'Academic' Scientists Forced to Reveal Private E-Mails in BP Trial
With billions of dollars at stake, BP is using every legal weapon at its disposal in federal court in New Orleans. The central question is: how much oil actually entered the Gulf of Mexico between the time the Deepwater Horizon Well blew out on April 20, 2010 and its final capping on July 15? With fines of $1,100 per barrel for simple negligence and $4,300 per barrel for gross negligence, the federal government has a strong financial interest in maximizing the estimate of the amount of oil spilled.
As part of the BP oil spill trial preliminaries now being heard in federal court in New Orleans, Woods Hole Oceanographic Institute (WHOI) researchers Christopher Reddy and Richard Camilli have been ordered by the court to surrender private e-mails regarding internal debates regarding the validity of their estimates of the flow rate from the BP Deepwater Horizon Macondo 252 well. They were so offended at being forced to document their work that they wrote an op-ed for the June 3 edition of the Boston Globe protesting this as an assault on their "academic freedom." The federal court was not sympathetic to their complaints.
The researchers neglected to mention that while WHOI is a private non-profit institution, it receives much of its funding from the National Science Foundation (i.e., the American taxpayers) and could be in line for increased funding, supplied at least in part by the fines paid by BP, to carry out research in the Gulf of Mexico ecosystem if BP is found liable in the trial.
Late last week, we reluctantly handed over more than 3,000 confidential e-mails to BP, as part of a subpoena from the oil company demanding access to them because of the Deepwater Horizon disaster lawsuit brought by the US government. We are accused of no crimes, nor are we party to the lawsuit. We are two scientists at an academic research institution who responded to requests for help from BP and government officials at a time of crisis. [SNIP]
Because there are insufficient laws and legal precedent to shield independent scientific researchers, BP was able to use the federal courts to gain access to our private information. Although the presiding judge magistrate recognized the need to protect confidential e-mails to avoid deterring future research, she granted BP's request. BP and Coast Guard officials asked for our help to assess the disaster, and we obliged.
We responded by leading on-site operations using robotic submersibles equipped with advanced technologies that we had developed for marine science. We applied them to measure the rate of fluid release from the well and to sample fluids from within the well. We then volunteered our professional time to scrutinize this data and published two peer-reviewed studies in a respected scientific journal. We determined an average flow rate of 57,000 barrels of oil per day and calculated a total release of approximately 4.9 million barrels.
An outside observer might note that these researchers are material witnesses to an alleged environmental crime committed by BP: polluting the Gulf of Mexico with "a total release of approximately 4.9 million barrels" of oil. The Confrontation Clause of the Sixth Amendment to the United States Constitution guarantees that "in all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." If the WHOI researchers are going to assert that BP spilled 4.9 million barrels of oil, the court is going to force them to submit to cross-examination. They are not in the clubby world of "climate science" research anymore; they are in the world of what I have called "maritime law football."
In a report filed by Suzannne Goldenberg of the U.K. Guardian, she noted that former BP engineer Kurt Mix is currently under criminal prosecution for allegedly deleting material evidence in the form of text messages with an unstated BP contractor. We do not know who that contractor is, but it is interesting to note that the WHOI researchers hitched a ride on a BP remotely operated vehicle (ROV) to make their measurements. So it is plausible that among Mr. Mix's correspondents would be Mr. Reddy and/or Mr. Camilli. She wrote:
It also heightened fears among scientists of an assault on academic freedoms, following the legal campaign against a number of prominent climate scientists.
Nonetheless, she quoted Mark Halperin of the Union of Concerned Scientists:
"The Woods Hole scientists saw a country in need and tried to do the right thing, and in the process got burned by a system that does not protect them. And the potential consequences are profound. Sure, scientists might be less likely to ask tough questions of each other in an environment where every sentence they write could be misrepresented," he wrote. "But they will also begin to think twice about using their knowledge to solve pressing and urgent national problems."
Government prosecutors are using the WHOI estimate of an average of 57,000 barrels of oil per day as the basis of its claim for criminal penalties, far higher than estimates by the Flow Rate Technical Group (FRTG) of the U. S. Geological Survey. For some unexplained reason, the link to the FRTG report is now broken. Has the FRTG report been swept down the "memory hole"?
Bruce Thompson wrote the first publicly accessible Management of Change Document that convinced the government to switch from a surface containment strategy to a subsea intervention strategy, implemented as the "static kill" operation, which succeeded in permanently sealing the Macondo well and ending the nightmare being suffered by the residents of the Gulf Coast in early August 2010.