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January 22, 2013
"Killed" well limits BP's liability

The U.S. Court of Appeals for the 5th Circuit upheld all but one part of a U.S. district court ruling that denied requests by an environmental group that BP America and Transocean be ordered to cease any operation at Macondo well in the Gulf of Mexico and conduct other actions.  The 5th Circuit confirmed the primary ruling by the district court that the companies cannot be ordered not to operate a drill site that had been declared “killed” (closed and capped with cement) by the federal agencies overseeing spill response.  However, the 5th Circuit did disagree with the district court’s dismissal of a claim that the companies had violated reporting provisions of the federal Emergency Planning and Community Right-to-Know Act (EPCRA). 

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Injunctive relief

BP holds the lease for the Macondo well site where Transocean’s Deepwater Horizon drilling rig experienced a blowout in April 2010, killing 11 rig workers and resulting in the worst oil spill in the nation’s history.  The Center for Biological Diversity sought judgments from the U.S. District Court for the Eastern District of Louisiana on seven issues, including a declaratory judgment that the defendants had violated the CWA, CERCLA, and EPCRA and were likely to continue to do so and an injunction enjoining the defendants from operating the offshore facility in a manner that would result in further violations of those laws.  The petition is one of hundreds of nonfederal actions launched by over 100,000 individual claimants against the two companies.

The Center argued that even though the well had been closed and capped, BP retains its National Pollutant Discharge Elimination System (NPDES) permit and could return to the site and resume operation.  But the district court responded that an injunction could not provide meaningful relief in terms of stopping discharges that had already ceased.  And because there was no longer a viable facility from which a release could occur, there was no reasonable possibility for a future release and no ongoing violation, the district court added.

Mootness upheld

The 5th Circuit agreed and referred to a previous ruling that noted that “any set of circumstances that eliminates actual controversy after the commencement of a lawsuit renders that action moot.”  The court emphasized that there might be some concern about the companies if the killing of the well was a voluntary action and they could resume drilling upon dismissal of the suit.  However, the 5th Circuit points out that the killing of the well occurred at the “insistence” of the federal government, effectively ensuring that the defendants could not return to the site “only to revert to their old ways.”

“We are not persuaded that the speculative possibility that BP could some day return to this site, after the tremendous time, energy, and manpower expended to close it, saves the Center’s current claims from a finding of mootness,” stated the court.  The finding of mootness also worked against most of the Center’s other claims for relief.

EPCRA reporting

The situation differed for the Center’s EPCRA claim.  Under EPCRA, the owner or operator of a facility must provide written notice of a release of certain extremely hazardous substances or substances covered under CERCLA to state and local emergency coordinators.  The requirement also provides the public with access to important information about how the released substances may impact public health. 

The defendants stated that information about chemicals released in the spill was available on various government websites.  The Center charged that the defendants had never actually met the requirement for written notice and that it was extremely difficult for the public to find the information it sought.  The district court denied the claim, but the 5th Circuit disagreed. 

“Our review of those [government] websites reveals a voluminous amount of information about the spill and the Government’s response, but the specific information required by EPCRA is not immediately apparent.”  The 5th Circuit therefore remanded the EPCRA issue to the district court for further proceedings. 

Click here for the 5th Circuit’s opinion in Center for Biological Diversity v. BP et al.

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