This Tuesday, close to five years after an explosion on the Deepwater Horizon oil rig claimed 11 lives and poured millions of barrels of oil into the Gulf of Mexico, a judge in New Orleans will begin his final reckoning for one of the worst environmental disasters in US history.



Judge Carl Barbier has presided over the complex case brought by the US government against the well’s operators and this week will start assessing the final fine BP, the oil company held most responsible for the disaster, will pay.

The aftermath of the disaster has been an ugly affair. The environmental devastation is still being assessed. Scammers have targeted BP, leading the company to set up a “snitch line” for people to inform on those making potentially bogus claims. Barbier has criticised BP for going back on previous agreements. The company has taken out ads characterising itself as a victim of a “trial lawyer bonanza”.

Barbier is probably the only actor in the Deepwater disaster to have emerged with his reputation enhanced. Ed Sherman, a law professor at New Orleans’ Tulane University and an expert in complex litigation, said the case was probably “the most complex of modern times”, involving multiples parties and maritime law, common law and statutory law. “He’s done a remarkable job,” said Sherman.

The legal battle that followed the Exxon Valdez oil spill in 1989 dragged on for over a decade, said Sherman. By comparison, Barbier has moved quickly to resolve most of the major issues that have been brought to his court.

The case has been tried under maritime law, which meant that Barbier did not have to call a jury and could set his own schedule. The judge divided the case into three parts. The first trial looked at who was to blame and whether the disaster had been the result of simple or “gross” negligence. Last September, Barbier ruled BP employees had acted “recklessly” in failing to conduct proper tests of its well, opening BP up to the highest possible penalties for the spill.

Under the Clean Water Act, BP will be fined per barrel.

In the second part of the trial, Barbier assessed technical arguments about the number of barrels spilt into the Gulf of Mexico. Last Thursday, just days before the third phase of the case was set to begin, Barbier ruled BP was responsible for spilling 3.19m barrels of oil into the Gulf. The judge’s decision was substantially less than the 4.19m the US government had been pressing for but substantially more than the 2.45m for which BP argued it was liable.

BP now faces a maximum fine of $13.7bn, $4bn less than the company would have paid if Barbier had taken the government’s assessment. The judge will assess his fine using eight factors set out under the Clean Water Act including the seriousness of the violations, BP’s degree of culpability and the economic benefits realised by the violations.

“I think you’ll see a record-setting penalty,” said Dan Jacobs, a professor at American University’s Kogod School of Business and a former Justice Department lawyer dealing with environmental cases. “This is the worst environmental disaster in US history, at least according to the president. A major underlying rationale for imposing a substantial fine in a case like this is it’s deterrent value.”

BP will fight hard to minimise that bill, arguing it has already paid $42bn in oil spill costs – other penalties are another of the eight factors Barbier will assess. One of BP’s lead lawyers, Andrew Langan of Kirkland & Ellis, said: “We look forward to presenting our case at trial. As we have said in all our submissions to the court, we believe that based on the evidence to be presented and the application of the eight statutory factors, BP should be subject to a Clean Water Act penalty at the lower end of the statutory range.”

After Barbier delivers his verdict, BP will have the right to appeal. And if BP doesn’t like the ruling, it could be many more years before the final bill gets paid. The aftermath of the spill will last far, far longer.