It's become increasingly obvious that everything BP says or does at this point is being vetted through the prism of litigation strategy.
While BP struggles to stop the oil gushing from its exploded well in the Gulf of Mexico, lawyers throughout the New Orleans area are gearing up for what could be the biggest environmental and maritime litigation case the nation has ever seen.
Defense firms have been working their oil and gas contacts to position themselves as local counsel for corporations with exposure to the April 20 explosion and subsequent sinking of the Deepwater Horizon drilling rig. And plaintiffs attorneys formed a litigation group and immediately chartered planes to photograph the fire on the rig, began collecting water and air samples, and started advertising to sign up clients. More clients increase the potency of the suit, allowing attorneys to collect more fees.
That's why they initially sent their minions to the Louisiana Coast to bilk poor Cajun watermen out of their ability to sue. That's when they thought the damage could be contained from a financial perspective. That was Plan "A."
"Plan "A" is long since moot.
I would argue that at this point in the disaster the die is cast, and it makes little if no difference to BP's ability to operate as a going concern whether the gushing volcano is stopped now or months from now. The sheer magnitude of the lawsuits is going to be staggering--think of the hundreds of billions of dollars in permanently despoiled property alone. All of these claims will ultimately find their way to BP's door, or the door of their excess insurance carriers.
Which is why it makes sense, from the standpoint of defending itself, for BP not to stop the gushing, and in fact to take half-measures which by their very nature will not succeed, yet prolong the appearance of BP "making an effort." The nature of this type of liability litigation practically demands that BP do this to survive.
If BP were able to stop the flow of oil through either its "top hat," "junk shot," or any of the other creative methods being bandied about, the line of attack at trial would be "Why weren't you able to do this sooner?" That's an argument that BP, with all of its hired experts, can never win. The sole question the plaintiff's lawyers will rely on (in addition to their case on causation of the explosion itself) will be "Was the technology available to stop this a month earlier?" The answer is obvious--yes, it was. Of course it was.
"Then, BP, why didn't you employ that method sooner?"
When automotive manufacturers introduced airbags, they were sued for failing to put airbags in earlier model cars. When construction equipment manufacturers introduced roll bars on their tractors, they were sued for failing to install them on earlier models. When doctors' patients get sick and die, the doctors are sued for failing to make an earlier diagnosis. That is the way product liability and negligence cases work. If BP stops the bleeding now, a key tenet of their litigation defense is lost.
Far better for BP to defend on the grounds that "nothing we tried worked," than to have something actually work, and then be called on the timing. That's why they're drilling that relief well. As we've been admonished ad nauseum by the media, the relief well is the only sure way to stop the flow of oil. In the end, BP will complete the relief well, and point to that as its defense: "See, nothing (else) could be done! How can you hold us liable?" And (and as an aside) you can bet that Chevron, Mobil, and Exxon are all watching how BP handles this very closely, because they know this could happen to them. This type of cataclysmic event presents a common threat to all oil companies--it's their worst fear.
For this strategy to work, however, the corporation must make a show of taking a series of plausible "measures" in order to bolster its defense that "we tried everything, nothing worked." But, understand, these measures must fail. That's why the "siphon tube" method was so useful to them--they can argue that their efforts brought fruit in reducing (not eliminating) the oil flow. See, we're good guys! And no, we can't quantify for you how much oil we saved there, but dammit, we saved some, give us credit!
BP already has armies of lawyers and experts prepared to point the finger as to the actual cause of the explosion, who bears responsibility, and most importantly, who should pay. They are prepared to fight that battle, which will degenerate into a "he said, she said" contest. But BP's goal now is to contain their exposure. The only way to do that is to keep failing until that relief well is drilled.
President Obama never practiced law per se. He was a law professor. Had he practiced law he would probably have better insight into why BP's interests could never be analogous to the interests of the country. Once that well started gushing interminable amounts, the sole interest of BP was and remained BP.
And he might have known that for BP to survive (at this point), the Gulf must die.
