Judge to take another look at oil spill convictions

SANTA BARBARA -- Attorneys for a pipeline company convicted in September of one felony and eight misdemeanor charges relating to a 140,000-gallon oil spill tried to convince a judge to grant a new trial or dismiss some of the most serious charges at a hearing Thursday, arguing the jury instructions were made in error.

Although Santa Barbara County Superior Court Judge James Herman previously indicated a leaning toward denial of Plains All American Pipeline's request to reconsider three convictions, including one felony charge of knowingly causing the discharge, he made no decision after both parties argued on Thursday.

Instead, the judge told attorneys for the government and the company that he would take another look and decide at a later date.

Plains, represented by lead counsel Gary Lincenberg of Bird Marella Boxer Wolpert Nessim Drooks Lincenberg & Row PC and co-lead Luis Li of Munger Tolles & Olson LLP, previously focused on prosecutorial misconduct in their motion for a retrial.

This time, Lincenberg raised the second item in the motion, arguing the jury had been improperly instructed to consider whether the pipeline company committed a felony based on a civil and not criminal standard of negligence. People v. Plains All American Pipeline LP, 1495091 (Santa Barbara Super. Ct., filed May 16, 2016).

Lincenberg argued Plains may not have been convicted of the felony if the jury had been instructed to hold them to safety standards set forth by the federal government, which, he argued, the company had complied with.

"The standard of care is to be measured by whether or not one contradicts a federal regulation," Lincenberg said.

"Experts said unequivocally that Plains met the standard of care, that Plains met the regulatory requirements in every respect, and any criticism or any lessons learned for the industry can look to going forward, have nothing to do with the causation with regards to this oil spill," he added. "That evidence is crystal clear."

The prosecution, represented by Brett Morris of the California attorney general's office and Kevin Weichbrod of the Santa Barbara County district attorney's office, said the company had been held to the proper standards when the judge instructed the jury.

"The instructions were directly on point," Morris said. "This is not a federal trial."

Morris, who had been critical of various federal agencies throughout the trial and who previously told the court the U.S. Department of Justice had directly stood in his way by inhibiting his ability to use federal employees as witnesses, again criticized the federal government's alleged involvement in the case.

"We're not talking about federal regulations; and to bring up what the company should learn, the industry, or anybody else should learn from this trial, is that the federal government is not a safe harbor," Morris said. "Especially if there's nobody there, if the harbor is rigged, if nothing is happening with the federal government, there are still state requirements."

One of the central arguments made by Plains throughout the trial is an independently contracted pipeline inspection company called Rosen Group severely underestimated how badly the pipeline eroded before it burst.

According to Lincenberg, Rosen reported the pipe eroded by 40 percent.

However, later inspection of the pipe revealed it eroded by 90 percent near where it burst.

Lincenberg argued Plains should not be held accountable for knowing the pipe would burst even when they were following federal regulations.

"That is not the law. It cannot be the law, and it sends a dangerous message to people who are trying to comply with the regulations," Lincenberg said.

After arguments were heard, Herman asked Plains' counsel to point out where the prosecution had represented to the jury that the felony charge rested on violations of federal regulations.

If Plains is able to convince Herman to retry or dismiss the felony charge, the fines associated with the remaining convictions will likely be substantially less.