Consultant Dan
18 June 2010
Halliburton dumps US Congress and oil spill plaintiffs in legal deepwater
This was also published by The Punch.
President Obama’s administration and BP’s critics in Congress will be keen to read the Montara oil spill report that Mr David Borthwick, AO PSM gives to Australia’s Minister for Resources, Martin Ferguson today.
Mr Ferguson has been a staunch defender of the operator of the Montara facility and a proud booster of the oil industry generally. It is surprising then, that Australia is not one of the 17 countries who have offered to help clean up the oil spill in the Gulf of Mexico, according to the US State Department (Although BP has used some Australian resources in the clean up.)
Minister Ferguson is under pressure to release the Montara report quickly, because of the the disaster in the Gulf of Mexico. The Minister’s office has said that he needs ‘a few days’ to read the report, after which it will be put in the public domain.
As Crikey reported Halliburton built the concrete wellhead on both BP Mississippi Canyon 252 well (MC252) in the Gulf of Mexico and the Montara Wellhead Platform at the West Atlas site in the Timor Sea.
Halliburton ranks number 2 among oilfield services companies globally and was ranked as 310 in a Fortune 500 listing, with revenues around US$18 billion. The company is best known for allegations of nepotism, corruption, human rights abuse and overcharging the US military, through its subsidiary Kellogg Brown & Root (KBR), which it sold in 2007. KBR was the business division responsible for military logistics support.
Halliburton’s Tim Probert (President, Global Business Lines and Chief Health, Safety and Environmental Officer) has told the US House Committee on Energy hearings that there was no connection between Montara and Deepwater, but his wording is a matter of some concern.
When Probert was asked if Hallliburton was involved in cementing the Montara wellhead and whether this is relevant to the MC252 failure he replied with an interesting qualification, “We were involved in the well cementing. But what we do know from the public testimony is that a 5-month period elapsed between the time the cementing was completed and that the well control issue took place. [emphasis added]”
Probert continues but the gist is that he refers only to the ‘public testimony’ that his company gave to the Montara inquiry. My understanding is that he was appearing before the House on the basis of his ‘sufficient knowledge’ of technical issues, not merely his ability to inform the House about information already on the public record in another country.
This is curious, because if Probert was confident that there was no connection between Montara and Deepwater, surely he would state this simply and unconditionally. By restricting his assurance to only the public evidence, it raises the question of what other evidence exists.
Accordingly, US plaintiff lawyers will want to get themselves copies not just of the Montara report but of two other sets of documents. The first set of documents consists of the transcripts from the Inquiry plus various emails, technical reports and other documents submitted to the Commission that are public and can be downloaded from the website. A quick search reveals that Halliburton is cited in 70-120 of the publicly available documents.
The second group of documents have been partially or fully suppressed, through the power of 8 Non-Publication Orders. For example, one partially suppressed document (NPO 19 March 2010.pdf) is from a Halliburton service unit called ‘Cementing Services Global’. It is a chart showing activity steps and oversight approvals for the set of tasks ‘Perform Primary Casing Job’. Most of the document has been whited out.
It may be that Halliburton continues to tell US authorities only what it has already put on record about Montara. In this situation, the Deepwater case will spill over into Australian courts, in pursuit of Halliburton.
I am supportive of US plaintiffs seeking justice wherever it takes them, but the proximate responsibility for these disasters might never be adequately determined by US or Australian courts.
Large oil spills and other crimes against our global commons are properly the domain of an international court of the environment, as I have written before. An ICE should have appropriate territorial reach and powers of investigation and sanction.
Postscript 11:00pm Minister Ferguson’s media release about receiving the report came out this afternoon.
It remains to be seen if there are prosecutions as a result of the spill or even whether the Minister will release the whole report.
The Minister says
The Inquiry was not about attributing blame – it was, and continues to be, about understanding and learning the lessons from Montara.
I am concerned that the Minister sees responsibility and learning as an either/or choice.
Wouldn’t it be better to both learn how to prevent future spills and also punish those persons and companies who are legally responsible for the leaking of oil and gas into the Timor Sea, from 21 August to 3 November 2009?
Thanks Fi.
I agree with you absolutely.
Martin Fergie should also be on trial. For protecting criminal activity. Lets blame him, since he refuses to blame anyone.
Marcella, you are on to one of the most intriguing legal principles that we have raised in the climate law discussions.
I’m not a lawyer but I think the ‘duty of care’ was one of the established principles that may be used increasingly in climate litigation.
RSS
Dan, really interesting article and thought provoking. It raises some serious concerns about transparency