BPXP’s Statement on Penalty Phase Pre-trial Memorandum
During the penalty phase proceedings, BP Exploration & Production Inc. (BPXP) will show that consideration of the eight statutory factors together weighs in favor of a Clean Water Act (CWA) penalty at the lower end of the statutory range. A purpose of the CWA is to incentivize the most effective response possible, and BPXP’s response was just that. Working with the U.S. government and others, BPXP mounted the largest and most effective response in history, sparing no expense. Despite initially dire predictions, more than four years of data show that the impact was far less than feared and that the Gulf has largely recovered, due in significant part to this massive clean-up and response effort. The U.S. government seeks to dismiss BPXP’s extraordinary response efforts in its pursuit of a penalty that would become a gross outlier compared to all other CWA penalties. If the government is successful, this would undermine a key goal of the CWA by effectively disincentivizing companies involved in future accidents from pursuing the best possible response without regard to cost. BPXP has incurred huge liabilities as a result of the spill, totaling more than $42 billion – an amount that is more than sufficient to deter behavior likely to result in a future release.