BP agreement violated victims' rights, appeals court says

Marilyn Tennissen May 8, 2008, 8:19am

A federal appeals court has determined that the plea agreement pending between BP and the government violated the rights of the victims of the 2005 blast in Texas City.

On May 7, the U.S. Fifth Circuit Court of Appeals sent the deal back to a federal court in Houston to decide if it should be thrown out because surviving victims of the explosion were not consulted until the after the parties had reached an agreement. The decision leaves the status of the agreement up in the air.

"We are ... disappointed by the appellate court's criticism of the government's good faith reliance upon a court's order approving our approach to meet our CVRA obligations," U.S. Attorney Don DeGabrielle said in a prepared statement. "This case is now before the district court once again and we stand ready to proceed."

The Appeals Court said prosecutors violated the Crime Victims' Rights Act of 2004, which allows victims a say in the process.

In October 2007, BP's North American products division agreed to plead guilty to a felony violation of the federal Clean Air Act, pay the $50 million fine and serve three years of probation for the blast, which killed 15 people and hurt hundreds more.

The plea agreement must be accepted by a judge to be final, and U.S. District Judge Lee Rosenthal has not yet made a decision.

Beaumont attorney Brent Coon and attorneys Paul Cassell, David Perry and Mark Lanie all represent victims and asked Rosenthal to listen to victims' statement before making a decision about the plea agreement.

As the Southeast Texas Record reported in February, after hearing from the victims, Rosenthal found that there were no violations of the CVRA, but her opinion did not addressed other arguments.

But the victims also asked the 5th Circuit Court to reject the agreement and asked that the negotiations between the government and oil company begin again.

Victims argued that the size of the fine was not substantial when compared to BP's profits and also lacks long-term safety monitor at the refinery.

But prosecutors have defended the plea bargain and noted that the $50 million fine was the harshest available under the Clean Air Act, and argued that victims should not be consulted because they were numerous and a leak to the media could impair the plea negotiations and prejudice the case.

"The victims do have reason to believe that their impact on the eventual sentence is substantially less where, as here, their input is received after the parties have reached a tentative deal," a three-judge panel from the Fifth Circuit wrote in an opinion accompanying the ruling.

"The government should have fashioned a reasonable way to inform the victims of the likelihood of criminal charges and to ascertain the victims' views on the possible details of a plea bargain," the court wrote.

BP has paid more than $1.6 billion in legal claims from the 2005 explosion and a fine of $21.4 million to the U.S. Occupational Safety and Health Administration.

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