BP Settlement: Devil’s Bargain?
Well, the NY Times has an article out about the BP settlement that would get money to fisherman, shrimpers, seafood processors, hotel and restaurant owners based on proximity to the leak; hence if your restaurant is beachfront, you’ll have an easier time getting funds than a restaurant owner a few miles away. Given that it’s unimaginable that the rate of tourism/customers dropped in direct proportion to number of miles from the leak, this is just the first of many things that seems silly about this settlement. Then again, the point of settlements like this is to get money out and get it out fast.
Which leads to devil’s bargains, such as this: once small businesses sign on to the settlement, they waive their right to sue BP for damages in the future. This is where the question of timeliness suddenly starts to muddle up the power politics. Since the American government, populace, and local businesses are all (nearly — I’m looking at you, Joe Barton) in complete agreement that BP needs to pay up, it would seem like we had BP in a headlock. But because BP doesn’t need to just pay up, but needs to pay up quick, it can snag the opportunity to put in clauses that force those who want a cut of the pie right now to waive away any right to, well, more pie in the future. And those who decide to sue rather than settle won’t see a buck for years. The main problem is that, even if we’re able to estimate the damage done now, there’s no way to tell what the future environmental and economic damages will be.
So because I’m on much firmer ground talking about the body than the environment, but think there’s parallels between the two, let’s shift back to 1960s Germany where over 2,600 children have been born with mild to severe birth defects due to their mothers’ consumption of the pharmaceutical, Thalidomide, during pregnancy. The parents of the affected children, under the crazy and complex German legal system, face up to 18 years of legal trials before they might see any significant change from the drug’s manufacturer, Chemie Grünenthal. In the end they sign a deal with Chemie Grünenthal for a 100 million deutschmark fund (which they need for special medical care, prosthetics, etc) and, of course, simultaneously waive away any future right to seek further compensation.
Of course the problem is that the original settlement couldn’t predict the ways in which their bodies would develop into adulthood, the extra wear and tear they would experience due to their birth defects, the ever-developing technologies they might need, nor quite honestly that they would live so long, as many doctors predicted they wouldn’t make it to middle-age. So, in the past decade there have been movements in Germany, Great Britain, and Australia demanding further compensation from Grünenthal or its foreign distributors to provide for unforeseen bodily damages due to the drug’s impact. Particularly in Germany these demands have been painted as hopeless due to the legal bind of the 1970s agreement, and Grünenthal itself isn’t giving much by way of handout. While the Australian distributor of thalidomide agreed to a surprise $50 million windfall to 45 victims in Australia/New Zealand this summer, in 2008 Grünenthal comparatively offered 50 million Euro… to the over 2,600 affected adults in Germany.
To get back to the Gulf, my point is simple: given that the impact on environment can be just as unpredictable (more so) than impact on body, given how long oil spill damages can last, is it really enough to sign up for the $20 billion and call it a day? Couldn’t we at least chat about writing a settlement that stipulates some consideration for future, unexpected or continuous damages to the Gulf? Perhaps settlements are always written like this (lord knows, I’m no lawyer), yet given that the past hundred years has seen both some of the most damaging man-made catastrophes in human history and an accumulation of data demonstrating long-term impacts, it might be time to rethink the normative.