NEW ORLEANS (CN) – BP cannot force the White House to turn over emails that contain information relevant to how the government tracked the flow of the oil from the company’s broken Macondo well, a federal judge ruled.
Calling its request “a modest initial step down this discovery road,” BP cited allegations from other litigants that it had intentionally misinterpreted the flow rate during last summer’s massive oil spill. Also, because the oil giant will face a fine based on the oil spilled under the federal Clean Water Act, BP said it wants to know how the federal government came up with its numbers.
“BP simply requests access to the email records (including all electronic attachments) of one former EOP employee and three current EOP [Executive Office of the President] employees,” BP wrote in a July 7 letter (parentheses in original).
BP had claimed White House officials were involved in assessing the flow rate of oil from the Macondo well.
U.S. Magistrate Judge Sally Shushan in New Orleans, who is handling evidence rulings in lawsuits over the spill, declined Wednesday to order the government to produce emails from the officials.
“BP has not made a sufficient demonstration of need for the documents,” Shushan wrote in the order. “The U.S. will produce communications concerning source control and quantification between agencies and the EOP.”
BP said it only turned to the court for help in obtaining the emails after its two-months-long negotiation with the government resulted in a July 6, 2011, response from the Department of Justice that the “United States is quite firm in our position that it is inappropriate to search the files of the Executive Office of the President.”
In a 10-page letter from BP attorney Robert Gasaway to the Executive Office of the President, BP stressed the importance of knowing how the government came up with its flow-rate data, noting that “the United States has alleged that BP may be liable for billions of dollars in penalties promised on the volume of discharged oil.”
Understanding the governments’ information would be useful since “other litigants have alleged that BP misstated or falsified estimates of the rate at which oil was flowing from the Macondo well … and the government has publicly announced its own flow rate and spill volume estimates,” BP said.
The company also pointed out that “documents obtained through the Freedom of Information Act (FOIA) requests indicate EOP involvement in the government’s decision-making process, including in key decisions relating to the determination of the government’s estimates of oil spill volumes in advance of its decision to sue BP; … and BP has carefully tailored the EOP discovery it seeks so that it proceeds in a calibrated, stepwise fashion that imposes minimal burdens on the government.”
So far, BP said it just wants access to a few named individuals, including Carol Browner, former assistant to the president for energy and climate change; Jerry Miller, assistant director for ocean sciences at the White House Office of Science and Technology Policy (OSTP); Heather Zichal, the deputy assistant to the president for energy and climate change; and Kathryn Moran, PhD, an OSTP senior policy analyst.
“BP is entitled to learn discoverable facts tending to show whether or not the government itself experienced difficulty in getting reliable answers to the question of how fast oil was flowing from the uncapped Macondo well into the Gulf,” the company had claimed in the letter.
“Significantly, BP does not ask for any discovery from the president, or the vice president, or other high-ranking EOP personnel,” the letter continued. “Instead, as a modest initial step down this discovery road, BP simply requests access to the email records (including all electronic attachments) of one former EOP employee and three current EOP employees.” (Parentheses in original.)
Under the Clean Water Act, a fine would be assessed based on gallon or barrel of oil spilled. BP has said it will pay by the number of days the oil spilled, not by gallon or barrel.
“While BP contends that any penalty may be assessed on a per-day-of spill basis (as opposed to a per-barrel basis), BP is entitled in the meantime to discover relevant information about the United States’ liability and penalty theories, including how the United States reaches its initial and public estimates of the total number of barrels spilled into the Gulf,” the company wrote (parentheses in original).