Former BP Exec Must Face Obstruction Charge

(CN) - A former BP executive can be tried for withholding key information from a House subcommittee on the rate of oil leaking from the 2010 Deepwater Horizon spill, the 5th Circuit ruled.

David Rainey was British Petroleum's vice president of exploration for the Gulf of Mexico when an explosion on the Deepwater Horizon offshore oil rig set off the worst oil spill in U.S. history.

Rainey was responsible for responding to the House Subcommittee on Energy and Environment, a subcommittee of the Committee on Energy and Commerce, when it requested a briefing on the spill. In particular, it wanted an estimate of the number of barrels per day the damaged rig was spilling into the Gulf of Mexico.

Rainey told the subcommittee that 5,000 barrels per day was the most accurate estimate.

But in fact, Rainey's own estimates indicated that the flow rate was significantly higher than that figure - as high as 92,000 barrels per day.

Internally, some BP engineers estimated that the flow rate was even higher: between 64,000 and 146,000 barrels per day.

Nevertheless, Rainey and other BP executives publicly maintained that 5,000 barrels per day was the "best guess estimate," and rejected a professor's estimate that the flow rate was 70,000 barrels per day.

This estimate became daily more difficult to maintain as more experts made their own calculations as to the rate of oil flowing into the Gulf.

The subcommittee subsequently sent BP a letter accusing it of understating the flow rate, and asking it to explain its methodology supporting the 5,000 barrel per day figure.

Rainey's response omitted key information, including his own flow rate calculations, which would have undercut the company's 5,000 barrel per day estimate.

"The response did not include, among other things, Rainey's Bonn estimates that ranged up to 92,000 BOPD [barrels of oil per day], key parts of the supervising engineer's estimates ranging up to 82,000 BOPD, the supervising engineer's email indicating concern with BP's 5,000 BOPD estimate, and the subsurface engineers' estimates ranging up to 146,000 BOPD," according to the 5th Circuit's June 27 ruling.

A report released in 2011 estimates that the flow rate ranged from 62,000 to 53,000 barrels per day, a total of 4.9 million barrels of oil over 87 days.

The government charged Rainey with obstruction of justice, but a federal judge dismissed the charge, finding that the obstruction statute applied only to congressional committees - not subcommittees.

The 5th Circuit reversed the ruling last Friday, finding "no textual evidence indicating that Congress intended that its own technical understanding of the word 'committee' overrides the text's plain meaning."

Several other people have been prosecuted under the same law for obstruction of a subcommittee's investigation, the court found.

This reading of the law also "coincides with the statute's purpose to deter and punish obstructions of congressional inquiries," Judge Stephen Higginson wrote for the three-judge panel.

The New Orleans-based appeals court also overturned an alternate ground for dismissing the charge, based on the indictment's failure to specifically state that Rainey had knowledge of the subcommittee's investigation.

"That Rainey knew of the pending congressional investigation is imported by [the indictment's] allegations; he spoke with members of the Subcommittee and personally manufactured BP's response to the congressional requests," Higginson wrote. "As a whole, these allegations 'fairly import' the knowledge element. We decline to require the technical use of 'some talismanic phrase' in light of the allegations importing that Rainey knew of the investigation."

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