Air Date: Week of June 8, 2012

Richard Camilli flies over the spill to measure the rate of oil gushing into the Gulf (Photo by Andy Bowen, Woods Hole Oceanographic Institution).

The impact of the oil gusher in the Gulf has just reached the shores of academia. BP recently won a subpoena for 3,000 emails between scientists who first showed up to measure and contain the spill. Host Steve Curwood asks the Woods Hole Oceanographic Institution Director of Research Larry Madin what effect this decision could have on academic freedom.

Transcript

CURWOOD: From the Jennifer and Ted Stanley Studios in Somerville, Massachusetts, this is Living on Earth. I’m Steve Curwood.

The massive Deep Water Horizon oil spill not only devastated the ecology of the Gulf and its fishing industry, it may well have also damaged academic freedom. Scientists from the Woods Hole Oceanographic Institution were among the early responders to the BP oil spill disaster, and they chatted with each by email. Here’s one of the scientists, Richard Camilli, speaking to a congressional committee back in May of 2010.

CAMILLI TAPE: On May 1, I received an email from my colleague Andy Bowen, who is Director of the National Deep Submergence Facility, describing a conversation that he had with BP representatives. He relayed that BP was anxious to receive any assistance for learning more about the internal status and workings of the failed blowout preventer. He also conveyed to the group, quote - “if any of you have ideas, no matter how wild, on how to help, please pass them to this group.”

CURWOOD: Well, now BP wants to use those emails to defend against a federal investigation that could hold them liable for billions of dollars in damages.

The oil giant has gotten a federal court order to see nearly 3000 confidential emails from Mr. Camilli and his colleagues. Larry Madin is the Director of Research for the Woods Hole Oceangraphic Institution. I asked him why the scientists think BP wanted their emails.

MADIN: We think they wanted these emails because they contained the preliminary correspondence that went on among the authors in which they were testing the ideas and arguing with one another and so forth. Potentially, they could cherry pick something out of that that they could take out of context and use to cast doubt on the eventual results.

CURWOOD: For instance?

MADIN: Well, for example, the estimates of the flow rate changed as new information came in and the estimates became better and more refined. Yet if you took that out of context, you could say, ‘Well, they can’t seem to make up their minds about what the right answer is.”

CURWOOD: What’s on the line here for BP?

MADIN: Well, BP will be subject, eventually, to a fine under the terms of the Clean Water Act and other relevant legislation that is based on the amount of oil that was actually spilled into the Gulf of Mexico. The measurements that we were involved in making led to an estimate of how much oil that was. So they have an interest in making that estimate as low as possible.

CURWOOD: So what’s on the line here for science?

MADIN: I think there’s a couple of issues for science. One is that scientists need to be able to have a sense that their deliberation in arriving at scientific conclusions and analyzing data and conferring with one another has some degree of protection from being misused and taken out of context for other than scientific purposes.

The other issue is that if scientists do have this fear that they are not going to be protected, they’re less likely to be willing to contribute their expertise to a situation like this where it can be very valuable to the nation as a whole. I can’t speak for individual scientists, I hope that many of them will still recognize the responsibility that they have to help. I think the other outcome that we hope for is that there will be some movement toward creating a greater degree of protection so the scientists won’t have this fear.

CURWOOD: Now this isn’t the first time that emails among scientists, private email correspondence among scientists, has gotten into the limelight. I’m thinking in particular of the controversy over emails regarding climate change and efforts to undercut that research. Do you share similar concerns here?

MADIN: Well, I think there are similar concerns in the sense that some of the content of those emails can be, again, taken out of appropriate context and used to create false impressions about what was going on. A difference is that the emails in Climategate were hacked illegally. In our case, the emails had been surrendered under a court order. What that points out is that there’s not an adequate legal and legislative protection in place that would limit the ability of a court to make that kind of an order.

CURWOOD: I’m wondering why the Woods Hole Oceanographic Institution didn’t appeal this case?

MADIN: It became apparent, on advice of our counsel, that an appeal was not likely to be successful. But while we were debating that point, the other side, BP, did appeal the case. That surprised us somewhat because from our viewpoint they had won, but in view of the fact that they did that, there’s no opportunity for us to.

CURWOOD: So you were outflanked legally by these guys?

MADIN: In a sense, although our legal team had the opportunity to object to the basis of their appeal and to reinforce our argument that there should be an appropriate level of protection for scientific deliberation.

CURWOOD: What kind of protection for science would be adequate in your view?

MADIN: Legislation or even court-created protections that would establish the principle that this type of scientific deliberation deserves a degree of protection. It’s not perhaps an absolute degree of protection because there may be countervailing arguments in certain cases, but to recognize that there’s a principle that this type of discourse intrinsically deserves protection from inappropriate use.

CURWOOD: Journalists face a similar situation sometimes when people come after records and subpoenas. Sometimes our response as journalists is to go to jail rather than to turn this material over. Did you think about that for your scientists?

MADIN: I doubt that our scientists thought about that very seriously at the time that they were volunteering their time and services to this crisis. Maybe they’re thinking about it a bit more now, it doesn’t seem as though it should be necessary for scientists who are working in the interest of determining the truth of these situations in the interest of the nation to make that kind of sacrifice.

CURWOOD: In light of this experience, how have you changed the protocols there at the Woods Hole Oceanographic Institution?

MADIN: Well, I think certainly that everybody is much more aware of what can happen. I think that in future situations that might lead to this type of litigation, we would be sure that any scientist interested in participating had adequate legal counseling as to what they might expect in the future and how they should be prepared for it.

CURWOOD: Government officials, for example, are exempt from this kind of “fishing,” if you will, by defendants in cases and have privilege. In the future, might you ask to be deputized by a national agency so that you will be protected?

MADIN: Oh, I think it would be preferable if there were established the principle that non-government academic research institutions, universities, and so forth could be afforded comparable protection. Government scientists are, of course, subject to freedom of information requests and so in some sense, they are even more vulnerable than the non-government academics.

CURWOOD: Larry Madin is the Director of Research at the Woods Hole Oceanographic Institution in Woods Hole, Massachusetts. Thank you so much, sir.

MADIN: You’re welcome.
CURWOOD: We contacted BP for comment. The company's US Head of communications, Geoff Morrell, sent a statement. I quote, “BP is a company of scientists and engineers, and the subpoena served on Woods Hole is in no way an attack on science. The information and documents that BP sought to be produced by Woods Hole are typical of information and documents regularly sought in civil litigation, and the Court found, among other things, that there was a demonstrated need for the materials because there was no other source for them.”

 

Links

Court document Regarding BP’s Subpoena for Woods Hole’s Analysis Documents

Christopher Reddy and Richard Camilli’s Boston Globe Op-Ed: “Science out of context”

Rich Camilli’s Testimony on Acoustic Technology for Determining Oil Spill Size

Richard Camilli Testimony to the National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling

Larry Madin, WHOI Director of Research, on the Need to Protect the Scientific Deliberative Process