HOUSTON -- What the BP spill is doing to the Gulf may be horrible, but is it criminal?
On the streets of downtown Houston, office workers weighed in on the disaster.
"I don’t know if it’s criminal," said Josh Cartwright.
"It’s worthwhile to at least investigate it," said Linda Wilson.
And investigate is what the U.S. Justice Department is doing.
"We would be looking at a wide range of things," said U.S. Attorney General Eric Holder at a news conference earlier in June.
The feds are looking for criminal violations of environmental laws, for cover-ups like document shredding, and for lies told about the spill.
To anyone in Houston, might this all sound familiar?
Houston knows all about corporate crime -- think Enron. With Enron, the feds arrested top executives, and some were sent to prison.
But with BP, making a case that its executives broke the law might not be the same.
"Oh, I don’t think it would be the same as Enron. At least the allegations were of an active fraud," said Frank Devlin, a semi-retired attorney who now lectures at the University of Houston Law Center.
For three decades, Devlin was legal counsel for the biggest of the oil companies, Exxon and later Exxon/Mobil. He was there in 1989 during the Valdez disaster that spilled oil on the coast of Alaska.
"The executives of Exxon and Exxon Shipping Co. pleaded guilty ultimately on behalf of the corporation, not individually," Devlin said.
Unlike Enron, where individual executives were arrested and prosecuted, Devlin said the Exxon charges were just misdemeanors.
But in the twenty years since Valdez, the prosecution of environmental crimes has changed.
"It’s gotten more and more focused on prosecuting corporations and when possible looking at individuals who are really responsible," said Tracy Hester, an environmental attorney with Bracewell & Giuliani and a professor at the University of Houston Law Center.
For example, in Beaumont in 2004, two managers at a chemical plant owned by Huntsman were given federal prison terms for allowing a tank to leak benzene and then lying to regulators about it.
"If there’s evidence of concealment, conspiracy, the government is not shy about pursuing criminal prosecutions for environmental violations," said Hester.
As a corporation, BP is already on probation for criminal violations after the 2005 explosion at its Texas City refinery and leaks of its pipelines in Alaska.
Previously, BP has said it had learned from those mistakes.
"We have made real progress in the areas of process safety performance and risk management," BP said in a 2007 statement.
But judging from its oil rig disaster in the Gulf, it could be argued BP didn’t learn enough.
There’ve been suggestions that BP underestimated the underwater gusher, aware that the company’s liability will be figured by how much oil escapes.
There are also allegations that corners were cut to save time and money as the drilling rig fell behind schedule and ran over-budget.
"Gross negligence can amount to a criminal violation at times," Devlin said. "Choices they made about the maintenance of it, everything else, even about the cement that was used."
Federal investigators will dig to find the extent of any shortcuts and the intent of the managers and executives who made the decisions.
But Devlin doubts they’ll find any Enron-style shenanigans.
"You go to jail for destroying documents, why you would take that risk?" he said.
It’s a good question, and one of many that will have to be answered by investigators before the feds can decide if BP’s blowout was a crime.
