WASHINGTON — BP's estimate that only 5,000 barrels of oil are leaking daily from a well in the Gulf of Mexico, which the Obama administration hasn't disputed, could save the company millions of dollars in damages when the financial impact of the spill is resolved in court, legal experts say.
A month after a surge of gas from the undersea well engulfed the Deepwater Horizon offshore drilling rig in flames and triggered the massive leak that now threatens sea life, fisheries and tourist centers in five Gulf Coast states, neither BP nor the federal government has tried to measure at the source the amount of crude pouring into the water.
BP and the Obama administration have said they don't want to take the measurements for fear of interfering with efforts to stop the leaks.
That decision, however, runs counter to BP's own regional plan for dealing with offshore leaks. "In the event of a significant release of oil," the 583-page plan says on Page 2, "an accurate estimation of the spill's total volume... is essential in providing preliminary data to plan and initiate cleanup operations."
Legal experts said that not having a credible official estimate of the leak's size provides another benefit for BP: The amount of oil spilled is certain to be key evidence in the court battles that are likely to result from the disaster. The size of the Exxon Valdez spill in Alaska, for example, was a significant factor that the jury considered when it assessed damages against Exxon.
"If they put off measuring, then it's going to be a battle of dueling experts after the fact trying to extrapolate how much spilled after it has all sunk or has been carried away," said Lloyd Benton Miller, one of the lead plaintiffs' lawyers in the Exxon Valdez spill litigation. "The ability to measure how much oil was released will be impossible."
"It's always a bottom-line issue," said Marilyn Heiman, a former Clinton administration Interior Department official who now heads the Arctic Program for the Pew Environment Group. "Any company wouldn't have an interest in having this kind of measurement if they can help it."
The size of the spill has become a high stakes political controversy that's put the Obama administration and the oil company on the defensive. In congressional testimony Wednesday, an engineering professor from Purdue University in West Lafayette, Ind., said that based on videos released Tuesday he estimated that the well was spewing 95,000 barrels of oil, or nearly 4 million gallons, a day into the gulf.
The Obama administration Thursday demanded that BP publicly release all information related to the disaster.
BP officials had pledged in congressional testimony to keep the public and government officials informed, Homeland Security Secretary Janet Napolitano and Environmental Protection Agency Administrator Lisa Jackson said in a letter to BP chief executive officer Tony Hayward.
"Those efforts, to date, have fallen short in both their scope and effectiveness," they wrote.
That letter came after members of Congress made similar demands of BP, leading to the release Tuesday of the new videos. One showed oil still billowing from one underwater pipe, despite an insertion tube BP now says is capturing 5,000 barrels of crude a day — its entire initial estimate of the spill. The other showed a previously unseen leak spewing clouds of crude from just above the well's dysfunctional blowout preventer.
The EPA on Thursday ordered BP to switch to a less toxic version of the chemical mix it's using to disperse the oil. The EPA also for the first time posted on its website BP's test data of the dispersant's use in deep water. Those orders came days after McClatchy Newspapers reported doubts about the dispersant's safety and members of Congress made a similar demand.
Scientists and environmentalists praised the government for demanding that more information be made public.
"This is exactly the role the government needs to be playing — they need to be overseeing BP's actions to assure that health and natural resources are protected, as much as possible, and that information is available to the public," said Gina Solomon, a senior scientist with the Natural Resources Defense Council.
National Oceanic and Atmospheric Administration head Jane Lubchenco told reporters on Thursday that a team of government scientists was assembled this week, a month after the spill began, to try to come up with a better estimate of the leak's volume.
She said the 5,000-barrel estimate was based on visual observations on the surface. "As the spill increased in size and began to break up it was no longer possible to use that effort, which is why we have shifted to using multiple paths to try to get at better estimates," she said.
Scientists have the instruments and the knowledge needed to figure out the flow rate, and several have complained publicly that they were turned down when they offered to help, as McClatchy reported Tuesday.