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- In 2019, BP was convicted of environmental crimes in South Africa. A court is still trying to figure out how much to fine it.
- Now that court wants to see its books, including details of its advertising spend.
- BP sold fuel based on the perception that it was a good green citizen, the court says.
- The amount of money it spent claiming that credit – while failing to properly assess environmental risks – may be relevant.
- For more stories, go to www.BusinessInsider.co.za.
BP must open its advertising books, a high court in South Africa has ordered, to show how much money it spent claiming green credentials while it was, in fact, an environmental criminal.
That information may then be used in the calculation of the fine it is ordered to pay for its crimes – with the clear possibility that the fines may be more than the value of the petrol stations where it committed its crimes.
Judge Brian Spilg this week told BP to provide a heap of documents and information by mid-November, to aid its sentencing, which is likely to take place next year.
The company was found guilty of environmental crimes in 2019, in a private prosecution brought by the Uzani environmental group, for building filling stations without environmental approval.
See also | Guilty: BP has been convicted of environmental crime in South Africa – and could now face massive fines
Among the information Spilg wants is details of BP’s spending on any advertising holding out that it is environmentally conscious, responsible or compliant” for a period going back to 1999. He also wants “report backs from its advertising agencies on the impact or value of their advertising campaigns promoting or otherwise holding out that the accused is environmentally conscious, responsible or compliant”.
Companies – especially oil companies – are often accused of greenwashing, by making misleading environmental claims. If the claims are sufficiently ambiguous, such claims can be hard to prove, and impossible to prosecute.
But South Africa’s environmental legislation allows environmental criminals to be held liable for not only the money they make, but any broader advantage gained, or likely to be gained. Such advantage is supposed to be considered when fines are dished out.
See also | BP says ‘everybody that is anyone’ in SA has made environmental ‘mistakes’ – and their confessions shouldn’t be held against them
It is likely that BP gained “maintenance in this country of the perception that [BP] is an environmentally conscious, responsible and compliant citizen, thereby encouraging members of the public to purchase products from its outlets,” said Spilg in his order – while engaging in criminal conduct.
Spilg’s order also prepares for a BP argument that the fine it receives will be worth more than the value of the 10 filling stations to which it relates, asking for a sworn valuation of each of the stations.
BP will have the opportunity to argue that the information it provides is confidential.
BP has previously said it disagrees with the guilty verdict, and that it will consider its options once the legal process is finalised.
The verdict against BP is believed to be the first ever to use South African law designed to allow private prosecution of environmental crimes where the state fails to do so. It could open the door to a host of similar prosecutions.
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