The massive Deep Water Horizon oil spill not only devastated the ecology of the Gulf of Mexico and its fishing industry, it may also be damaging academic freedom.
Scientists from the Woods Hole Oceanographic Institution were among the early responders to the BP oil spill disaster. They discussed theories for the bredth of the damage and tested ideas for containing it over email.
Now BP wants to use those emails to defend itself 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 3,000 confidential emails from the scientists.
Larry Madin, Director of Research for the Woods Hole Oceangraphic Institution, said BP likely wants the e-mails because they contain the preliminary correspondence between the scientists. Madin said BP could potentially cherry pick from the emails, take them out of context and use them to cast doubt on the eventual results.
“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,’” Madin said.
BP will eventually be subject to a fine under the terms of the Clean Water Act and other related legislation based on the amount of oil that spilled into the Gulf of Mexico.
The measurements that Madin and his team were involved in making led to an estimate of how much oil that actually was. According to Madin, BP has an interest in making that estimate as low as possible.
However, this provides a significant problems for scientific freedom and integrity. Madin said scientists need to have a sense their work has some degree of protection from being misused and taken out of context for non-scientific purposes. He fears if scientists don't believe they're going to be protected, they'll be less willing to contribute their expertise to future situations where their work is needed.
“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,” Madin said.
This isn’t the first time that private email correspondence among scientists has been thrust into the limelight. In 2009, confidential emails betwee climate scientists were leaked in an attempt to undercut their research.
Madin said there are concerns that emails may be taken out of context again to create an inaccurate version of what happened. He also said the situation points out there are not adequate legal protections to limit courts' ability to issue such an order.
Madin said legislation or court-created precedents are necessary to give scientists some 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,” he said.
According to Madin, this experience with BP and the courts has made scientists at The Woods Hole Oceanographic Institution much more aware of the type of court orders and subpoenas they could receive in the future. In future situations, Madin said the institution would ensure any scientist participating had adequate legal counseling as to what to expect in the future and how to prepare for it. But Madin would prefer if there were clear legal protections.
“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," Madin said.
BP’s U.S. communications chief, Geoff Morrell, said in a statement that the subpoena served on Woods Hole is not an attack on science, but is typical in civil litigation.
“The Court found, among other things, that there was a demonstrated need for the materials because there was no other source for them," he said.