In a recent column for The New York Times, Uhlmann, a law professor at the University of Michigan and former head of the environmental crimes section of the Justice Department, maintains that the oil spill - unlikely a result of weather - increasingly appears to have been caused by "negligence or worse in the events leading to the explosion of the rig." So, Uhlmann writes, "Now it's up to Attorney General Eric H. Holder Jr. to ensure that the legal response to the calamitous oil spill in the Gulf of Mexico is better than the emergency response."
Uhlmann notes the entities the government should focus on: BP, Transocean, owner of the drilling rig, and Halliburton, which worked on the creation of the deepwater drilling structure. And if news reports on missed warning signs about the potential for disaster are accurate, Uhlmann writes that DOJ should lodge "criminal charges against BP, and possibly Transocean and Halliburton, for violations of the Clean Water Act, the Migratory Bird Treaty Act and the Refuse Act - the same charges brought in the Exxon Valdez case."
No one thinks BP, Transocean or Halliburton intended to spill oil into the gulf. But given good evidence, the government could argue that the companies cut corners or deviated so much from standard industry practice that they knew a blowout could happen. Or, the government could argue that, even if the initial gusher involved only negligence (a misdemeanor under the Clean Water Act) each additional day represents a knowing violation. Both approaches are untested, because there have been so few oil spill cases - but the gulf disaster warrants trying aggressive strategies.
In 2008 ACS released an Issue Brief by Uhlmann, in which he urged Congress to bolster criminal penalties for the violations of the Occupational Safety and Health Act (OSHA). That Issue Brief is available here.