BP Am. Inc. v. Chustz

• Decision Date: 21 July 2014
• Docket Number: Civil Action No. 13–620–JJB–SCR.
• Citation: 33 F.Supp.3d 676
• Parties: BP AMERICA INC., et al. v. Stephen CHUSTZ, et al.
• Court: U.S. District Court — Middle District of Louisiana

33 F.Supp.3d 676

BP AMERICA INC., et al.

v.Stephen CHUSTZ, et al.

Civil Action No. 13–620–JJB–SCR.

United States District Court, M.D. Louisiana.

Signed July 21, 2014.

Pamela Roman Mascari, Kean, Miller, Hawthorne, D'Armond, Baton Rouge, LA, Dominic E. Draye, Jeffrey Bossert Clark, Kirkland & Ellis LLP, Washington, DC, for BP America Inc., et al.

Patrick Bayard McIntire, George Orvis Luce, Lawrence E. Marino, Oats & Marino, Lafayette, LA, for Stephen Chustz, et al.

RULING

JAMES J. BRADY, District Judge.

This matter is before the Court on the following motions: (1) the defendants' Motion [rec. doc. 15] to Dismiss for Failure to State a Claim and (2) the plaintiffs' Motion [rec. doc. 24] for Summary Judgment. Both motions are opposed. Rec. docs. 23 & 29. Jurisdiction is based on 28 U.S.C. § 1331. On June 2, 2014, the Court held oral argument regarding these motions. For the reasons provided herein, the Court (1) GRANTS IN PART and DENIES IN PART the defendants' Motion [rec. doc. 15] to Dismiss for Failure to State a Claim and (2) GRANTS IN PART the plaintiffs' Motion [rec. doc. 24] for Summary Judgment.

Factual Allegations

“On April 20, 2010, a loss of control over the Macondo well in Mississippi Canyon Block 252 of the Outer Continental Shelf resulted in an explosion that caused the sinking of the Deepwater Horizon oil rig and an ensuing oil spill.” Rec. doc. 1, p. 8, ¶ 20. The spill continued until July 2010, when BP America Inc. and/or its affiliated entities (collectively “BP”) installed a capping stack. Id. As the well's co-owner, BP acknowledged it was a “responsible party” under the Oil Pollution Act of 1990 (“OPA”), and as a result, it engaged in spill-response activities. Rec. doc. 1, p. 8, ¶ 21. The pending litigation is connected with the clean-up efforts necessitated by the oil spill.

Within days of the explosion on the Deepwater Horizon, “a comprehensive response infrastructure took shape under the direction of the Federal On–Scene Coordinator (‘FOSC’).” Rec. doc. 1, p. 8, ¶ 22. “Through the FOSC, the Unified Command, and the National Incident Command, the United States directed a military-style operation that at its height engaged more than 47,000 individuals, thousands of vessels, and dozens of aircraft.” Rec. doc. 1, p. 8, ¶ 23. These “[r]esponse activities and federal supervision continue to this day.” Id.

Under the Clean Water Act (“CWA”), “[i]f a discharge ... of oil or a hazardous substance from a vessel, offshore facility, or onshore facility is of such a size or character as to be a substantial threat to the public health or welfare of the United States ... the President shall direct all Federal, State, and private actions to remove the discharge or to mitigate or prevent the threat of the discharge.” 33 U.S.C. § 1321(c)(2)(A). “To prepare for a potential oil spill, the Clean Water Act directs the President to prepare and publish a National Contingency Plan (‘NCP’),” and during an oil spill, all relevant parties must act in accordance with the NCP or as otherwise directed by the President. Rec. doc. 1, p. 9, ¶ 25 (citing 33 U.S.C. § 1321(c)(3)(A) ). In the course of Deepwater Horizon clean-up efforts and pursuant to the NCP, the federal government established a “Unified Command” structure that “brought together the federal and state governments, as well as ‘responsible parties' (such as BP) under OPA, to take action to counter the spill.” Rec. doc. 1, p. 10, ¶ 27. Nonetheless, the Federal On–Scene Coordinator maintained decision-making authority at all times. Id.

As part of the spill response, the Unified Command created a Vessels of Opportunity (“VoO”) program. Rec. doc. 1, p. 10, ¶ 28. Under the VoO program, BP entered into Master Vessel Charter Agreements with participating vessel owners to assist in the spill-response efforts, including placing oil containment booms along the Gulf of Mexico coastline. Rec. doc. 1, p. 10, ¶ 28; p. 13, ¶ 36. To hold the containment booms in place, VoO participants attached Danforth anchors at intervals along the deployed booms. Rec. doc. 1, p. 11, ¶ 30; p. 13, ¶ 36. On July 15, 2010, after capping the well, response workers proceeded to collect the containment booms and anchors wherever feasible. Rec. doc. 1, p. 13, ¶ 36. However, as some anchors were lost or buried deep within the sediment, the response workers were unable to collect approximately 1,700 anchors. See id.

“In 2010 and 2011, the FOSC directed extensive studies into whether the so-called ‘orphan’ anchors could be located and recovered.” Rec. doc. 1, p. 13, ¶ 37. Advanced magnetometers and sonar could only locate a small percentage of the orphaned anchors, as many of the anchors were buried deep within the sediment. Id. In addition, the FOSC “commissioned a federal Net Environmental Benefits Analysis (‘NEBA’) for the removal of the anchors,” which analyzed health risks, environmental risks, and public safety risks potentially resulting from “three possible courses of action: (a) leaving the anchors in place, (b) locating and identifying the anchors, and (c) removing the anchors.” Rec. doc. 1, p. 13, ¶ 38. The NEBA's “ ‘Risk Matrix’ showed little risk in leaving the anchors in place, while removing them ‘show[ed] the highest risk and most dangerous consequences.’ ” Id. (internal citations omitted). Based on this work, the Federal On–Scene Coordinator concluded that she would “disapprove future analysis or removal measures related to potential navigation and environmental hazards purportedly posed by the presence of orphan boom anchors as no further analysis or action [was] warranted.” Rec. doc. 2–12, p. 4. The State of Louisiana's Coastal Protection and Restoration Authority objected to this decision, but the FOSC declined to reconsider her determination. Rec. doc. 1, p. 14, ¶ 39.

In 2013, the Louisiana Department of Natural Resources (“LDNR”) began making complaints regarding “a boat ramp that allegedly went missing from a vessel operated by one of BP's contractors working on the spill response.” Rec. doc. 1, p. 14, ¶ 41. After unsuccessful search efforts, a report was prepared for the FOSC, which concluded that “[b]ased on the extensive efforts and multiple techniques utilized, additional surveying appears unlikely to locate [the] target ramp.” Rec. doc. 1, p. 14, ¶ 41; rec. doc. 2–15, p. 3. The Federal On–Scene Coordinator signed the report acknowledging receipt of the document. Rec. doc. 2–15, p. 2.

Thereafter, the LDNR demanded that BP submit a plan to locate and remove both the anchors and the vessel ramp. Rec. doc. 1, p. 15, ¶ 42. Initially, BP refused to comply and explained “that it was obligated to follow the FOSC's orders.” Id. As a result, the LDNR issued an August 21 cease and desist order that directed BP to “[s]ubmit a complete and acceptable application for a Coastal Use Permit ... to remove these encroachments from State waterbottoms, ... [including] a recovery plan for all abandoned boom anchors and the vessel ramp.” Rec. doc. 2–19, p. 5. In addition, the order commanded BP to “[l]ocate and recover all abandoned boom anchors and vessel ramp within 120 days of the approval of the recovery plan.” Id.

Due to the cease and desist order, the plaintiffs BP America Inc., BP Exploration & Production Inc., and BP Corporations North America Inc. filed the pending lawsuit seeking declaratory and injunctive relief against the LDNR's efforts to force removal of the orphaned anchors. The crux of the plaintiffs' arguments is that the LDNR's cease and desist order is preempted by federal law pursuant to field preemption, impossibility preemption, and obstacle preemption. Specifically, the plaintiffs argue that the FOSC's actions foreclose all future removal efforts. In the course of litigation, the parties filed the pending motions. As these motions are related, the Court will address each in this ruling.

Analysis

1. Defendants' Motion to Dismiss for Failure to State a Claim (Rec. Doc. 15)

a. Standard of Review

Initially, the Court will consider the defendants' motion to dismiss. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). “In reviewing a Rule 12(b)(6) motion, the Court must accept all well-pleaded facts in the complaint as true and view them in the light most favorable to the plaintiff.” Davis v. Bellsouth Telecomm., 2012 WL 2064699, at *1 (M.D.La. June 7, 2012) (citing Baker v. Putnal, 75 F.3d 190, 196 (5th Cir.1996) ). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 663, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955 ). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.”Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955 ). The Court does not have to accept as true any legal conclusion contained in the complaint. Id. Moreover, the Court can consider documents attached to the complaint or incorporated by reference. See Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 763 (5th Cir.2011) (quoting Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir.2008) ) (“Generally, a court ruling on a 12(b)(6) motion may rely on the complaint, its proper attachments, ‘documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.’ ”). As the plaintiffs attached numerous exhibits to the complaint, the Court will take these documents into consideration in ruling on the motion to dismiss. See rec. doc. 2–1 through rec. doc. 2–20.

b. Relevant Statutory and Regulatory Background

As the Clean...