Friday, June 04, 2010

Why Attorney General Holder should pursue RICO charges against BP

As photographs of the Deepwater Horizon disaster's innocent victims--the dead and dying birds and turtles, the soon-to-be-bankrupt fishing familes and hoteliers of the Gulf states--float across our screens, a number of Americans are calling for the President to show some emotion, to get mad.

I submit that right now, we, the people, would be far better served by reason than by rage.

And reason and logic dictate that the best way to guarantee the most effective, efficient, and expeditious remedies to the widespread damage this disaster has wrought, and the havoc the spilled oil will continue to wreak, is to first guarantee that we, the people, have the funds necessary to bring to bear every conceivable course of action toward making this right, as the nice English man in the advertisement says. Every conceivable course of action: from thorough cleanup efforts of our marshlands, shores, and beaches; to relocation of the threatened wildlife; to fair, adequate, and proper financial support for all citizens whose livelihoods have borne, and will continue to bear, the brunt of this economic catastrophe at a time when all but the wealthiest Americans were already struggling with their bills (or living in drastically reduced circumstances or, indeed, not living in their homes at all.)

Recent history shows us that despite continuing to rake in unimaginably large profits, massive multinational oil companies do not voluntarily--or even grudgingly, upon feeling the gentle pressure of the implied threat of having a stockinged foot brush against their cervical spines--man up, pony up, and "make it right".

I would refer anyone questioning this to the sordid, outrageous story of Exxon Mobil Corp., whose infamous tanker accident in 1989 wrought environmental and economic damages both immediate and immeasurably long-term; who despite, to this day, posting record-breaking quarterly profits in the multiple billions of dollars, engaged in despicable legal tactics over a nineteen-year period, the results of which left the injured parties receiving a paltry $507 million in sum. This insulting amount was only one-tenth of the original jury award, and it was finalized so staggeringly late in the game, some of the plaintiffs had died. (Bear in mind that these damages did not take into account the devastation to body and mind wrought by losing one's livelihood, or, in the case of one Alaska mayor, watching in despair as one's constituents lost their livelihoods and deciding to end one's own life.)

In light of all the aforementioned, I believe there is a strong case to be made for pursing charges, against British Petroleum (BP), under RICO, the Racketeer Influenced and Corrupt Organizations Act.

RICO's requirements are relatively easily-met, focusing as they do on an established pattern of behavior that under US law qualifies as racketeering: namely, a member, or members, of any enterprise found to have committed two of 35 crimes--which list entails 27 federal and 8 state crimes--within a 10-year period, is guilty of racketeering. (Even disregarding the implications of the recent SCOTUS ruling in Citizens, BP does fit the definition of "person"--see paragraph 3 of Title 18, Part I, Chapter 96, § 1961 of the United States Code, which states: “person” includes any individual or entity capable of holding a legal or beneficial interest in property.)

In addition to its criminal provisions, RICO embraces a broad (and in the case of BP, well-deserved and much needed) application of civil charges which may be brought against the defendant. The language--and, I'd add, precedent set by the application--of RICO provide for the recovery of punitive damages that are three times the amount of compensatory damages so awarded.

Viewed solely in terms of their quantity and the timeline over which they were committed, I believe BP's criminal acts to date, including two felonies for which the company is still on probation, provide more than enough to establish a pattern of behavior determinable under RICO as racketeering. To wit:

1999: BP pleaded guilty to the felony crime of illegal disposal of hazardous waste on Alaska’s North Slope and paid $22 million to resolve criminal fines and civil claims.

2005: following the tragic Texas City Refinery Explosion that killed fifteen people and injured many dozens more, BP pleaded guilty to felony violation of the Clean Air Act. The company was fined $50 million and sentenced to three years probation. Thereafter, having found at the refinery some 270 cited but still-unaddressed safety violations--plus 439 new ones--OSHA (the Occupational Health and Safety Administration) levied against BP an additional fine of $87 million, the largest such penalty in the history of the agency.

2007: BP energy traders in Houston, TX, were charged with illegal manipulation of propane prices, which led to the company narrowly avoiding criminal charges and paying, yet again, a record-breaking fine: $303 million total, which included a $125 million civil fine to the CFTC (Commodity Futures Trading Commission), $100 million to the Justice Department, $53.3 million to a restitution fund for consumers, and $25 million to a US Postal Service consumer fraud education fund.

2010: On April 20th, an exploratory Gulf of Mexico oil-drilling platform owned by Transocean Ltd. and operating on behalf of its majority owner BP, exploded and collapsed, killing eleven people and unleashing a torrential and ongoing oil spill into the ocean which continues, unabated, to this day. Geologists, engineers, and oceanographers now describe the Deepwater Horizon disaster as the largest oil spill in human history. Yet in its 2009 exploration plan filed with the MMS (Mineral Management Service), BP repeatedly and confidently downplayed the risk of any such catastrophe; indeed, they told the MMS that it was "virtually impossible, for an accident to occur that would lead to a giant crude oil spill and serious damage to beaches, fish and mammals."

That's at least two criminal convictions, possibly three, and counting. And those are just the main crimes BP committed within America's territories. Time and space constrain this writer from going into the details of BP's history of crimes against man and nature in other countries, but Google assures us there are many.

What other benefits are there to invoking RICO? In addition to the treble-damages specification, the act provides broad framework for initiating criminal forfeiture of BP's real and tangible assets. It even provides for doing so peremptorily, if the government feels reasonably certain it will prevail on the issue of forfeiture.

A nationwide movement toward doing just this is organizing and expanding at this very moment: Seize BP. And it is not, contrary to the blatherings of morning news pundits, fueled by people's irrational anger; rather, the movement exists because citizens know all too well that lies, legal delays, obfuscations, and, ultimately, the very likely re-organization and/or bankruptcy of BP--and the concomitant transfer and hiding of its monetary assets--will undeniably translate to a miscarriage of justice the magnitude of which, like the oil spill itself, will be unprecedented.

Attorney General Holder: pursue RICO charges against BP and seize its assets now.

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