After five years of litigation against BP for the massive Deepwater Horizon oil spill, the Department of Justice and five states in 2015 secured a record-breaking $20.8 billion settlement against the company to help redress the devastating environmental and economic damage it caused to the Gulf Coast region.
Leading the government’s landmark case against the oil giant, Justice Department lawyers Tom Mariani, Steven O’Rourke and Sarah Himmelhoch had the enormous task of bringing the complicated federal lawsuit to trial and ultimately negotiated the government’s largest-ever civil penalty against a single defendant.
“The team had to navigate complex legal issues as well as deal with many federal stakeholders and five states to arrive at this historic settlement agreement,” said Steven Poulin, the Coast Guard’s judge advocate general and chief counsel. “The magnitude of this task is hard to describe. They did a phenomenal job.”
In April of 2010, the Deepwater Horizon oil rig exploded, burned and subsequently sank into the Gulf of Mexico. Deep below the surface, BP’s Macondo well had a catastrophic blowout that lasted for three months, with oil washing up on 1,100 miles of coastline across the Gulf and creating a plume the size of the state of Virginia.
The spill had a devastating effect on the economy, environment and people of the Gulf region, disrupting ecosystems, covering hundreds of miles of beaches and marshes with oil, and harming marine life and the livelihoods of thousands of people.
In litigating the case, the trio and their team of Justice Department lawyers handled three separate phases that ended up holding BP grossly negligent for the blowout of the offshore oil well. They documented that almost 134 million gallons of oil were discharged into the Gulf of Mexico during the crisis. They also provided detailed evidence to demonstrate the extensive damage to the environment, marine life and communities in Alabama, Florida, Louisiana, Mississippi and Texas.
Mariani, O’Rourke and Himmelhoch and the DOJ team reviewed hundreds of thousands of documents, handled 500 depositions, engaged in lengthy trials with complicated facts, spent countless hours in settlement negotiations, coordinated with the five Gulf Coast states and multiple federal agencies, and kept track of some 3,000 private party and state and local government lawsuits related to the spill.
“The scale of this case, the number of people involved and the amount of injury that took place was huge,” said Lois Schiffer, general counsel of the National Oceanic and Atmospheric Administration. “They were under a lot of pressure and very difficult circumstances, but they navigated the case to a highly successful conclusion for the benefit of the public and the environment.”
Bruce Gelber, a deputy assistant attorney general at the Department of Justice, said the 2010 oil spill was “the largest environmental disaster in the nation’s history.” As a result of the work of the three attorneys and their team, Gelber said, “funds will be available for the largest-ever environmental restoration program that will also help communities at risk and the livelihoods of many people.”
Each lawyer played a vital role. Mariani was the supervising attorney, coordinating every aspect of the case against BP.
“Tom was the point man, making sure everything was working. He had the big picture and was involved in the strategy. He was a critical player in every aspect of the case, including settlement negotiations,” Gelber said. “There was a lot of pressure, but he was unflappable.”
O’Rourke was the lead trial lawyer, providing day-to-day supervision of the litigation team as well as the broader vision needed to help formulate the government’s theory and presentation of its case. “Steve is a gifted trial lawyer, a great communicator, has tremendous knowledge of natural resources and brought credibility to the effort,” said John Cruden, assistant attorney general of the Justice Department’s Environment and Natural Resources Division.
Himmelhoch had the primary responsibility for handling the massive pretrial discovery, played a major role in negotiating and drafting the final settlement agreement and served as co-lead counsel during the third phase of the trial. “Sarah was a principal sounding board for the case and the master of discovery,” Gelber said. “She is someone who generates automatic respect.”
The agreement calls for BP to pay a $5.5 billion civil penalty under the Clean Water Act, most of which will go to state and federal agencies to restore damaged natural resources. It also includes $8.1 billion in payments under the Oil Pollution Act for natural resource damage restoration; $5.9 billion to cover state and local government claims; $700 million for natural resource damage that might come to light later on; and about $600 million for other claims related to the oil spill.
Mariani said he and his team sought to “show what happened and why it happened in a clear and accurate way, hold the responsible parties to account and uphold the public interest.”
“We knew we would face vigorous opposition because the stakes were so high,” Mariani said. “Our hope was to secure a punishment against the defendants that will help restore the damage and make people think more carefully about how they operate.”