The United States has argued that per-barrel CWA fines range between $1,100 and $4,300 per barrel spilled depending on the culpability of the actor and the seriousness of the event. With Judge Barbier already finding BP grossly negligent in the Phase I trial, the company faces an uphill battle even before the CWA trial begins. United States prosecutors are seeking $18 billion in fines and penalties – the maximum fine based on the number of barrels the Government believes were spilled. On November 17, 2014, BP asked Judge Barbier to cap penalties at $12.3 billion, arguing that the EPA could not adjust CWA violations up to $4,300 under the Inflation Adjustment Act.
Instead, BP believes that only the United States attorney general could adjust CWA penalties for inflation, and he did not do so in this case. As a result, the company contends that, at the most, per-barrel penalties should be capped at $3,000 per barrel. At the least, BP contends the cap should be $4,000 per barrel. The United States countered that the executive branch authorized the EPA and the Coast Guard with certain authorities under the CWA, including the ability to issue an inflation adjustment to CWA penalties. In addition, the United States pointed to the fact that these same entities had issued similar inflation adjustments in previous instances.
The stakes do not get any higher than the CWA trial. Billions are at stake. As we draw closer to the January trial date, much pressure will be on federal prosecutors and BP to resolve the case. Whether a resolution actually happens is anyone’s guess, but one thing is for sure: the United States must send a message that there are serious consequences when a company puts profits over the lives and well-being of American citizens.
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