If this week’s skirmish over dead animal photos provides any indication, prosecuting attorney Kevin Weichbrod could find himself severely challenged throughout the three-month trial now getting underway against Plains All American Pipeline LP, now facing criminal charges over its 144,000-gallon oil spill along the Gaviota Coast in May 2015.
Weichbrod is arguing the pipeline company was criminally negligent. “It wasn’t a question of ‘if,’” Weichbrod repeated multiple times during his opening arguments, “so much as a question of ‘when.’” The company, Weichbrod charged, either knew or should have known that a stretch of its pipeline known as Line 901 was so corroded that 90 percent of its thickness had been eaten away. Weichbrod maintained that Plains failed to follow its own safety procedures in keeping its pipes in good repair and then that it violated federal reporting requirements after the oil sprayed onto the beach and into the ocean as if shot out of a fire hydrant.
To make his point, Weichbrod beamed dramatic photos of dead sea creatures — a dolphin, a sea lion pup, and an oil-blackened brown pelican — on a large screen in Judge James Herman’s courtroom. Their deaths are part of the criminal allegations filed jointly against Plains by Santa Barbara District Attorney Joyce Dudley and California Attorney General Xavier Becerra. Plains hired Gary Lincenberg, a white-collar courtroom gunslinger out of Los Angeles, to shoot holes in Weichbrod’s argument. He wasted little time in commencing fire.
Speaking of the dead dolphin, Lincenberg told the jurors, “There’s no oil in it, there’s no oil on it, and yet we’re charged with the crime of killing it.” Lincenberg said a necropsy performed on the dolphin at Sea World revealed it had died from long-festering chronic causes, but not anything sudden or acute like an oil spill. Likewise, he noted, the dead sea lion pup — whose image he acknowledged was “heart-wrenching”— had likely died from other causes. Zooming into a close-up of the sea lion pup’s neck, Lincenberg highlighted two puncture wounds that he said indicated death by marine predator. Deploying similar close-ups on the dead pelican, Lincenberg showed the presence of fishing line wrapped around its beak. Most likely, he argued, the bird died first; its body later lathered in spilled oil.
To the extent Weichbrod has a response to Lincenberg’s contentions, it will have to come later in the trial. For the next few weeks, his job is to demonstrate not merely that Plains was responsible for the spill but that the company “intentionally” allowed it to happen by ignoring safety protocols. “The environment was decimated, animals were killed, and the beaches were covered in toxic crude,” Weichbrod said. “This was foreseeable. This was preventable. And this should have never happened.”
Plains initially argued it couldn’t possibly get a fair trial in Santa Barbara, where a catastrophic oil spill in 1969 helped give rise to the modern environmental movement. It had sought a change of venue on those grounds. This motion was rejected, but the two sides went through no fewer than 800 prospective jurors before a jury of eight women and four men was finally impaneled. Those jurors and a handful of alternates will be subjected to a crash course in the technical procedures specific to pipeline operations, replete with lingo about “pigs and digs,” “magnetic flux leakage,” “shrink sleeves,” and “girth welds.”
Less visually arresting than the dead animals but perhaps more troublesome for Plains were the charts and graphs Weichbrod beamed on the overhead projector showing a dramatic increase in the number of anomalies detected on Line 901 from inspections conducted in 2007, 2012, and 2015. The last inspection took place two weeks before the rupture. Worse yet, Weichbrod argued, those inspections — conducted by bouncing electromagnetic current off the inside walls of the pipe to determine its thickness — consistently failed to reveal the true extent of pipe corrosion.
This discrepancy was discovered by a company hired by Plains to dig up the underground pipe and make repairs. In some cases, the magnetic imaging overstated the corrosion. But in many others, it grossly understated it. One dig conducted in response to the 2012 inspection revealed the pipe was 26 percent more corroded at one location than the magnetic imaging indicated. For reasons unclear, Weichbrod charged, Plains declined to dig up another anomaly located just five feet away. Had the company done so, it would have discovered that all but 11 percent of the pipe thickness had been eaten by corrosion. That anomaly, Weichbrod noted with dramatic understatement, was where the rupture occurred.
Lincenberg accused Weichbrod of seeking to exploit whatever “hindsight bias” the jurors might have by appealing to their emotions. Where Weichbrod described Plains as a big, $18-billion-a-year corporation with 18,000 miles of pipeline, Lincenberg described it instead as a “collection of human beings” started “by two men named Greg and Harry.” It was not an oil drilling company, he said, so much as an oil transport company — “the FedEx of oil,” he called it — and much safer than trucks or barges. He defied Weichbrod to present any evidence that Plains employees did anything to cause the rupture or that they ever sought to cut corners to save a dime. Instead, he said, the company was aware of the growing corrosion problem and accelerated the rate of inspections from once every five years — as required under federal law — to once every three years.
Lincenberg acknowledged the growing number of anomalies but stressed that the company made 77 more repairs than federal regulations required. The company, he stressed, took full responsibility for the damage the spill inflicted at a cost of “hundreds of millions of dollars” but argued there was no shortage of other causes — aside from spilled oil — for the death visited upon sea life in 2015. For starters, he said, there was an intense algae bloom along the coast that generated large quantities of deadly domoic acid. Likewise, Lincenberg noted, 2015 had been a record year for the number of sea lion strandings for reasons having nothing to do with spilled oil.
What happened at Refugio in May 2015 was “a tragic accident,” Lincenberg said, but not a crime. “You have to judge us based on information we had at the time, not what we learned after the spill in 2015,” he said. “The difference is enormous. We understood the pipe to be five times thicker than it actually was.”