Criminal trial in oil spill focuses on company’s actions, omissions

SANTA BARBARA -- Jury members, deciding whether Plains All American Pipeline was criminally negligent in their handling of a 142 thousand gallon oil spill near Refugio State Beach, listened to painstakingly long direct questioning by Deputy Attorney General Brett Morris during proceedings thus far.

Although Santa Barbara County Superior Court Judge James Herman made multiple comments to Morris to pick up the pace during trial on Monday, he also told an antsy defense attorney, "This is the way it has to be done."

The state attorney general's office and the Santa Barbara County district attorney brought felony and criminal charges against Plains All American Pipeline LP after its pipeline that ran under Highway 101 along the coast ruptured in 2015, spilling crude oil onto the beach and into the ocean.

The trial, which began April 12 and is expected to continue at least until September, is likely to have implications for a slew of civil lawsuits including a possible class action involving as many as 5,000 litigants such as beachfront property owners and residents plus fishing industry workers and owners.

Within days of the spill, Santa Barbara County District Attorney Joyce Dudley had opened a criminal investigation. Then-California Attorney General Kamala Harris had vowed to work with state and federal partners to conduct an investigation of the spill and hold responsible parties accountable.

"This oil spill has scarred the scenic Santa Barbara coast, natural habitats and wildlife," Harris said in a statement at the time.

In its own statement to its investors after a grand jury indictment was issued in 2016, Plains said it had directly or indirectly spent over $150 million on the response effort and cleanup and were committed to mitigating the impact of the spill.

"Plains is deeply disappointed by the decision of the California attorney general and Santa Barbara district attorney to pursue criminal charges against Plains and one of its employees in connection with the 2015 accident," the oil company's statement said. "... [T]he charges have no merit and represent an inappropriate attempt to criminalize an unfortunate accident."

Commenting in an email Tuesday, Dudley said, "Every criminal act I have prosecuted in the past 28 years has been an unfortunate event."

"As is always true for all criminal defendants, Plains All American is to be presumed innocent of all charges, unless and until they are proven guilty," she added.

The prosecution called principal engineer Katherine Buckingham, who led the incident investigation, to give her expert testimony Monday. She answered technical questions posed by Morris dealing with the nuisances of external corrosion and pipe wall thickness.

After an hour of long pauses and multiple requests to "rephrase the question" from Buckingham, the judge urged Morris to pick up the pace.

Three hours later, after a slew of documents was presented by Morris from a 212-page incident report prepared by Buckingham, defense attorney Luis Li of Munger, Tolles & Olson LLP, objected in a frustrated tone.

"This is not the way it's supposed to be done," Li complained.

"Overruled," the judge replied. "This is the way it has to be done."

First siding with Morris, Herman explained that while much of what the prosecutor presented fell under the category of legitimate demonstrative evidence, he reminded Morris, "We're a long way away from finishing direct questioning." And then added, "We're not admitting the entire document."

Morris then looked back at the clock on the wall and said, "I'll do everything I possibly can do to keep this under an hour."

What was eventually revealed in Buckingham's testimony is that the corrosion of the pipeline was due to multiple causes, the most notable being that Plains did not take necessary actions to adequately address the elevated corrosion threat.

However, Buckingham later explained that the available data gathered by Plains did not necessarily reveal the elevated threat. Also, during Li's cross examination, Buckingham said that in her analysis, she did not identify anything that Plains did that was substandard in preventing the spill from occurring.

Buckingham is the principal engineer at Det Norske Veritas and Germanischer Lloyd, a global quality assurance and risk management company assigned to do the incident report for the spill.

In between sessions, an army of lawyers from Munger, Tolles & Olson LLP and Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow LLP, representing Plains, set up an impromptu law office in the hall outside the courtroom.

Clusters of lawyers huddled together to discuss defense strategy. Documents started pumping out of a printer plugged into the wall. Lawyers sat on the floor busily making notes in binders.

Back in May 2016, Plains faced a 46-count criminal indictment for its alleged mishandling of the ruptured pipeline: 42 misdemeanor and four criminal charges, one of which was filed against James Colby Buchanan, an environmental and regulatory compliance officer for Plains.

Since then, the counts have dwindled to 15: 12 misdemeanors and three felonies. The district attorney's office also dismissed the charge against Buchanan, reducing his role in the matter to a subpoenaed witness.

In an email on Tuesday, Dudley said, "The charges were dismissed in the interest of justice, based upon subsequently developed evidence relating to Mr. Buchanan's lack of personal responsibility for the alleged crimes."

The trial will continue Thursday.