A group of Mexican citizens are preparing the first civil lawsuit in the Mexican courts against British oil company BP for the 2010 Gulf of Mexico oil spill.

The plaintiffs are bringing the class action lawsuit under a 2011 reform of the Mexican constitution that allows a large number of people with a common interest in a matter to sue as a group.

The civil lawsuit encompasses “damages to people living in the area or who own residential and commercial property along the coast, and people indirectly affected” by the spill, lawyer Óscar Preciado, with the law firm Rincón Mayorga Román Illanes Soto y Compañía, told IPS.

Sea turtles are among the larger animal species whose reproduction was hurt by the 2010 Gulf of Mexico oil spill. Credit: Mauricio Ramos/IPS

“Without a doubt, this will set an important precedent. Class action lawsuits have been brought, but in questions relating to consumer, rather than environmental, rights,” said the lawyer, whose firm is representing the plaintiffs.

On Apr. 20, 2010, the Deepwater Horizon oil rig, owned by Swiss-based Transocean Ltd and under lease to BP, exploded off the coast of Louisiana, leaving 11 workers dead and 17 injured. It sank two days later.

By Jul. 15, 2010, when the oil leak was finally sealed, nearly five million barrels of oil had been spilled – only 800,000 of which were recovered – and at least 1.9 million gallons of toxic chemical dispersants had been injected into the Gulf of Mexico.

The spill poses a long-term threat to flora, fauna and fishing resources in the Gulf of Mexico, which bathes the coasts of the Mexican states of Tamaulipas, Veracruz and Quintana Roo, and to tourist sites, although the final extent of the damage is unknown, experts say.

“The government and BP can be sued in Mexico. The government was guilty of omission in this case,” René Sánchez, the coordinator of Colectivas, told IPS. The non-governmental organisation was born in November 2012 to provide advice to organisations and individuals with respect to filing class action lawsuits.

However, the 2011 law on collective action, which allows groups of consumers and PROFECO, Mexico’s federal consumer protection agency, to sue public and private companies, does not contemplate reparations.

The Gulf of Mexico disaster gave rise to a massive class action lawsuit involving more than 130,000 plaintiffs, known as multi-district litigation 2179 (MDL-2179), overseen by federal Judge Carl Barbier in New Orleans.

In January, BP pleaded guilty to 14 criminal counts and was sentenced to pay 4.5 billion dollars in penalties and fines. However, the amount is expected to climb as the lawsuit continues to wind its way through the courts.

The following month, TransOcean was found guilty by a U.S. federal judge of violating the U.S. Clean Water Act, and was fined 1.4 billion dollars.

Barbier set a Jun. 21 deadline for the attorneys to file their conclusions about evidence presented in the first phase of the trial.

In April, the government of conservative Mexican President Enrique Peña Nieto sued BP and other companies in a U.S. court, after his predecessor Felipe Calderón (2006-December 2012) failed to do so.

The government’s lawsuit will fall under MDL-2179.

In 2010, the state governments of Tamaulipas, Veracruz and Quintana Roo, as well as several companies, had brought legal action against BP and TransOcean for damages to the marine environment, the coastline, and local estuaries.

Government agencies in Mexico spent more than 11 million dollars on studies, assessments, lab tests, training and overflights related to the disaster, the state governments argued.

BP Mexico did not respond to IPS’ queries about the government or class action lawsuits.

The dearth of studies on the magnitude of the damages in the Gulf of Mexico has been the Achilles’ heel of the environmental organisations and lawyers involved in preparing the class action lawsuit in Mexico.

“That is the question that has limited us the most,” Preciado said. “The Mexican state has not been very participative.

“The damages will appear over the course of years, and this won’t be easily resolved. But we are not frightened of taking on BP – on the contrary, we are very motivated,” added the lawyer, who is working on another class action lawsuit against Mexico’s state-owned oil monopoly Petróleos Mexicanos (Pemex) involving oil spills in the southeast state of Tabasco.

The class action suit will pose a challenge to the Mexican judges, who are not accustomed to environmental litigation, when it is presented to a federal court in the capital on a date that has not yet been established.

Colectivas’ Sánchez said “we have to see how the judges prepare, and the state of the judiciary’s bureaucracy. One of the first steps is for the plaintiffs to be recognised as a class,” as occurs under the U.S. justice system.

Sánchez is also preparing a collective lawsuit against the eventual approval of commercial planting of genetically modified maize in Mexico.

Despite the 2010 Gulf of Mexico disaster and a September 2008 blow-out on a BP rig in the Caspian Sea off the coast of Azerbaijan – which was covered up – Pemex signed a technological agreement with the British company in 2012 for deep-sea operations in this country’s Gulf of Mexico waters.

“It is an aberration,” Preciado remarked.

The U.S. justice department is blaming BP PLC for the massive 2010 oil spill in the Gulf of Mexico, describing in new court papers examples of what it calls “gross negligence and willful misconduct”.

The court filing is the sharpest position yet taken by the U.S. government as it seeks to hold the British oil giant largely responsible for the largest oil spill, as well as the largest environmental disaster, in U.S. history.

Gross negligence

Gross negligence is a central issue to the case, scheduled to go to trial in New Orleans in January 2013. A gross negligence finding could nearly quadruple the civil damages owed by BP under the Clean Water Act to 21 billion dollars.

The U.S. government and BP are engaged in talks to settle civil and potential criminal liability, though neither side will comment on the status of negotiations.

“The behaviour, words and actions of these BP executives would not be tolerated in a middling size company manufacturing dry goods for sale in a suburban mall,” government lawyers wrote in the filing on Aug. 31 in federal court in New Orleans.

The filing comes more than two years after the disaster that struck on Apr. 20, 2010 when a surge of methane gas known to rig hands as a “kick” sparked an explosion aboard the Deepwater Horizon rig as it was drilling the mile-deep Macondo 252 well off Louisiana’s coast. The rig sank two days later.

The well gushed at least 4.9 million barrels of oil into the Gulf of Mexico for 87 straight days, unleashing a torrent of oil that fouled the shorelines of four Gulf Coast states and eclipsed the 1989 Exxon Valdez spill in Alaska in severity.

Al Jazeera’s Dahr Jamail, who has covered the disaster from the beginning, believes the government’s statement is an accurate portrayal of BP’s actions that led to the disaster, and that it underscores the fact that the impacted areas of the Gulf continue to suffer environmental impacts.

“This filing means that government agencies now stand behind some key allegations made by regional scientists and fishermen,” Jamail said, “And that is that BP isn’t telling the truth when it tries to convince the American people, via an ongoing nationwide PR campaign, that everything is back to normal in the Gulf and that BP is a responsible company. The reality is that the fishing industry continues to suffer, there are ongoing seafood malformations and deformities, and large areas where there is still oil.”

Specifically, errors made by BP and Swiss-based Transocean Ltd, owner of the Deepwater Horizon platform, in deciphering a key pressure test of the Macondo well are a clear indication of gross negligence, the Justice Department said.

“That such a simple, yet fundamental and safety-critical test could have been so stunningly, blindingly botched in so many ways, by so many people, demonstrates gross negligence,” the government said in its 39-page filing.

BP rejection

BP rejects the charge. “BP believes it was not grossly negligent and looks forward to presenting evidence on this issue at trial in January,” the company said in a statement. A Transocean spokesman had no immediate comment.

On Aug. 13, BP urged U.S. District Judge Carl Barbier to approve an estimated 7.8-billion-dollar settlement reached with 125,000 individuals and businesses, asserting its actions “did not constitute gross negligence or willful misconduct”.

The government said Barbier should avoid making any finding about BP’s potential gross negligence when he rules on the settlement. Barbier will hold a fairness hearing on that settlement on Nov. 8.

Barbier should also disregard claims made by BP that minimise the environmental and economic impacts of the spill, the government said, citing environmental harms like severe ill health of dolphins in Louisiana’s Barataria Bay, which saw some of the heaviest oiling from the spill.

Exasperation

The filing does exhibit exasperation on the part of government lawyers. They wrote that they decided to elaborate on BP’s alleged gross negligence because they believed BP was trying to escape full responsibility.

The justice department said they feared that “if the United States were to remain silent, BP later may urge that its arguments had assumed the status of agreed facts”.

*Published under an agreement with Al Jazeera.