Ctr. for Biological Diversity, Inc. v. BP Am. Prod. Co.

• Decision Date: 09 January 2013
• Docket Number: No. 12–30136.,12–30136.
• Citation: 704 F.3d 413
• Court: U.S. Court of Appeals — Fifth Circuit
• Parties: CENTER FOR BIOLOGICAL DIVERSITY, INCORPORATED, Plaintiff–Appellant v. BP AMERICA PRODUCTION CO.; BP Exploration & Production, Incorporated; BP, P.L.C.; Transocean Offshore Deepwater Drilling, Incorporated; Transocean Holdings, L.L.C.; Transocean Deepwater, Incorporated, Defendants–Appellees.

704 F.3d 413

CENTER FOR BIOLOGICAL DIVERSITY, INCORPORATED, Plaintiff–Appellant

v.BP AMERICA PRODUCTION CO.; BP Exploration & Production, Incorporated; BP, P.L.C.; Transocean Offshore Deepwater Drilling, Incorporated; Transocean Holdings, L.L.C.; Transocean Deepwater, Incorporated, Defendants–Appellees.

No. 12–30136.

United States Court of Appeals,Fifth Circuit.

Jan. 9, 2013.

Charles M. Tebbutt (argued), Daniel C. Snyder, Eugene, OR, Marc David Fink, Duluth, MN, for Plaintiff–Appellant.

Richard Cartier Godfrey, James Andrew Langan, Elizabeth A. Larsen, Kirkland & Ellis, L.L.P., Chicago, IL, Jeffrey Bossert Clark, Sr. (argued), Granta Y. Nakayama, Kirkland & Ellis, L.L.P., Washington, DC, Don Keller Haycraft, Liskow & Lewis, P.L.C., Kerry J. Miller, Joseph Nicholas Mole, Frilot, L.L.C., New Orleans, LA, Steven Lynn Roberts, Rachel Giesber Clingman, Sutherland Asbill & Brennan, L.L.P., John Michael Elsley, Royston, Rayzor, Vickery & Williams, L.L.P., Daniel O. Goforth, Goforth Geren Easterling, L.L.P., Houston, TX, Brad D. Brian, Allen Mark Katz, Daniel Benjamin Levin (argued), Munger, Tolles & Olson, L.L.P., Los Angeles, CA, Edwin G. Preis, Jr., Preis & Roy, A.P.L.C., Lafayette, LA, Kent C. Sullivan, Sutherland, Asbill & Brennan, L.L.P., Austin, TX, for Defendants–Appellees.

Adam Babich, Tulane Univ., Tulane Environmental Law Clinic, New Orleans, LA, for Law Professors, Amicus Curiae.

Devorah Ancel, Sierra Club, San Francisco, CA, for Sierra Club, Amicus Curiae.

Before STEWART, Chief Judge, and KING and OWEN, Circuit Judges.

KING, Circuit Judge:

This appeal arises from the multi-district litigation spawned from the disaster on the Deepwater Horizon drilling rig and the resulting massive oil spill that occurred at the Macondo well site in the Gulf of Mexico. Plaintiff Center for Biological Diversity appeals from the district court's dismissal of its action brought under the citizen-suit provisions of the Clean Water Act (“CWA”), 33 U.S.C. § 1365(a)(1), the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9659(a), and the Emergency Planning and Community Right–to–Know Act (“EPCRA”), 42 U.S.C. § 11046(a). The district court dismissed the suit for lack of standing, mootness, and failure to state a claim for relief. We agree that most of the plaintiff's claims for relief have become moot because the Macondo well has been capped and sealed. We conclude that, at least on the current record, the EPCRA claim remains viable. We therefore AFFIRM IN PART and REVERSE IN PART the district court's judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Center for Biological Diversity (“the Center”) is a non-profit environmental organization with over 40,000 members, including over 3,500 members living in the Gulf of Mexico region. Defendants BP, P.L.C. and its corporate subsidiaries BP America Production Co. and BP Exploration & Production, Inc. (collectively “BP”) conduct exploration and drilling operations in the Gulf of Mexico. As part of those operations, BP leased the mobile offshore drilling unit known as Deepwater Horizon from Defendants Transocean, Ltd. and its subsidiary companies in order to drill the Macondo well, which is located on the sea floor at Mississippi Canyon Block 252.

On April 20, 2010, an explosion on Deepwater Horizon tragically killed eleven people and accompanied an oil spill that caused an environmental disaster of immense proportion. Millions of gallons of oil spewed from the well site over the course of several months as the defendants and government authorities sought to stop it.

In the face of an extensive oil spill, federal law directs the President to ensure the effective and immediate removal of the oil in accordance with a National Contingency Plan and to direct all federal, state and private actions in that regard. See33 U.S.C. § 1321(c)(1)(A), (2)(A). Consistent with the National Contingency Plan, the President must also create a National Response System, which establishes multiple levels of federal contingency plans for addressing a discharge of oil and hazardous substances. 33 U.S.C. § 1321(j); see also40 C.F.R. § 300.210. Pursuant to these plans, a Federal On–Scene Coordinator (“FOSC”) will direct and coordinate all efforts at the scene of the discharge. 40 C.F.R. § 300.120(a). When a discharge occurs in a coastal zone of the United States, the Coast Guard provides the FOSC, and if the spill is especially complex the Coast Guard can name a National Incident Commander to assume the role of the FOSC. See40 C.F.R. §§ 300.120(a)(1), 300.5, 300.323.

In the case of the Deepwater Horizon disaster, the federal government's response to the spill involved monumental efforts. Almost 50,000 people, including over 17,000 National Guard members, and over 4,000 vessels were deployed in the Gulf of Mexico and the coastal region. Federal oversight of the matter spanned multiple governmental agencies, with the President dispatching to the Gulf region the Secretaries of the Interior and Homeland Security, the Administrator of the EPA, the President's Assistant for Energy and Climate Change Policy, and the Administrator of NOAA. BP participated in the response activities at the direction of the federal authorities to stop the oil spill. On July 15, 2010, a permanent cap was put in place at the well site to halt the flow of oil. On September 19, 2010, the National Incident Commander announced that a relief well had been completed, which effectively “killed” the Macondo well.

Meanwhile, as the response efforts were ongoing, the Center filed suit against BP and Transocean on June 18, 2010, alleging that the defendants violated CWA because of the discharged oil and toxic pollutants from the ruptured well. In August 2010, the Center filed a second action against BP and Transocean asserting additional claims under CWA, CERCLA, and EPCRA. The Center asserted the following counts of statutory violations: discharge of pollutants, in violation of CWA, 33 U.S.C. § 1311 (Count 1); discharge of oil and hazardous substances, in violation of CWA, 33 U.S.C. § 1321 (Count 2); discharge of toxic pollutants, in violation of CWA, 33 U.S.C. § 1317 (Count 3); discharge of pollutants, in violation of national standards of performance for offshore drilling operations under CWA, 33 U.S.C. § 1316 (Count 4); gross negligence or willful misconduct pursuant to CWA, 33 U.S.C. § 1321(b)(7)(D) (Count 5); failure to report to the National Response Center the release of hazardous substances, in violation of CERCLA, 42 U.S.C. § 9603(a) (Count 6); and failure to report the release of hazardous substances to the emergency coordinator for the local emergency planning committee, in violation of EPCRA, 42 U.S.C. § 11004 (Count 7).

In its prayer for relief, the Center sought the following: (1) a declaratory judgment that the defendants had violated, continued to violate, or were reasonably likely to continue to violate CWA, CERCLA, and EPCRA; (2) an injunction enjoining the defendants from operating their offshore facility in a manner that would result in further violation of CWA, CERCLA, and EPCRA, specifically from discharging any further pollutants or from releasing any hazardous substance without full and complete reporting under CERCLA and EPCRA, and requiring full and complete reporting for hazardous substances already released; (3) an order that the defendants divulge the complete list and amounts of toxic pollutants contained in the oil and other releases from the Deepwater Horizon rig and well; (4) civil penalties pursuant to CWA, CERCLA, and EPCRA; (5) an order authorizing the Center to sample any discharge of pollutants from the well for a period of ten years; (6) an order requiring the defendants to provide the Center with copies of all reports and other documents that defendants submit to regulatory authorities for a period of five years; and (7) an injunction requiring the defendants to pay the cost of any environmental restoration or remediation deemed necessary by the district court.

The Multidistrict Litigation (“MDL”) Panel transferred the Center's complaints to MDL–2179 in the Eastern District of Louisiana (Judge Barbier). The MDL case before Judge Barbier consists of hundreds of cases, with over 100,000 individual claimants, all in connection with the Deepwater Horizon disaster. In order to manage this complex litigation, the district court issued Pretrial Order No. 11 establishing several “pleading bundles” into each of which claims of similar nature would be placed for the purpose of filing a master complaint, answers, and any Rule 12 motions. The Center's complaints were placed into Pleading Bundle D1, which was for claims by private parties for injunctive relief and provided as follows:

D. Injunctive and Regulatory Claims. These claims brought by private parties challenging regulatory action or authority and/or seeking injunctive relief will each be pled pursuant to Master Complaints as delineated below, and will include the following types of claims.

D1. Claims Against Private Parties. These claims will be pled separately and uniformly in a Master Complaint.

For purposes of answering or otherwise responding to the complaints in Pleading Bundle D1, the allegations and prayers for relief contained in the Master Complaint were deemed to amend and supersede allegations and claims contained in the pre-existing individual complaints. The Center's individual complaints were not eliminated, however, but rather were stayed until further order of the court.

Consistent with the pretrial order, the D1 plaintiffs, including the Center, filed a Master Complaint that was in most respects similar to the Center's individual complaints. The D1 Master Complaint alleged the same violations of CWA, CERCLA, and EPCRA that had been alleged in the Center's complaints, as well as additional claims under the Endangered Species Act (“ESA”), state law, and general maritime law.¹ The...