Oil Spill Whistleblower Gets His Day in Court
Leaving a Battle Creek, Michigan, state courtroom on Wednesday, after the first day of his whistleblower trial, John Bolenbaugh and his lawyers were all smiles. They joked and chatted about opening statements and early testimony as they wheeled their trial boxes out into the bright sunlight and down the ramp to the curb. While Tom Warnicke, Bolenbaugh’s lead attorney from Fieger Law, went to get the car, Steve Hnat -- a gregarious, fire-tested trial consultant, who has worked with Fieger since the firm’s days defending “Dr. Death” Jack Kevorkian -- was feeling so good that he suggested they all go for a bite to eat.
“There’s an Applebee’s not too far away,” Bolenbaugh said.
“What is this -- fucking Talladega?” Hnat scoffed. Usually blessed with a deadpan delivery, Hnat couldn’t suppress a grin.
“You want a real restaurant?” Bolenbaugh countered.
“Yeah, is there somewhere I can get a plate of pasta?”
“There’s an Olive Garden -- ” Bolenbaugh began. And Hnat broke out into roaring laughter.
He had reason to feel ebullient; inside the courthouse, nearly everything had gone their way. Judge James C. Kingsley began the morning by predicting that the trial would be over in four to five days. “Strip away the hype and hyperbole,” he told the jury pool, “and this is a pretty straightforward case.” He did remind everyone assembled in the small circuit courtroom that Enbridge, Inc. -- the Canadian energy giant whose pipeline spilled more than a million gallons of heavy crude into western Michigan waterways on July 25, 2010 -- was not a defendant, that this was not a trial to decide whether the company and its contractors had covered up oil. Still, those politically charged overtones were inarguably what brought local reporters and onlookers to the gallery for what was otherwise a mundane civil action -- an ordinary wrongful termination suit.
SET Environmental, an Enbridge contractor, fired Bolenbaugh from a shoreline cleanup crew in October 2010. He claims it was because his team was ordered to bury and cover up oil in order to meet a federal deadline -- and he raised concerns and threatened to go to the press and government authorities. (See “The Whistleblower,” OnEarth’s three-part series on the oil spill and its toxic aftermath, for a complete account of Bolenbaugh’s story.) After his firing, Bolenbaugh turned community crusader and social media muckraker, helping victims of the worst inland oil spill in U.S. history and documenting on YouTube the thick deposits of tar sands-derived crude that remained on the creek beds and river banks of western Michigan long after Enbridge and government authorities declared the cleanup complete. Bolenbaugh was motivated in part by a desire to redeem himself for his own soiled past, including a six-year prison sentence for having sex as a young man with two girls a year under legal age in Michigan.
Because this is a civil case and not a criminal trial, the law is slanted very much in Bolenbaugh’s favor. The jury does not need to be unanimous and needs to reach a conclusion -- based only on the preponderance of the evidence, not beyond a reasonable doubt -- that Bolenbaugh sincerely believed there was a coverup, not that one actually occurred. And they only have to conclude that Bolenbaugh’s whistleblowing factored into his firing, not that it was the sole, or even the principal, reason for it.
If so much legal advantage weren’t enough, the jury selection seemed to go Bolenbaugh’s way. Warnicke dismissed an insurance claims investigator who estimated he had worked on more than a thousand lawsuits. SET’s attorney Douglas Van Essen dismissed a woman whose grandson had been fired by another Enbridge contractor but not before she let her distaste for the Canadian corporation be known. There was more jockeying. But when the final vacant seat was taken by a woman whose house had backed onto Talmadge Creek before Enbridge came and bought her out, neither side challenged. Another juror said that she was involved in a class action suit against a pharmaceutical company. Two said they owned small businesses. All laughed in unison when the judge asked if they were aware of the July 2010 oil spill.
Little wonder, then, that when Judge Kingsley asked each attorney to present a thumbnail theory of the case—even before actual opening arguments -- Van Essen began by stressing, “My company, SET Environmental, did not cause the oil spill.” He presented SET as concerned first responders who arrived from a neighboring state to aid in an emergency. He likened the company to firefighters being called to a fire. And he emphasized that SET, despite being based outside Chicago, had hired 10 local temporary workers, including Bolenbaugh, as a way of further helping the Marshall and Battle Creek area.
Warnicke dismissed this characterization, pointing out that SET has made $12.5 million from Enbridge on this spill alone—and has frequently worked with Enbridge before and since. That was his simple argument: that SET had violated whistleblower protections and Michigan state law for “wrongful termination against public policy” for no other reason than to safeguard the company’s lucrative relationship with Enbridge. “They took 12.5 million pieces of silver to betray the people of Calhoun County,” he said. Warnicke charted out the reporting structure -- Enbridge supervising O’Brien’s Response, which in turn supervised SET -- and he dramatically reenacted the instructions Bolenbaugh had received from O’Brien’s supervisor Jason Buford. “I want you to spread out the oil,” Warnicke said. “Rake it into the soil. Cover it with grass. Cover it with leaves. I want you to hide it -- to dupe the EPA and the (Michigan Department of Natural Resources).”
After opening arguments concluded on Wednesday, Warnicke called Jill Schoeneman, a human resources manager for SET. Schoeneman was insistent that Bolenbaugh had been fired for insubordination. He was “flaunting” to Enbridge supervisor Dave Murphy his intention to photograph and videotape worksites and then take those materials to the news media. And that was the last straw: that Bolenbaugh had made this threat to the client directly.
Perhaps most damaging, Schoeneman insisted that Bolenbaugh didn’t fit the definition of a whistleblower because he had gone to a Detroit Fox television affiliate, not a governmental body -- but Schoeneman’s own sketchy notes of her recorded phone conversation with Bolenbaugh, just hours before his termination, read simply: “—attornies [sic]—videotape—whistleblower lawsuit—Enbridge—Duncan—spoke to commissioner—friends with reporter—media—last Friday.” The note about John Duncan, the SET supervisor who told Bolenbaugh’s crew that they didn’t have to cover up oil “if it bothers your conscience,” alongside the note that Bolenbaugh had spoken to a county commissioner, would seem to be enough to afford Bolenbaugh whistleblower protection -- and would also seem to indicate that it factored in Schoeneman’s thinking. When Warnicke asked the whereabouts of the recording of the conversation, Schoeneman said it was her usual practice to destroy such recordings immediately because they are inadmissible at trial in Illinois.
After his long-awaited first day in court, at Nina’s Taqueria, just across the river from the courthouse, Bolenbaugh kept running over Schoeneman’s testimony, refuting it point by point. Hnat and Warnicke nodded approvingly at first, then, slowly, seemed to glaze over, retreating into thoughts of the next day -- concluding Schoeneman’s testimony, pressing ahead with a full slate of Bolenbaugh’s SET co-workers. Long after they had gone back to the hotel to rest and prep, Bolenbaugh bent my ear in the parking lot about how this could be the beginning of something big. This could be the start of nationwide awareness about the dangers of tar sands, if he could just notch this legal victory. After 18 months of stalking the banks of the Kalamazoo River, upturning submerged oil and getting it all on video, after more than a year of insisting he had witnessed a coverup, Bolenbuagh finally had them right where he wanted them.
For all of one day.
* * *
The trouble with crusaders is that their virtues are often inseparable from their vices. The stubbornness that pushes Bolenbaugh to put on hipwaders and struggle out into the Kalamazoo River with a video camera also makes it difficult to get a word in edgewise when you’re talking with him. His constitutional inability to shut up, even when it’s in his own best interest, pushed him -- right or wrong -- to go the press and, according to Bolenbaugh, to the EPA, the Department of Natural Resources, the county commissioner, and every other governmental body he could think of. But that same big-mouthed impulse could also be Bolenbaugh’s undoing, and -- in a trial where the decision may come down to whether jurors believe him or his former bosses -- the last thing that Bolenbaugh can afford is the appearance of being insubordinate, grand-standing, and publicity-seeking.
All that would seem to demand is his silence, but in just trying to sit quietly, Bolenbaugh has his work cut out for him. And so do his attorneys.
Everything began well for them on Thursday morning, the second day of trial. SET’s counsel Douglas Van Essen agreed to stipulate to one of the legal standards for making a whistleblower case -- that Bolenbaugh believed that he had witnessed an illegal activity and made his allegations in good faith. Van Essen asked to have one caveat added -- “SET maintains that these beliefs are misguided” -- but the law doesn’t care whether a whistleblower is misguided or not. For Bolenbaugh’s team, this should have been a major victory. Now all they had to do was convince the jury that Bolenbaugh’s reasonable and sincere belief that a crime was being committed was a factor in his firing. The case seemed so narrowly defined and winnable now that, during the lunch break, reporters stood around the parking lot, openly wondering if there was any point in covering the afternoon’s proceedings. But for Bolenbaugh, it wasn’t enough to establish his belief; his whole reason for going to trial was to establish proof -- and a legal precedent -- that a coverup had, in fact, occurred.
He paced the gallery, waiting for the midday adjournment to conclude. “It makes me sound crazy,” he told me. “I don’t want them saying I believed there was a coverup. I want them saying they covered up oil.”
As he talked, I filled out a form from the bailiff to establish my right as a member of the press to bring a camera and a laptop into the courtroom.
“Can you shoot video on that thing?” Bolenbaugh asked.
“No,” I said, “the sergeant was pretty clear: if I turn on the video function, against the judge’s instructions, I’ll be spending the night in jail.”
Steve Hnat, Bolenbaugh’s trial consultant, smiled. “A night in jail can be an enlightening experience,” he said. He chatted on, talking about being held in New York as part of the Occupy Wall Street arrests.
But Bolenbaugh was brooding now. He looked up at the half-dozen built-in video cameras trained at all significant points in the courtroom. There are signs posted throughout the courthouse, warning that all proceedings are videotaped, but Judge Kingsley had begun the trial by specifically noting that this case would be documented by a court reporter only. All of a sudden, with everything going so well, Bolenbaugh wanted to know why there wasn’t going to be a video record of his trial.
As I handed my form to the bailiff, Bolenbaugh stopped her. “Excuse me,” he said. “Why aren’t the cameras on?”
“Judge’s order,” she replied.
“This is history,” Bolenbaugh said. “They should turn the cameras on to record all this.”
The bailiff slipped away without another word, but when Judge Kingsley returned to the bench, he was fiery mad. This was not a movie, he reminded the plaintiff’s counsel; this was his courtroom. He had already made it known, he roared, that this trial would be entered into the record as a transcript only. He wasn’t going to allow the proceedings to turn into a circus.
“Sorry,” Bolenbaugh offered up weakly, but he managed to sound more petulant than repentant.
Hnat rose from his chair and walked to the back of the courtroom. His face was bright red, his anger so thinly contained that his eyes were welled with tears. With everything firmly in hand, Bolenbaugh had managed to piss off the judge -- and, even having so royally screwed up, he still couldn’t bring himself to make a sincere apology.
“A courtroom is like a family,” Hnat explained to me later. He likened the opposing sides to feuding siblings—with the jury cast as a third sibling who will decide the outcome. “The judge is the father-figure. He’s supposed to be impartial, but he holds a lot of sway.” Hnat was too seasoned and careful to state the obvious: after Bolenbaugh’s stunt, after the jurors returned -- unaware of the incident -- to the jury box, very few of Van Essen’s objections were overruled. Worse still, Judge Kingsley began asking questions directly from the bench. There was nothing improper, but Warnicke’s leeway seemed to have evaporated, forcing him to hustle through his examinations of Bolenbaugh’s supervisors and co-workers. With little opportunity to delve into their testimony -- and the persistent deviations from earlier depositions by almost every one of them -- Warnicke scored a few points, but he certainly didn’t land a knockout.
Indeed, even as one cleanup worker after another conceded that, yes, he had been present when Jason Buford instructed Bolenbaugh’s team to cover up oil (or had heard from workers about those instructions immediately after the meeting), even as they agreed that they had never previously seen grass clipping used as an absorbitant, that it simply wasn’t a proper way to clean up oil, somehow the mood of the room never seemed to slant in Bolenbaugh’s favor.
Indeed, the staccato pace seemed to buoy the SET workers as they trotted through their testimony. They chuckled in the gallery at each other’s answers. “Look at him dance,” one whispered as J. T. Utt insisted that piles of grass clippings had been used to fill holes, not to cover oil. Utt, at times, could barely keep from laughing in the witness box as he saw his co-workers huddled and clowning in the gallery. By the end of the day, the fact that Bolenbaugh’s former team all agreed that they had been instructed to cover up oil (although they still denied they had actually carried out those orders) was overshadowed by their palpable dismissal of Bolenbaugh’s credibility. Whether the jury will perceive that as arrogance by reckless cleanup workers or unspoken proof that Bolenbaugh is a crackpot remains to be seen. But the outcome of the trial (and how it is perceived in the larger media) may now depend on Bolenbaugh’s testimony.
One thing is certain: even amid the funereal mood that hung over his legal team as they emerged from the courthouse -- clear, sunny skies now replaced with gray clouds -- Bolenbaugh couldn’t understand what the big deal was. “It is history,” he insisted to me. “People are gonna want to see this some day.” He might be right, but when he takes the stand to make his case, he’s going to have to convince the jury that what he really wants is a platform to speak out against a coverup and on behalf of his community -- not a stage on which to play out the final act of his own personal drama.