation and other issues. It remains to be seen if this is a precedent for a more aggressive approach to environmental crimes prosecutions generally or merely an exception made for a case of unparalleled environmental harm.
Indeed, the explosion of the Deepwater Horizon and subsequent oil spill has been called the largest environmental disaster in U.S. history. In January 2013, BP pled guilty to 14 criminal counts, including felony manslaughter, and paid $4.5 billion in fines. In addition to Messrs. Kaluza and Vidrine, the Justice Department is also pursuing individual criminal charges against BP employees Kurt Mix, an engineer who worked on BP’s attempts to stop the spill and who is currently on trial in federal court in New Orleans, and David Rainey, a former executive in charge of oil exploration in the Gulf of Mexico, whose trial is scheduled for March 2014. Kaluza’s and Vidrine’s trial is set for June 2, 2014.
For more information regarding the ongoing Deepwater Horizon criminal and civil litigation, or for more information about our environmental crimes and enforcement defense practice, please contact Ronald Sarachan, co-chair of the firm’s White Collar Criminal Defense & Corporate Investigations Practice Group.