1. INTRODUCTION
Oil spills are human-made disasters. Driven by extractivism and economic reliance on fossil fuel extraction, they cause significant harm to marine life and coastal ecosystems. Dramatic pictures of oil-covered beaches, birds and marine animals are powerful visual representations of the environmental harm inflicted. As chronicled in news media reports to documentaries and a box office film, the 2010 Deepwater Horizon oil disaster was an oil spill of historic scale. Not only has it been characterized as ‘the worst environmental disaster in America’ and ‘the most serious corporate crisis in the oil industry after Exxon (1989) and Shell (1995)’,Footnote 1 it was also a media spectacle.Footnote 2 The United States (US) President underlined that ‘the millions of gallons of oil that have spilled into the Gulf of Mexico are more like an epidemic, one that we will be fighting for months and even years’.Footnote 3 The US government came down on British Petroleum (BP) and its North American subsidiaries, the primary bearers of corporate responsibility for the oil spill. Historic fines, costly compensation schemes, suspensions, probation, and settlements swiftly followed, the details of which are discussed in Section 2 of this article.
Though unique in its visibility and scale, Deepwater Horizon was not an isolated event. In fact, oil spills are perennial disasters, which are strangely tolerated, portrayed almost like unavoidable natural disasters that one simply has to live with. While the US has limited the possible areas by prohibiting drilling offshore, in national parks, in Native American land, and in other protected areas, the centrality and necessity of oil (and oil companies) remains largely unaffected, given the imperative to extract. Hence, disaster mitigation slips into disaster tolerance. Despite its track record, BP currently operates four production hubs and controls 290 lease blocks in the US Gulf of Mexico alone.Footnote 4
It is this fatalism and this practice of disaster tolerance that is the point of departure for our investigation. Extractivism is often applied to the periphery, a governmental rationality of ‘developing countries’, the Middle East or other ‘economies in transition’.Footnote 5 Yet, we contend, the response to Deepwater Horizon demonstrates that extractivism is deeply embedded everywhere, in both the metropole and the periphery, in our mentalities and unconsciousness. We are not coming to terms with the full embeddedness of oil nor with the vast political economy surrounding oil corporations – transnational, state-owned and their variations. In fact, their operations, technologies, and finances are obscured by discussions of the resource curse and ‘oil states’.Footnote 6 Given the violence, displacement, dependency, and poverty implicated in the latter, this multitude of varied harms is not to be lightly disregarded. This article contends, however, that there is room for understanding the damage inflicted by these corporations in a more complex way than the behemoth of ‘Big Oil’ consuming poor states plagued by extractivist rationalities.
The agitation of this realization surrounding oil is soothed by legal instruments and compensation schemes. It appears still to this day that finding alternatives to fossil fuels, and hence mass oil disasters, is harder and less attractive than engaging in denial, minimization, and ‘neutralization’Footnote 7 of the scale and significance of the harm inflicted. Law, in the form of regulation, criminalization and litigation, provides essential instruments for this neutralization by attempting to mitigate some harmful effects while leaving others intact. In this way, by enhancing our capacity to tolerate disasters by managing their harm, law is able to provide the structural underpinning for the continuation of the extractivism-infused relation between oil and society, a relation that is maintained while oil continues to spill at the societal fringes.
We start with the soothing, but ultimately empty, words offered by the US President regarding the Gulf oil disaster, and we take in earnest his proposed task of responding to oil disasters on the basis that they constitute an ‘epidemic’ rather than isolated events or disasters. Our response, outlined in this article, is that we do indeed need to acknowledge an epidemic of harm that goes beyond the environmental harm of oil-soaked beaches and marine animals, shocking as these visuals and disastrous effects may be. We do need to acknowledge the pervasiveness and multiplicity of harms that exposes the global dependence on oil and the rationality of extractivism.
To support and provide evidence for this claim, this article presents the legal response to the Deepwater Horizon disaster, followed by a reconceptualization of the multiple harms inflicted by oil spills, both criminalized and non-criminalized, as well as those inflicted by the culture of tolerance of oil spill epidemics. We use the contrast between legal and social harm analysis to construct an original and much-needed contribution to the expanding field of corporate responsibility for environmental and climate damage.Footnote 8 In terms of methodology, this contribution is based on a combination of a ‘green’ social harm approach, which considers diverse types of harm proliferated by socially injurious institutions, such as oil companies, with the political ecology of Felix Guattari and, in particular, his concepts of the three ecologies and transversality. From these concepts, we develop the concept of transversal harm as a way of understanding the relation between pervasive harm and disaster tolerance.
The article proceeds as follows. Section 2 presents a legal map of the Deepwater Horizon oil disaster, the legal proceedings that emerged from this event, and the liabilities of BP as the primary private economic actor involved in the case. Although a number of private actors were involved in this offshore oil-drilling project, the article focuses on BP as the primary responsible party, following the legal proceedings and enforcement actions stemming from the disaster. Section 3 re-examines the disaster from a social harm perspective, cataloguing the new and multiple harms spawning from the disaster itself, as well as from the legal response, and exposing limitations of legal thought and practice in relation to altering or expanding BP's responsibility, or enabling wider legal or structural policy reforms. In Section 4, building on Felix Guattari's conceptual framework of the three ecologies, we propose the new concept of transversal harm as a way to conceptualize the broader pervasiveness of harm created by oil corporations. Transversal harm transforms the abstract narrative of oil disasters as an epidemic into a material reality. By moving past the criminal and civil damage of corporate crime and negligence already captured by law and regulation, the concept allows for a fuller examination of the overall harm of the operation of these oil corporations, and opens a path towards challenging the cycle of enforcement and disaster tolerance.
2. BP's LEGAL LIABILITIES FROM THE DEEPWATER HORIZON DISASTER
On 20 April 2010, an explosion at the Deepwater Horizon offshore oil-drilling unit, located off the coast of Louisiana in the Gulf of Mexico, resulted in the platform being engulfed in flames and ultimately sinking. Eleven crew members were killed, and oil flowed uncontrollably from the exploratory Macondo well for 87 days. The well was ‘effectively sealed’ on 19 September 2010,Footnote 9 but not before 4.9 million barrels (205.8 million gallons) of crude oil were released into the sea,Footnote 10 making the Gulf oil disaster the largest marine oil spill in history.
BP, through a series of US-based subsidiaries, was the primary leaseholder of the Macondo oil well and owner/operator of the facility, although other corporations were also involved in the drilling, construction, and operation of the platform, as either joint venture partners or contractors.Footnote 11 From the outset, it became apparent that the company faced mass litigation and significant legal liabilities, which, in turn, became significant financial liabilities in the shape of various fines, penalties, and compensation payments. This is in addition to the total clean-up costs of the disaster itself, which amounted to US$14 billion.Footnote 12
2.1. Criminal Liabilities
In 2013, BP Plc reached a settlement with the US Department of Justice and accepted criminal responsibility on 14 counts for its conduct leading to and after the 2010 Deepwater Horizon disaster.Footnote 13 The guilty plea included 11 felony manslaughter charges, one felony obstruction of Congress charge for intentionally misleading statements from its representative regarding the size of the oil spill,Footnote 14 and two environmental crimes of negligent discharge of oil and the unlawful taking of birdsFootnote 15 under, respectively, the Clean Water Act (CWA)Footnote 16 and the Migratory Bird Treaty Act (MBTA).Footnote 17
BP accepted the negligence of the two site supervisors in causing the deaths of 11 people on the platform, as well as their failure to accept the clear test results that indicated that the well was not constructed securely, a defect which eventually caused the blowout.Footnote 18 This acceptance also became a factor in the findings of gross negligence and wilful misconduct in the civil trial. The plea agreement required payment of US$4 billion in criminal fines, penalties, and restitution – the largest criminal resolution in US history at the time.Footnote 19 It also imposed the statutory maximum of five years’ probation, during which BP was to be monitored and required to enhance its safety and risk procedures.Footnote 20
The plea agreement was perceived to be in line with the gravity of the disaster:
[It] imposes severe corporate punishment, appropriately reflects the criminal history of other companies within the BP group of companies, the serious nature of the instant offenses, and the impact of the Macondo blowout and spill on the Gulf Coast and our nation as a whole.Footnote 21
The Attorney General described the guilty plea as ‘a significant step forward in the Justice Department's ongoing efforts to seek justice on behalf of those affected by one of the worst environmental disasters in American history’.Footnote 22
2.2. Civil Liabilities
There were multiple legal bases for BP's civil liabilities: the 1972 CWA, the 1990 Oil Pollution Act (OPA),Footnote 23 general maritime law, as well as tort law provisions from all five US states affected by the disaster. Claimants included private parties, the US federal and state governments, and the US Environmental Protection Agency (EPA). There were claims for clean-up costs, natural resource damage and restoration by the relevant public authorities, and claims by private parties (individuals and businesses) for personal injury, damage to property, and economic loss. These claims were eventually transferred to the US District Court for the Eastern District of Louisiana and consolidated as Multidistrict Litigation (MDL) No. 2179.Footnote 24 The judgment of ‘phase one’ of the trial was delivered in 2014; this conclusively established the facts regarding the causes of the explosion and subsequent spill, and presented a detailed timeline of the whole event.Footnote 25 Building on the criminal case and its plea agreement, the Court found BP culpable and liable for multiple civil offences, standards violations, and breaches of duty.
Regarding the violations of water pollution standards under the US CWA of 1972, the Court found that BP met the thresholds of both gross negligence and wilful misconduct in relation to its operation of the oil platform.Footnote 26 The Court's pointed statements regarding the ‘recklessness’Footnote 27 in the administering and erroneous interpretation of the negative pressure test, as well as in subsequent decisions to proceed as if the test was successful, are quite damning of the lack of safety culture, which was also highlighted in the criminal case.Footnote 28 The Court further noted that the challenging geological conditions for drilling the Macondo well, such as the sea depth at the site, as well as generally the conditions of any offshore oil and gas drilling operation, had imposed on BP a higher standard and duty of care in terms of risk and safety protocols, as a result of the potential magnitude of harm resulting from an accident. The corporation was found to have failed to discharge this duty of care.Footnote 29 Referring to BP's actions, the Court defined its gross negligence as ‘an extreme departure from the care required under the circumstances or a failure to exercise even a slight care’.Footnote 30 Arguably, the 2014 judgment created a precedent whereby ‘when a decision is made to depart from an “accepted practice” only to save time and money, and cannot be justified on any technical or “operational” ground, the decision may well be found to be unreasonable and a breach of the standard of care required’.Footnote 31
This was also the first case of major oil pollution damage from an offshore facility to be judged under the OPA. The Court found that BP was a ‘responsible party’ for the facility's oil discharge and thus for any removal costs incurred by federal, state, and local government, as well as for subsequent damages resulting from this discharge. The OPA imposes a strict liability with a cap of US$75 million, which BP had already waived in June 2010 a few months after the disaster and before the start of legal proceedings. However, the Court ruled that violation of federal regulations did constitute ‘the violation of an applicable safety, construction or operating regulation’ by the responsible party, BP, which would have removed the limitation on liability in any event.Footnote 32
A third category of civil liability was based on maritime law, given that the tort of negligence occurred within the navigable waters of the US. BP's conduct was also found to be reckless under maritime law, and a ‘substantial cause’ of the disaster.Footnote 33 BP was found to be jointly at fault for the disaster with other companies, but apportioned the majority (67%) of liability under this area of law.Footnote 34 The recklessness was serious enough to warrant exemplary and punitive damages, which were only prevented by the Court confirming existing maritime law precedent that prevented the award of such additional damages, unless the ‘operational recklessness and wilful disregard … emanate from corporate policy or that a corporate official with policy-making authority participated in, approved of, or subsequently ratified the egregious conduct’.Footnote 35 This was the only area where BP escaped financial liabilities.
In all other respects the combined findings of gross negligence, wilful misconduct, and a pattern of violations of federal regulations and breaches of duties of care meant that BP became liable for both the maximum amount of civil penalty under the CWA, as well as uncapped compensatory damages under the OPA. Given this outcome, in 2015, BP reached a settlement with all public parties, including the EPA, local, state, and federal governments for US$20.8 billion, in order to prevent the continuation into phase two of the trial. This was, at the time, the ‘largest settlement with a single entity’ in the US Justice Department's history,Footnote 36 with the majority being used for restoration efforts around the Gulf region.
Thousands of claims by private parties, mostly residents and businesses in the region, were generated. Under strong pressure from the US government, a private compensation mechanism was instituted by BP a few weeks after the blowout and ran until August 2010. This was followed by the Gulf Coast Claims Facility (GCCF), a compensation fund of US$20 billion, set up by BP.Footnote 37 In addition to this extra-juridical, private compensation mechanism, BP settled the class action of MDL No. 2179 without a financial limit. Consequently, there were two additional court-supervised settlement programmes for economic losses and medical costs: the Economic and Property Loss Settlement Agreement, and the Medical Benefits Settlement Agreement. These court-supervised settlement programmes processed around 400,000 claims.
2.3. Liabilities to Shareholders and Investors
BP is also a listed company, and its actions leading to and after the disaster resulted in claims and charges in relation to this status. Thus, a legal basis for further legal liabilities arising from Deepwater Horizon was the violation of the Securities and Exchange Act of 1934.Footnote 38 The Securities and Exchange Commission (SEC) levelled charges of security fraud at BP for making fraudulent statements regarding the oil flow from the well in the early days of the disaster, while at the same time having internal knowledge that the flow was higher. These charges extended to standing by such statements and criticizing higher third-party estimates of the oil flow as scaremongering. Another acceptance of charges and a settlement, to the tune of US$525 million, ensued.Footnote 39 This was ‘only’ the third largest penalty in the agency's history.Footnote 40
Because of these fraudulent statements and their effect on share prices, BP was subject to claims by private investors that were grouped under another MDL (No. 2185).Footnote 41 BP settled in 2014 for US$175 million. In addition, foreign institutional investors filed claims against the company, blaming BP's poor safety culture and decisions in relation to the construction of the well for a loss of share value that reached 50% at the height of the crisis.Footnote 42
2.4. BP's Suspension and the EPA Administrative Agreement
As a result of its various failures, violations, breaches, and convictions enshrined in the series of judgments, orders, and settlements, BP and its various North American subsidiaries were suspended by the EPA from pursuing new federal contracts and leases,Footnote 43 although the company's existing contracts and leases were not affected. In order to resolve these suspensions, BP entered into an administrative agreement with the EPA in 2014.Footnote 44 The supervision period under the agreement lasted for five years, until 2019, with the EPA managing the monitoring process.Footnote 45
Under the terms of this agreement, BP agreed to comply with the terms of the criminal probation imposed under the plea agreement in 2013, as well as the SEC Judgment Order of 2012. Conditions included oversight by ‘a process safety monitor charged with further enhancing BP's process safety and risk management procedures to prevent future harm to persons, property, and the environment’.Footnote 46 Further, ‘BP must also utilize a separate ethics monitor charged with improving BP's code of conduct to help to prevent future criminal or ethical violations in BP's dealings with regulatory and enforcement authorities’.Footnote 47 Obligations – in terms of developing, certifying, and monitoring an internal code of conduct, and taking steps to improve the defective corporate culture of its US subsidiaries – were imposed by ‘maintaining policies and/or standards and control processes designed to prevent, detect, and remediate unethical or illegal conduct’.Footnote 48 The agreement also mandated similar changes to corporate governance and regulatory compliance with process safety standards. The amount of external auditing and monitoring mandated by the agreement indicates the problematic state of BP's overall corporate culture.
2.5. Summary of Legal Response
Faced with the full regulatory and enforcement apparatus of the US, BP accepted multiple forms of liability, swiftly settled cases in a shorter time span compared with other oil disasters, and instituted a significant private, extra-juridical compensation scheme for Gulf residents and businesses: the aforementioned GCCF. This is a markedly different response from the gruelling 20-year litigation that followed the Exxon Valdez disaster, which was of a comparable but ultimately a lesser scale.
The total cost of the BP Gulf disaster for BP is roughly estimated to be in the range of US$65–70 billion, with the claims process not yet completed, despite the various settlements. This includes the US$20 billion settlement regarding civil liabilities towards US states and the federal government, US$4 billion in penalties for the criminal liabilities accepted under the plea agreement, US$20 billion for the initial claims facility for individuals and small businesses affected by the oil spill, with the remaining sum used for the clean-up of the oil spill and the settlement of pending claims by the court-supervised settlement programme.
In 2019, BP's annual report still had a section on pending legal proceedings and settlements from the Deepwater Horizon oil spill, but its chief executive officer claimed that BP is now a ‘safer, stronger and more disciplined company’.Footnote 49 The response to the Deepwater Horizon disaster exemplifies what is considered international best practice within the limitations of the law of responsibility for transnational oil companies.Footnote 50 When multinational oil companies have engaged in comparable disastrous and criminal behaviour in jurisdictions with reduced regulatory and judicial capacity, their response has been strikingly different. For example, the Deepwater Horizon practice can be easily contrasted with the decades-old struggle to engage Shell (among other oil companies) in the context of oil spills in the Niger Delta,Footnote 51 which has produced far less beneficial outcomes for the local residents and the Nigerian state. We therefore consider the response of both the United States and BP to the Gulf disaster to be a reflection of the relation between corporations and the state in the US, rather than a reflection of the state of environmental responsibility of the oil industry more generally. This model of corporation–state relations, moreover, is unlikely to be replicable around the world and/or in different political contexts. In addition, BP's response to the Gulf disaster prevented the further development of the law relating to such oil disasters and corporate responsibility, which have become considered best practices and followed or ‘transplanted’ elsewhere.
It should be noted that both the CWA and the OPA, applied in the civil case against BP, were at least partly the results of earlier oil spills and disasters. For the former, it was the 1969 Santa Barbara Oil Spill; for the latter, it was the more well-known Exxon Valdez disaster of 1989.Footnote 52 Despite the BP Gulf disaster trumping these events in terms of oil pollution and environmental impact, the statutory effect was not as radical. The Resources and Ecosystems Sustainability, Tourist Opportunities, and Revived Economies of the Gulf Coast States Act (RESTORE) Act was passed in 2012,Footnote 53 but this did not constitute any far-reaching reform of environmental laws and standards akin to the previous two Acts. It simply aimed to make the civil penalties that BP paid to the US federal government available to the five affected US states to aid the process of restoration. A national commission was established to investigate the disaster, promptly producing a report with a series of recommendations for increasing corporate responsibility for such catastrophic events,Footnote 54 which were not followed.
Hence, the strong enforcement by the US and BP's acceptance of liability produced a discourse of confidence whereby both the regulatory framework and the oil company's position within said regulatory framework remained largely unchanged. This, in turn, had the peculiar side effect of both precluding further significant legal reform and enhancing oil disaster tolerance by the US from a broader cultural and social perspective.
3. THE SOCIAL HARM PERSPECTIVE: MULTIPLYING THE HARM
The legal response to the Deepwater Horizon disaster represents an impressive feat of enforcement by the regulatory and judicial complex, both in terms of the speed of resolution of the claims and overall litigation, as well as of the translation of multiple legal liabilities to a striking amount of financial liabilities. However, this response arguably is not a manifestation of the legal harm principle, which states that environmental law emerges and develops as a response to environmental harm that can be represented and demonstrated in legal terms, for example, in the language of criminal law, or administrative offences or torts.Footnote 55 The creation of new prohibitions, offences and torts as a response to the disaster stalled, unlike the Exxon Valdez disaster of 1989, which resulted in the passing of the OPA in 1990. In effect, the swift legal resolution ensured that oil drilling as an extractivist practice of the energy sector was maintained, and thus enhanced the US disaster tolerance, by confidently consolidating the legal, political and economic structures that would invariably produce further oil disasters.
We argue here that this response and its side effect occurred because the disaster's multiple harms were captured, compartmentalized, and incorporated into a pre-existing legal structure through the use of both public and private law instruments, as opposed to triggering socio-legal and political restructuring. Thus, the conception of harm, environmental or otherwise, is a primary factor not only in the immediate legal response to a disaster, but also in the very conception of oil disasters as environmental and social problems. In this section we seek to locate the multiplicity of social harms, prior to and beyond their incorporation into the regulatory framework, underneath the veneer of ‘success’ and the formal legal language of judgments, settlements, and administrative agreements.
3.1. Beyond Crime: The Social Harm Approach
To move beyond the legal ‘success’, we use the toolkit of the social harm approach. Since the 1990s, studies have combined a critical analysis of the legal framework for environmental protection with an investigation of the enforcement limitations related to the notion of environmental crime, produced by environmental harm and injustice, within a field variously called green, eco, or conservation criminology.Footnote 56 The term green criminology has been most frequently employed to describe environmental crimes, but also more widely ‘the exploration and examination of causes of and responses to “ecological” or “environmental” crimes, harms, and hazards’.Footnote 57 In recent years, the scope of research in this area has shifted from a narrow focus on crime to a broader focus on environmental ‘harm’ and ‘injustice’.Footnote 58 As Reece Walters explains, green criminology is ‘an umbrella term’ under which to theorize and critique developments in relation to ‘environmental and species harm’.Footnote 59 These efforts have aligned with research on social harm more broadly, though they often make reference to ‘environmental crime and harm’Footnote 60 rather than solely to social harm.
Social harm research has been introduced as an ‘alternative focus’ to that of crime.Footnote 61 With the aim of moving away from crime and criminal justice responses and towards social harm and social justice alternatives, a social harm approach focuses on ‘all the different types of harms, which people experience from the cradle to the grave’.Footnote 62 While some of these events will be captured by criminal law, the majority of these will not be seen ‘as criminal and categorised in a variety of different ways from “outcomes of the market economy” to “accidents” or “mistakes”’.Footnote 63
Thus far, a social harm perspective has been applied to physical, financial and economic, emotional and psychological harm, and ‘cultural safety’ – with the latter also being operationalized as cultural harm.Footnote 64 The addition of ‘social’ in considering these harms aims to reflect a long-established critical inquiry, with criminological antecedents, which since the late 1990s has been described as zemiology. The term ‘zemiology’, derived from the Greek word zemia or zemίa/ζημία (damage or harm), emerged to describe the project of expanding the remit of inquiry from legally defined harm and crimes to looking beyond the mere violations of criminal law into a wider range of socially injurious forms of behaviour.Footnote 65
In the context of environmental pollution, a social harm approach helps to understand the broader social impact of certain acts, omissions, or conditions ‘at the individual and community levels’, as well as the broader social processes that generate certain acts.Footnote 66 Hence, zemiological threads of inquiry would extend descriptions of how structures or networks or cultures perpetuate harm to questions of how avoidable harm against the environment, and human and non-human animals, becomes embedded in ‘existing varieties of capitalism’.Footnote 67
3.2. Social Harm Inquiry into Oil Spills
In relation to oil spills, recent zemiological work has highlighted the far-reaching consequences and multiplicity of the harms inflicted. In discussing the operations of Shell in the Ogoni delta of Nigeria, Vicky Canning and Steve Tombs suggest that oil-drilling operations and their perennially associated oil spills and disasters have environmental impacts that are ‘devastating to the region … with some species unlikely to ever recover’.Footnote 68 The harm inflicted in the region is ‘inherently environmental’, yet it also generates multiple harms, which have produced a number of effects, such as that:
[i]llness and skin diseases have increased in the region (physical harms); food supplies have diminished for many local communities to eat or trade (economic and physical harms); some communities living locally have been forced to move … ; The extent of the environmental harms inflicted over decades in the region caused will likely impact on regional ecosystems for generations to come.Footnote 69
Following this approach, we undertake a systematic analysis of the social, including environmental, harm inflicted by the Deepwater Horizon disaster.
3.3. Direct Environmental, Physical, Financial, Psychological, and Cultural Harm
Firstly, the pollution fallout for the surrounding ecosystems along the US Gulf Coast was widespread and unprecedented.Footnote 70 Direct environmental harm included the widespread presence of ‘oil sheen’; the pollution and contamination of the coastline, the sea floor, and the surface water itself; and extensive damage to a significant number of endangered marine species (such as lesions, defects, abnormal lungs, heart defects, and record deaths of dolphins and sea turtles) and to corals.Footnote 71 Estimates of wildlife deaths as a direct result of the oil discharge include one million coastal and offshore birds, 5,000 marine mammals and 1,000 sea turtles.Footnote 72
Multiple direct physical harms to human life were also inflicted. In addition to the casualties on the platform (11 deaths and 17 injured), the workers who participated in the clean-up activities along the Gulf Coast developed prolonged and persistent adverse health effects ‘due to the oil spill exposure even 7 years after the disaster’.Footnote 73 Particularly in relation to the development of long-term illnesses, ‘most of the oil spill exposed subjects had also developed chronic rhinosinusitis and reactive airway dysfunction syndrome’, with new symptoms gradually appearing. To add to these, abnormalities were observed in both ‘pulmonary and cardiac functions’ of those exposed to the oil spill.Footnote 74
Local communities across the Louisiana coastline also suffered multiple harms. Coastal communities, reliant on commercial fishing and tourism, were financially and culturally harmed by the oil spill. Significant portions of federal and state waters were closed to fishing as a result of ‘oiling’, and the overall impact on the industry was estimated to be US$8.7 billion.Footnote 75 According to the Natural Resource Defense Council, lost tourism revenues and ‘brand damage’ to the Gulf Coast economy were estimated to reach US$22.7 billion in the first three years after the disaster.Footnote 76
Furthermore, the Gulf oil disaster hit communities that had barely begun to recover from Hurricane Katrina only five years earlier, compounded by the slow state response to that natural disaster and the discriminatory regeneration that followed.Footnote 77 The disruption caused to lives, work, family, education, and social engagement and the community more widely has been associated with psychological harm: ‘increased symptoms of anxiety, depression, and posttraumatic stress’.Footnote 78 The pre-existing impact of natural disasters such as Hurricane Katrina, compounded by the state and corporate response to these disasters, which fell disproportionally on certain areas and on particular socio-environmental groups, was thus further exacerbated by the harm of the corporate-human disaster of Deepwater Horizon. Significant concerns have been outlined regarding the effects of the legal response, clean-up, and compensation programmes from the perspective of environmental and social justice.Footnote 79
3.4. Environmental and Social Harm Generated by BP's Response to the Disaster
The frantic efforts to mitigate the immediate harmful impacts on the local ecosystems exacerbated existing damage, as more than 1.8 million gallons of toxic chemical dispersants were used,Footnote 80 resulting in significant erosion of deep-water corals caused by the combined toxicity of the oil and the chemical dispersants used in its clean-up.Footnote 81 The mixing of oil with deep seabed sediment to produce deep-water ‘dirty blizzards’ composed of oil particles destroyed a wide variety of marine habitats.Footnote 82 The progressive entry of an oil and dispersant mix into the food chain at the Gulf of Mexico started from coastal plankton and worked its way up to birds, with both localized and eventually multifaceted consequences for food supplies across regions.Footnote 83
Such effects demonstrate the potential harm of ‘pain relief’ measures.Footnote 84 These are enmeshed in a wide network of processes that are set in motion when a criminal offence is reported and corrective action is ordered.Footnote 85 In the context of the Deepwater Horizon disaster, the claims process implemented by BP, as part of the guilty plea, was intended to reduce economic concerns both in the form of a claims process and in the Vessels of Opportunity programme to hire fishing crews to assist with clean-up efforts. At the peak of the clean-up effort, BP had deployed approximately 48,000 workers in the area.Footnote 86 As the money from both the private GCCF as well as the court-supervised settlement programmes flowed into the region, the compensation process led to ‘corrosive communities’.Footnote 87 This is shorthand for the divisions and competition among community members arising from a lack of ‘social connectedness’ and ‘to fears, stress, anxiety, and conflict’, which impaired the ability to recover from the disaster.Footnote 88 In practice, some residents were frustrated with the claims as they felt that ‘the amount of compensation people were given was determined at random, even with identical claim statements’.Footnote 89 Others stated that the Vessels of Opportunity programme took an arbitrary approach to the recruitment of fishing crews.Footnote 90 Finally, many residents complained about ‘spillionaires’ – members of the community who had unfairly profited from payments.Footnote 91 Hence, ‘pain relief’, in the uneven application of ‘relief’ measures relative to the ‘pain’ suffered, and the corrosive effects of compensation structures perpetuated, and in some cases aggravated, social harm.
To this list of additional harms, we can add the effects of politically and morally questionable public relations strategies employed by BP. Shortly after the disaster, it sought to hamper the examination of the environmental impact of the disaster by offering lucrative research grants and consultancy contracts to marine scientists around the US Gulf Coast, under the umbrella of a US$500 million Gulf of Mexico Research Initiative. This funding was provided ostensibly for the purpose of understanding the impact of the disaster and producing a cadre of experts who would testify for BP; however, it was subsequently reported that the grants came with strings attached, namely confidentiality and secrecy clauses that prevented scientists from publishing this funded research, and/or from publishing or sharing the data created, or even communicating with others about their research.Footnote 92 Some scientists believed that this was simply a legal strategy to render these scientists ineligible to testify on behalf of the government in the forthcoming trials.Footnote 93
The social harm perspective thus demonstrates that the Gulf disaster, similarly to many other toxic tragedies, involved a multitude of harms, beyond the immediate physical harm to humans or nature. The above paragraphs have presented environmental and physical harm to human and non-human animals as well as economic, cultural, emotional and psychological harm, making up a complex tableau of impacts stemming from the Gulf disaster. We now proceed in the following section with our zemiological interpretation by introducing the concept of transversal harm, which captures this multitude of harms and expands upon it.
4. THE THREE REGISTERS: TRANSNATIONAL OIL AND TRANSVERSAL HARM
As our understanding of the harm of oil companies expands with the use of the social harm perspective, it invariably comes face to face with the limitations of legal discourse and its exclusionary milieu.Footnote 94 This refers to the exclusion of a wide variety of not (yet) criminalized harms, as well as the compartmentalization of legal thought itself into a variety of sub-fields. This is a central problem for environmental thought, legal or otherwise, which is full of compartments and separate conceptual boxes: climate change, pollution, air quality, administrative law, tort, criminal law, international law, and so on. It does not integrate multiple environmental problems and harms, but instead it seeks to compartmentalize and divide them into manageable ‘tranches’ of regulation. The analysis that we presented in Section 2 of the Deepwater Horizon disaster and the legal response to it is replete with such partitions of legal thought and practice. Civil, criminal, and other liabilities exist within their own rationalities. The social harm perspective in Section 3 elucidated the process of multiplication of types of harm that lack legal incorporation. The next section articulates a conceptual framework for completing this task.
4.1. ‘Non-Centred’ Thought and the Multiplicity of Harms
On the basis of viewing the multiple harms identified from a zemiological perspective, we propose an alternative conceptualization of the nexus between oil, harm, and responsibility, drawing on the work of Felix Guattari – psychoanalyst, social theorist, and activist – who is perhaps best known for his baroque and post-structural collaborations with philosopher Gilles Deleuze.Footnote 95 This conceptualization is anchored in our normative commitment to expand the understanding of harm, beyond both environmental and legal conceptions of the term, in what is called a ‘non-centred’ way, without being bound to the partitions of legal or environmental thought.Footnote 96 This non-centred approach to environmental law and harm goes beyond the conceptualization by criminal law, which associates general ecocentrism and broad criminalization, under the urgent banner of state enforcement, with environmental progress. Therefore, our approach goes further by moving past the very search for any appropriate ‘centring’, whether that would be bios, nature, the Anthropocene, Earth, the planetary, or the wild.Footnote 97
Guattari's The Three Ecologies Footnote 98 belongs to this tradition of non-centred ecological thought that seeks to problematize nature and humanity reciprocally, by regarding ‘“nature” as multiform and as inextricably confounded with humanity's projects and self-understandings’.Footnote 99 There is no ‘centre’ to work from. According to this line of thinking, the meanings of what is ‘natural’ and what is ‘human’ are irrevocably bound to each other; human identity is bound to a sense of what is considered nature, and humanity's constructions of nature depend on its own self-constructions. Therefore, any ecological argument inherently refers to both human society and nature, so centring on one over the other prevents this self-awareness. Thus, the perennial debate between anthropocentrism and ecocentrism loses its force as the ‘leitmotif of ecologism’.Footnote 100
In his essay, Guattari gives a small example of this way of thinking, which remains relevant to this day and to the task of this article. He polemically draws a comparison between the phenomenon of toxic algae in the Venice lagoon and that of 1980s gentrification in New York, arguing for their similarities. Gentrification pushes out families and residents, suffocated by the growth of loft apartments; residents who become like the fish affected by toxic algae growth.Footnote 101 This phenomenon is an intersection of multiple harms, with gentrification constituting a form of toxic pollution with tangible, measurable, and avoidable environmental, social, and psychological harm.
We can add here another, more recent example. The covid pandemic exposed the links underlying the generalized deterioration of countries, where the environment, human health, culture, and the economy suffer and deteriorate in horrific, interconnected tandems. Along with diseases of the physical body, diseases of the mind and of the social body also proliferate. Along with endangered species, human solidarity becomes extinct, with women, youth, non-citizens, immigrants, the marginalized, and unemployed at times demonized and left to experience their own nightmares at the fringes. Thus, we have observed how the pandemic produces a type of transversal harm, cross-cutting at the intersection of multiple registers of harmful effects. Social harm approaches capture extractivism – which is not located solely in the so-called periphery and fringes of the global system, but infiltrates and saturates the life of human and non-human beings across the world – in similar ways; the non-centred approach of Guattarian thought will develop further in this section.
This type of non-centred approach is important, because a different, non-centred conception of environmental values leads to an alternative conception of harm – environmental, social, or other – which would, in turn, have an effect on law and the regulation of disaster tolerance. Cultural harm can be used to highlight a culture of corporate anthropocentrism, which manifests against ecocentrism and ecocentrist moves. It has been argued, for instance, that the cost of banning BP from participating in oil drilling would translate into a loss of jobs and income for families, as well as loss of competitiveness for the region. Animated by contemporary culture wars, then, evaluations of harm – that is, the harm of corporate anthropocentrism set against the harm of ecocentrism – reduce complex issues to mere antagonism.Footnote 102 So, the transition from identifying harm to apportioning responsibility is not assisted by the classical division between anthropocentrism and ecocentrism. Indeed, this leitmotif of the search for the right and appropriate centre is what holds us back, as additional categorizations and hierarchies of harm are concocted in line with a particular and narrow strand of Anglo-American environmental ethics that seeps into our broader understanding of law and society, adding to a cataloguing of harms, complete with implied associated hierarchies.
4.2. The Three Registers
In The Three Ecologies, Guattari places the environmental crisis within the context of a generalized upheaval, deterioration, and implosion not just of the natural environment but also in human modes of life extending across the ‘three registers’ – namely, human subjectivity, social relations, and the environment. For instance, a general crisis, or an epidemic (if not pandemic) are terms that underline the US President's characterization of the harm emanating from the Gulf disaster. With the assistance of Guattarian thought, however, we can take this beyond the scope of soothing narrative leading to an ostensibly successful legal response and intervention. Environmental problems, such as in this case extractivism-fuelled oil disasters, are to be placed in an intersectional continuum, along with poverty, inequality, competitive individualism, consumptive lifestyle, and a whole host of other social issues, as a broad category of problems that relate to the compromised and imploding ‘relationship between subjectivity and its exteriority (whether it is social, animal, vegetable or Cosmic)’.Footnote 103
The general link between environmental subjectivity and environmental law has been examined in the literature,Footnote 104 although such examinations often fall prey to the dichotomy of anthropocentrism versus ecocentrism. Guattari discusses the increasing deterioration of human relations with ‘the socius, the psyche and nature’, which is not a simple result of pollution or the lowering of environmental standards, but also of being ‘accustomed to [a dispiriting] vision of a world drained of the significance of human interventions, embodied as they are in concrete politics and micropolitics’.Footnote 105 Along with the environment, it is human subjectivity that is, according to Guattari, ‘floundering’, as manifested in chronic unemployment, oppressive marginalization and inequality, loneliness, boredom, and anxiety.Footnote 106
An increase in so-called disaster tolerance, with the aid of outwardly effective regulatory interventions – as in the case of Deepwater Horizon – seems apt in such a decaying society. Within this generalized crisis, what is at stake is not an awareness and concern for the environment or for the inherent risks and dangers of continuing fossil fuel extraction, but a broader questioning of ‘the ways of living on this planet’ and their effects on both nature and humanity.
This questioning that Guattari promotes is, to a certain degree, structural; and the structure towards which this questioning is directed is what he called ‘integrated world capitalism’, of which fossil fuel capitalism and its attendant oil disasters form a part.Footnote 107 This term refers to a late stage of post-industrial capitalism, where its rationality moves away from the production of goods and services ‘towards structures producing signs, syntax and … subjectivity’.Footnote 108 Capitalism and the economy in general have, of course, constituted an obvious target of environmental thought and discourse, with the logic of perpetual growth and the absolute reliance on the overexploitation of the natural world singled out for particular criticism. Equally, from a social or political economy perspective, concerns abound regarding surveillance, discrimination, racism, wealth inequalities, and human rights abuses, especially but by no means exclusively at the outsourced and relocated fringes of the system.
Guattari, however, takes this critique further to the third register: that, concerning mentalities and the very formation of human subjectivity, ‘capitalist production not only manufactures commercial goods, but also institutions and infra-individual mechanisms, systems of perception, of behaviour, of imaginary representation, of submission to hierarchies and dominant values’.Footnote 109 For Guattari, capitalism ‘seizes individuals from the inside’ and subjugates them by ‘overcoding’ human activities, thoughts, and emotions – the entirety of human life under an exchange system of instrumental values.Footnote 110 There are some who, at least in capitalist terms, benefit from this process, even if only in the short term. So, ‘the most vulnerable in society are living increasingly insecure and alienated lives’, while those who benefit from the global marketplace are living increasingly secure and powerful lives. For Guattari, ‘exploitative practices that perpetuate a quiet violence on low-income labour and other vulnerable groups such as the poor, women and children’ are engrained in this dominant socio-economic mode.Footnote 111
According to this conception, capitalism is no longer an economic system or an ideology, but a producer of ‘semiotic regimes’: that is, mentalities, models, and diagrams of conduct.Footnote 112 What capitalism ultimately produces is a unifying ‘capitalist subjectivity’, ‘through operators of all shapes and sizes and is manufactured to protect existence from any intrusion of events that might disturb or disrupt’.Footnote 113 Capitalist subjectivity subsumes everything from the most personal to the most global, so ‘that there is no outside … It is intoxicated with and anaesthetised by a collective feeling of pseudo-eternity’.Footnote 114 For example, a process of incentivizing appropriate environmental behaviour on the part of individuals, corporations, and governments represents the goal of neoliberal forms of new governance and regulation beyond the state. Guattarian thought, however, is consistent in its commitment to not separate political economy, subjectivity, and the environmental field.
Environmental crises are thus conceived as implosions in the processes of the production of subjectivity as they become dominated by the uniform capitalist subjectivity. The persistence of environmental problems, such as oil disaster tolerance, is ascribed to the fundamental problem of the social reproduction of forms of behaviour that act as constant sources of problems (not just environmental) in industrial/consumer societies under late capitalist conditions. It is no longer the case that the oil spill itself is regarded as an environmental problem: on the same continuum, the destruction of the local communities along the Florida coastline can be seen as a social problem, while the operational decisions of BP are understood as a corporate problem. That is to say, the concomitant legal separation of these problems into the partitions of environmental law, tort law, and company law is to be avoided. It is also this conceptual separation that in part maintains the illusion of the effective legal response, outlined in Section 2 above.
Consequently, environmental problems coexist with a dangerous homogenization of behaviour and conduct, of the ways by which our modern self is constructed – that is, they ‘can be traced to a more general crisis of the social, political and existential’.Footnote 115 Guattari's ecology is indissolubly linked with his interest in the problematic of the production of subjectivity, which he understands as collective, ‘plural and polyphonic’, rather than a synonym for individuality or identity.Footnote 116 Subjectivity becomes the ‘node’ around which this approach is structured,Footnote 117 using environmental concern as a point of departure for an analysis of the political and economic structures of late capitalist societies that is based on the collapse of boundaries between the internal and external worlds; between our sense of self and subjective personhood and the most abstract global structures and problems.Footnote 118 Using his own critical vocabulary, Guattari explains this wide continuum in the following terms:
[T]he molecular texture of the unconscious is constantly being worked on by global society, that is to say, these days by capitalism, which has cut individuals up into partial machines subjected to its ends, and has excluded or infused guilt into everything that opposed its own functionality.Footnote 119
It is this general crisis, in addition to the particular extractivist practices that fuel it, that, according to Guattari, we must seek to understand and address. Namely, his foundational argument is that action, policy (and, we may add for our benefit here, law and regulation) in response to this crisis should take into account three ‘registers’ and their multiple, indeterminate connections – the environment, social relations, and human subjectivity – giving the essay its title of The Three Ecologies. It would be ‘wrong’ to isolate extractivism within the register of environmental harm and generally engage with these three registers in isolation from each other in a technical, problem-solving approach, without engaging in their complexity and multipolarity, ultimately facing up to the deterioration running across them, from the external environment to the inner self. Instead, it could be argued that Guattari somehow instrumentalizes ecology and environmentalism for the purpose of social change, suggesting that they should be turned into a ‘vehicle for reinvention in social, political and personal life’.Footnote 120 Environmental action is not the end goal, but the medium to achieve a higher quality of subjectivity for both human and non-human subjects.
4.3. Transversal Harm
This Guattarian approach can make significant contributions to the task of reconceptualizing environmental harm and responsibility. Following Guattari, ‘we must learn to think transversally’, in a ‘non-centred’ fashion, across the three registers, and with openness and capacity to take in complex, heterogeneous elements.Footnote 121 As a consequence, firstly, we have to think transversally in terms of the harm produced across the three registers of environment, social relations and human subjectivity; secondly, we have to think transversally in relation to proposals and changes that embrace the multiplicity of social-environmental harm inflicted beyond the anthropocentric and ecocentric divide, as presented in Section 3 above.
If we apply the approach presented above to the Deepwater Horizon oil disaster, we are inevitably drawn to BP, the major oil corporation and transnational private actor in question, and its broader role – across all three registers – given its global standing, resources, and operation. In particular, invoking the third register of Guattari's ecologies, the question to be asked is whether there is additional harm, beyond the immediate damage to the environment and society around the Gulf that become apparent through the social harm perspective, as well as beyond the broader climate-related harm of the oil industry – that is, the continuing global environmental damage of their operation from the perspective of carbon emissions or the climate emergency. The short answer to this question is that the disaster was simply an event within an epidemic; an acute, catastrophic manifestation of a broader system of imbrication between oil and society.Footnote 122 This entanglement is, in fact, the harm we are looking for.
We can move past the immediate harm emerging from a single catastrophic event and merge it with long-standing social harms that, along with the rest of the oil industry, shape human society. Of course, some would argue that it is easy to conceptualize such a generalized harm emanating from the fossil fuel industry in general, and it has to do with precipitating the current climate emergency. However, this move simply adds or replaces a conceptualization of environmental harm – which is geographically and temporarily, and thus jurisdictionally bound to a particular place and/or event with the attendant limitations of the legal framework – with essentially the complete opposite, related to a borderless, placeless globality of a climate emergency, with the attendant limitations of the related international legal framework. Environmental harm is produced via proximity to a particular disaster or accident, proximity to the receiving end of a casual chain of corporate or state decisions: for example, in relation to the placement of the sites of extractivism or in the case of transnational harm and liability relating to the acceleration of the global climate emergency.Footnote 123
Transversal harm avoids the local/global dichotomy and enables us to see the consistent and generalized harm that transnational oil corporations inflict upon our modes of life as part of a system of immaterial production that has evolved beyond the production of goods and services, and their carbon ‘externalities’. Transversal harm signifies the multiple damage caused to the three ‘ecological registers’ – namely human subjectivity, social relations, and the environment – and offers a more nuanced understanding of how environmental harm is no longer contained in previously conceptualized linear ways. Pollution and damage have not only environmental, social, economic, and physical effects, but also those of a cultural, intangible, and psychological nature.
This raises the question of the responsibility, and even liability, that may emerge from such transversal harm. Oil corporations become responsible either for egregious localized, wilful negligence and disasters or for a concerted greediness and avarice leading to global climate breakdown. Harm, in such conceptions, is an exceptional effect. Harm is still produced, under such a conception, as a result of non-standard, illegal, or unethical behaviour on the part of the oil corporation. Such a conception of environmental harm is still underpinned by notions of unlawfulness, criminality, or at the very least immoral behaviour. It is a product of defective or rogue agency of a corporate actor, rather than a defective structure. However, the concept of transversal harm demonstrates that it is not so much the exceptional disaster that stands out in the everyday operation of a transnational oil company, but the everyday operation itself that has harmful effects which extend far beyond the global atmosphere, and into the intangible, unconscious assets of every individual member of society. Therefore, this reconceptualization of environmental harm will require a reconceptualization of the building blocks of responsibility and liability, which will form part of a forthcoming study.
5. CONCLUSION
The economic cost of the Deepwater Horizon disaster was immense, as were the multiple harms it engendered. Instead of decades of litigation, denial, prevarication and obfuscation, there was a swift resolution and assumption of responsibility. The legal settlements, judgments, and agreements that emerged as a result painted a highly damaging picture of BP and its corporate and safety cultures. Some of the compensation was used for environmental restoration around the Gulf of Mexico coast, further strengthening the impression of correcting the wrongs of past negligence, but the economic cost must also be considered in the context of BP's existing profits, resources, and dominant social role. Oil remained at the centre of the social and economic structure. BP continues to extract resources from the Gulf of Mexico. The oil industry survived its major crisis because this crisis was understood as an isolated ecological disaster and corporate failure; it was not perceived in the non-centred, transversal way we have outlined. Consequently, the impressive edifice of legal liabilities, meticulously charted and presented in this article, only serves as a monument to futile legalism and formalism. Laws were implemented, compensation schemes established, settlements reached; nothing changed. Along with BP and the other oil companies that survive and manage such disasters, what persists is the epidemic of oil disasters, their tolerance, the rationality of extractivism extending to the core of everyday life, and the attendant cycle of catastrophe, litigation, compensation, and remediation. The certainty of another oil disaster to come looms over their regulation.
To challenge this cycle, we have proposed the concept of transversal harm, combining the social harm approach and Felix Guattari's transversal three ecologies. This concept aims to capture the collective harmful impact of oil extractivism, from the global to the personal level. It turns the partitioned cataloguing of legally distinct and defined harm emerging from an isolated event into a heterogeneous composite, operating across the three registers of environment, society, and subjectivity. Transversal harm fashions a line that cuts across both standard typologies of harm and the partitions and obstacles of environmental and legal thought. Although disasters are flashpoints that render it visible, such harm is not tied to a particular event, but to the overall existence of oil and the operation of oil companies. Responsibility for such a transversal harm will never be amenable to such facile legal definition and compartmentalization, and will continue to represent a significant challenge for further research.
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