The Video Clip of the Interview Is Available At
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Professor Hester and Adjunct Professor Devlin were interviewed in a news segment that aired on KHOU- 11(CBS-Houston) regarding the possible criminal prosecution of BP Executives. The news clip was posted along with the text of the news story on the KHOU and KENS (CBS-San Antonio) websites and is available at the following link: http://www.kens5.com/news/Will-BP-execs-go-to-prison-over-oil-spill- 96132974.html The video clip of the interview is available at http://www.kens5.com/news/Will-BP-execs-go-to- prison-over-oil-spill-96132974.html and the following article was posted on the KHOU’s (Houston) and KENS (San Antonio) websites on June 11, 2010: Will BP execs go to prison over oil spill? by Dave Fehling / KHOU.com kens5.com 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. Professor Hester was quoted in an column posted on WorldNetDaily’s website, commenting on litigation related to the current oil spill in the gulf. The following article was posted on WorldNetDaily’s website on Friday, June 11, 2010: When Palin agrees with Olbermann Republican reaction to the president's reaction to the crude gushing in the Gulf of Mexico is a measure of how serious the GOP is about checking the spread of big government. Every time I turn around, there's a Republican insisting that the Big "O" take over where Big Oil has (allegedly) left off. This Sarah Palin has been demanding as loudly as James Carville; Rep. Michele Bachmann as urgently as clown Keith Olbermann. The consensus on both sides of the political aisle seems to be that where British Petroleum has failed to stop the spread of the oil slick, the president will prevail. If I didn't know Republicans better, I'd think they were making political hay out of the Deepwater Horizon leak, now in its 52nd day. Fault the president for failing to speak directly to BP CEO Tony Hayward. Or, for heading to the golf course instead of the Gulf Coast. In certain respects, however, Obama's "lackadaisical" approach is not all bad. Think of how quick the POTUS would be to hammer the final nail in the coffin of American capitalism if he and the FLOTUS didn't like to live it up a little. Baiting Barack with a takeover is cruel – to all of us. The meddlers got what they cried for, and then some. Obama will maintain the moratorium on drilling permits for six months. He has also suspended planned exploration drilling off the coasts of Alaska and Virginia as well as on 33 wells under way in the Gulf of Mexico. The hyperventilating over presidential optics – for that is all Obama can be expected to achieve – is that BHO has gone "coastal," says the Washington Examiner's Julie Mason: "Instead of Australia, Guam and Indonesia, Obama heads back to the oil-slopped Gulf Coast next week for two days of squinting at the horizon and getting briefed by local officials. It's a no-win for Obama: If he goes, we wonder why. If he stays away, we go on cable to say he doesn't care." So what does the idolatrous Idiocracy want from its Golden Calf? The Oprah faction confuses righteous indignation with righteousness; it wants Obama to come unhinged. The Disneyland division is hoping that off-shore oil explorer, acclaimed scientist and inventor James Cameron, who "has worked extensively with robot submarines," will help the film directors of BP to plug the oil plume. Cameron's plan includes that liquid metal robot from "Terminator 2: Judgment Day." Obama must realize that there is no way such a plan could fail. 1 Oddly enough, Obama had initially resisted ascribing evil to Big Oil, but was pushed by bigger idiots to so do. The president's previous stance on the spill made more sense to me: "While the government [is] overseeing the operation, BP has the expertise and equipment to make the decisions on how to stop the flow. ... BP is responsible for the cleanup and the government is accountable to make sure the company does it." British Petroleum's incentives to minimize the mounting costs it is incurring are manifestly obvious – all the more so since the company has forfeited the privileges conferred on it by regulators. Yes, regulation encourages recklessness. The oil conglomerate was operating under a federal law that limits liability to a meager $75 million in lieu of economic damages. While the "1990 Oil Pollution Act" does not cap cleanup costs, litigation in excess of the $75 million is predicated on demonstrating gross negligence and willful misconduct in court. Even with the best of intentions, a company is inadvertently lulled into complacency by such state statutes. Regulation is always the culmination of agreements between the regulated and the regulators, to the detriment of those left out of the political loop. The state and its corporate donors will invariably come to a consensus as to what constitutes reasonable damages to them, not to the aggrieved. Thus regulation always works to the advantage of the offenders. The haggling has just begun. It'll be years before harmed parties are made whole again. The Exxon Valdez litigation has only just wound up. Noah Hall of Wayne State University Law School told PBS's Jim Lehrer: "There's going to be a lot of disputes, a lot of litigation, and for many of these claims, the victims really won't see justice for many years to come." The root of environmental despoliation is the tragedy of the commons, i.e., the absence of property rights in the resource. One of my favorite running routes wends along miles of lakeside property, all privately owned, and ever so pristine. Where visitors dirty the trail that cleaves to the majestic homes; fastidious owners are quick to pick up after them. In the absence of private ownership in the means of production, government-controlled resources go to seed. There is simply no one with strong enough a stake in the landmass or waterway to police it before disaster strikes.