The drumbeat has already started: We can’t afford to indict BP because it would cause a lot of harm to employees and shareholders. The Obama Administration has demonstrated its acceptance of this mindless mantra, and we shouldn’t hope to win real sanctions against this rapacious company. But what are the consequences for the employees of BP who created the mess? “The New York Times” reports that criminal indictments aren’t likely against employees, except at very low levels. That seems odd.

Bmaz explained the basis for criminal prosecution of BP here. He points out that BP has committed several violations of the Clean Water Act. It defines certain acts as criminal if committed by a “person,” and bmaz’s post demonstrates that some person has committed one or more of those criminal acts. That’s where 33 U.S.C. § 1319(c)(6) comes into play:

Responsible corporate officer as “person”. For the purpose of this subsection, the term “person” means, in addition to the definition contained in section 502(5) of this Act [33 USCS § 1365(5)], any responsible corporate officer.

Criminal liability attaches to responsible corporate officers. Courts don’t have a problem deciding how to interpret that term. The Court of Appeals in U.S. v. Iverson, 162 F.3d 1015, 1022 (9th Cir. 1998) discusses the proper definition of the term, carefully reading the relevant Supreme Court decisions, and concludes:

Under the CWA, a person is a “responsible corporate officer” if the person has authority to exercise control over the corporation’s activity that is causing the discharges. There is no requirement that the officer in fact exercise such authority or that the corporation expressly vest a duty in the officer to oversee the activity.

The Macondo well cost tens of millions of dollars, and huge personnel resources. It had to be approved at the highest levels. Any reasonable juror would assume that there would be a thorough discussion of the risks, and the steps taken to deal with those risks. No BP officer with the authority to exercise control over BP’s drilling program insisted on maximizing safety precautions. At every step, those responsible chose the cheapest alternative, not the safest (PDF).

To back up the safe drilling procedures, oil drillers are required to plan for what they like to call spills. As the Minerals Management Service website shows:

The MMS requires such planning through the submittal of either site-specific or regional oil spill response plans (OSRPs). Owners or operators that are affected are those that have facilities located seaward of the coastline that handle, store, and/or transport oil. Before any facility can commence operation the owner or operator must submit an OSRP to MMS for approval. The plan must demonstrate a capacity to respond quickly and effectively should an oil spill occur.

BP filed such a plan. It appears that this plan claims that BP could handle spills of up to 250,000 barrels per day. The monumental current hemorrhage is beyond control at a level far lower.

Here is your expert witness, Rex W. Tillerson, CEO of Exxon Mobil:

Mr. Tillerson admitted that the only way to deal with major spills was to keep them from occurring.

“The point is,” he said, “we have to take every step to prevent these things from happening, because when they happen we are not well equipped to prevent any and all damage. There will be damage. There is no response capability that will ensure that you won’t have an impact.”

Dangerous drilling techniques and no real plan for a blowout. No prosecutor should worry about indicting those who killed 11 people and the Gulf of Mexico, and wrecked the lives of hundreds of thousands. We indict pot smokers, for heaven’s sake.

And it isn’t just the men on the rig who should be given whatever is left of the Miranda warnings. The big men at the top of this company took the giant paychecks, set the policies and didn’t put safety at the top of the agenda. They should be responsible corporate officers.