In re Oil Spill by the Oil Rig "Deepwater Horizon" in the Gulf of Mexico, on April 20, 2010, MDL No. 2179.

CourtU.S. District Court — Eastern District of Louisiana
Writing for the CourtCARL BARBIER
Citation844 F.Supp.2d 746
PartiesIn re: OIL SPILL BY THE OIL RIG “DEEPWATER HORIZON” IN the GULF OF MEXICO, ON APRIL 20, 2010. Applies to: 10–4536.
Docket NumberMDL No. 2179.
Decision Date22 February 2012

844 F.Supp.2d 746

In re: OIL SPILL BY THE OIL RIG “DEEPWATER HORIZON” IN the GULF OF MEXICO, ON APRIL 20, 2010.
Applies to: 10–4536.

MDL No. 2179.

United States District Court,
E.D. Louisiana.

Feb. 22, 2012.


[844 F.Supp.2d 747]


ORDER AND REASONS
[As to the United States', Transocean's, and Anadarko's Cross–Motions for Partial Summary Judgment Regarding Liability under the CWA and OPA]

CARL BARBIER, District Judge.

Before the Court are three cross-motions for partial summary judgment regarding the liability of BP Exploration and Production, Inc. (“BP”), Anadarko Petroleum Corporation (“Anadarko”), Anadarko E & P Company LP (“Anadarko E & P”), and the Transocean entities 1 (“Transocean”) (sometimes collectively referred to as “Defendants”) under the Oil Pollution Act of 1990 (“OPA”) and the Clean Water Act 2 (“CWA”). (Rec. Docs. 4836, 5103, 5113).3

I. BACKGROUND

For purposes of the instant Motions, the following facts are not in dispute: At all relevant times, BP and Anadarko were co-lessees of Block 252, Mississippi Canyon (“MC 252”), on the Outer Continental Shelf. BP and Anadarko also co-owned the Macondo Well, an exploratory well on MC 252. At all relevant times, the DEEPWATER HORIZON, a mobile offshore drilling unit (“MODU”), was owned and operated by one or more of the Transocean entities. From February 2010 until April 2010, the DEEPWATER HORIZON was engaged in drilling activities on the

[844 F.Supp.2d 748]

Macondo Well. On April 20, 2010, while the DEEPWATER HORIZON was preparing to temporarily abandon the well, a blowout of the Macondo Well occurred, resulting in explosions and fire on the DEEPWATER HORIZON. On April 22, 2010, the DEEPWATER HORIZON sank into the Gulf of Mexico, breaking the riser pipe that connected the MODU to the Macondo Well in the process. Oil flowed from the Macondo Well, up the wellbore, through the blowout preventer (“BOP”) and remaining segment of riser pipe, and into the Gulf of Mexico, and continued to do so until July 15, 2010.4 The BOP and riser are appurtenances of the DEEPWATER HORIZON.

Following these events, the United States instituted case number 10–4536, United States v. BP Exploration & Prod. Inc., et al., which alleged two claims for relief. First, the Government asserted civil penalties against the Defendants 5 pursuant to Section 311(b)(7) of the CWA, 33 U.S.C. § 1321(b)(7). The second claim sought a declaratory judgment that the Defendants are liable to the United States under OPA for past and future removal costs and damages resulting from the discharge of oil.

The Government moved for partial summary judgment on the issues of liability under the CWA and OPA. (Rec. Doc. 4836). Each Defendant filed an opposition to the Government's Motion. (Rec. Docs. 5124, 5113, 5103). Additionally, the Anadarko entities cross-moved for partial summary judgment that they are not liable for CWA penalties as a matter of law. Transocean also cross-moved for partial summary judgment, urging that it is not liable under either OPA or the CWA with respect to the underwater discharge of oil.

II. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate when “the movant shows that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994). “A party asserting that a fact cannot be ... genuinely disputed must support the assertion by ... citing to particular parts of material in the record, including depositions, documents, ... or other materials....” Fed.R.Civ.P. 56(c)(1). When assessing whether a dispute as to any material fact exists, the Court considers “all of the evidence in the record but refrains from making credibility determinations or weighing the evidence.” Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir.2008). All reasonable inferences are drawn in favor of the nonmoving party, but a party cannot defeat summary judgment with conclusory allegations or unsubstantiated assertions.

[844 F.Supp.2d 749]

Little, 37 F.3d at 1075. A court ultimately must be satisfied that “a reasonable jury could not return a verdict for the nonmoving party.” Delta, 530 F.3d at 399.

If the dispositive issue is one that the moving party will bear the burden of proof at trial, the moving party “must come forward with evidence which would ‘entitle it to a directed verdict if the evidence went uncontroverted at trial.’ ” Int'l Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1263–64 (5th Cir.1991) (citation omitted). The nonmoving party can then defeat the motion by either countering with sufficient evidence of its own, or “showing that the moving party's evidence is so sheer that it may not persuade the reasonable fact-finder to return a verdict in favor of the moving party.” Id. at 1265. If the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record is insufficient with respect to an essential element of the nonmoving party's claim. See Celotex, 477 U.S. at 325, 106 S.Ct. 2548. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. See id. at 324, 106 S.Ct. 2548. The nonmovant may not rest upon the pleadings, but must identify specific facts that establish a genuine issue for trial. See, e.g., id. at 325, 106 S.Ct. 2548;Little, 37 F.3d at 1075.

III. DISCUSSION
A. Anadarko E & P

On April 20, 2010, Anadarko E & P submitted an application to the Minerals Management Service (MMS) to reassign its 22.5% interest in the Macondo lease to Anadarko, which the MMS approved on April 28, 2010. The Anadarko entities argue that the assignment was retroactive to April 1, 2010. The Government initially argued that the assignment was not retroactive and that both Anadarko E & P and Anadarko were liable under OPA and the CWA. However, it appears the Government has receded from this position, although it is not entirely clear to what extent.6 In light of this, the Court finds that the United States is not entitled to summary judgment as to Anadarko E & P. However, the Court does not determine at this time whether the assignment of the lease was legally retroactive, nor does it affirmatively determine that Anadarko E & P is not liable under the CWA or OPA. In this respect, the United States' Motion for Partial Summary Judgment is simply denied.

B. The Oil Pollution Act

The Government argues that BP, Anadarko, and Transocean are jointly and severally liable under OPA for removal costs and damages, because oil discharged from both the Macondo Well, an offshore facility, and appurtenances (the BOP and riser segment) of the DEEPWATER HORIZON, a vessel. BP and Anadarko generally do not dispute their liability under OPA. Transocean, however, argues that it is not liable with respect to the discharge that occurred beneath the surface of the water, because only the lessees or permittees of the area are liable under OPA for such discharges.

Under OPA, “responsible parties” are strictly liable for removal costs and damages

[844 F.Supp.2d 750]

resulting from the discharge of oil.7 This framework is generally established in Section 1002(a):

Notwithstanding any other provision or rule of law, and subject to the provisions of this Act, each responsible party for a vessel or a facility from which oil is discharged ... into or upon the navigable waters or adjoining shorelines or the exclusive economic zone is liable for the removal costs and damages specified in subsection (b) of this section that result from such incident.
33 U.S.C. § 2702(a) (emphasis added).
Who is a “responsible party,” is set out in OPA's definition section, Section 1001:

“responsible party” means the following:

(A) Vessels.—In the case of a vessel, any person owning, operating, or demise chartering the vessel.

...

(C) Offshore facilities.—In the case of an offshore facility ..., the lessee or permittee of the area in which the facility is located....

33 U.S.C. § 2701(32). “Vessel,” as that term is used in Sections 1001 and 1002(a), “means every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water, other than a public vessel.” 33 U.S.C. § 2701(37). “ ‘[O]ffshore facility’ means any facility of any kind located in, on, or under any of the navigable waters of the United States, ... other than a vessel or a public vessel.” 33 U.S.C. § 2701(22). Furthermore, “facility,” as that term is used to define “offshore facility” and in Section 1002(a), means “any structure, group of structures, equipment, or device (other than a vessel) which is used for one or more of the following purposes: exploring for, drilling for, producing, storing, handling, transferring, processing, or transporting oil....” 33 U.S.C. § 2701(9). Thus, when oil discharges from a “vessel,” the responsible party is the owner, operator, or demise charterer of the vessel (hereinafter, “owner/operator”). When oil discharges from an “offshore facility,” the responsible party is the lessee or permittee of the area in which the facility is located (hereinafter, “lessee”).

As the words “other than a vessel” in the definitions for “facility” and “offshore facility” indicate, vessels and offshore facilities typically are mutually exclusive categories. However, OPA provides a hybrid definition for MODUs: “ ‘mobile offshore drilling unit’ means a vessel (other than a self-elevating lift vessel) capable of use as an offshore facility.33 U.S.C. § 2701(18) (emphasis added). In the MODU context, then, the responsible party is determined by how the MODU was used at the time of the incident (subject to the caveat created by Section 1004(b), discussed below)....

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19 practice notes
  • United States v. Transocean Deepwater Drilling Inc., Civil Action No. H–11–3638.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • March 30, 2013
    ...Deepwater Horizon on April 20, 2010. See In re: Oil Spill by the Oil Rig “DEEPWATER HORIZON” in the Gulf of Mexico on April 20, 2010, 844 F.Supp.2d 746, 747–48 (E.D.La.2012). The April 20, 2010 blowout event did not immediately result in the release of oil into the water. Instead, the colla......
  • United States v. BP Exploration & Prod., Inc. (In re Oil Spill by the Oil Rig “Deepwater Horizon”), MDL No. 2179.
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • September 4, 2014
    ...and Reasons [As to the Cross–Motions for Partial Summary Judgment Regarding Liability under the CWA and OPA] at 23–24, Rec. Doc. 5809, 844 F.Supp.2d 746, 761 (E.D.La.2012). A panel of the Court of Appeals recently affirmed this ruling. In re Deepwater Horizon, 753 F.3d 570 (5th Cir.2014). P......
  • A Canary in a Coal Mine: What We Haven’t Learned From Deepwater Horizon and How Courts Can Help
    • United States
    • Georgetown Environmental Law Review Nbr. 33-1, October 2020
    • October 1, 2020
    ...3d 657, 669 (E.D. La. 2014). 214. See In re: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010, 844 F.Supp.2d 746 (E.D. La 2012) (order and reasons as to the United States’, Transocean’s, and Anadarko’s cross-motions for partial summary judgment regarding......
  • The Revival of Respondeat Superior and Evolution of Gatekeeper Liability
    • United States
    • Georgetown Law Journal Nbr. 109-1, October 2020
    • October 1, 2020
    ...v. Bestfoods, 524 U.S. 51 (1998). 296. See supra Sections II.A.2.a, II.A.2.c. 297. In re Oil Spill by Oil Rig “Deepwater Horizon,” 844 F. Supp. 2d 746, 759 (E.D. La. 2012) (alteration in original) (quoting United States v. Coastal States Crude, 643 F.2d 1125, 1128 (5th Cir. 1981)), rev’d in......
  • Request a trial to view additional results
17 cases
  • United States v. Transocean Deepwater Drilling Inc., Civil Action No. H–11–3638.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • March 30, 2013
    ...Deepwater Horizon on April 20, 2010. See In re: Oil Spill by the Oil Rig “DEEPWATER HORIZON” in the Gulf of Mexico on April 20, 2010, 844 F.Supp.2d 746, 747–48 (E.D.La.2012). The April 20, 2010 blowout event did not immediately result in the release of oil into the water. Instead, the colla......
  • United States v. BP Exploration & Prod., Inc. (In re Oil Spill by the Oil Rig “Deepwater Horizon”), MDL No. 2179.
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • September 4, 2014
    ...and Reasons [As to the Cross–Motions for Partial Summary Judgment Regarding Liability under the CWA and OPA] at 23–24, Rec. Doc. 5809, 844 F.Supp.2d 746, 761 (E.D.La.2012). A panel of the Court of Appeals recently affirmed this ruling. In re Deepwater Horizon, 753 F.3d 570 (5th Cir.2014). P......
  • And United States v. BP Exploration & Prod., Inc. (In re Complaint), MDL No. 2179.
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • September 4, 2014
    ...and Reasons [As to the Cross–Motions for Partial Summary Judgment Regarding Liability under the CWA and OPA] at 23–24, Rec. Doc. 5809, 844 F.Supp.2d 746, 761 (E.D.La.2012). A panel of the Court of Appeals recently affirmed this ruling. In re Deepwater Horizon, 753 F.3d 570 (5th Cir.2014). P......
  • In re Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, MDL No. 2179.
    • United States
    • U.S. District Court — Eastern District of Louisiana
    • October 1, 2012
    ...as distinguished from a discharge that occurred at the water's surface. See Order & Reasons of Feb. 22, 2012, Rec. Doc. 5809 at 14–15, 844 F.Supp.2d 746, 755–56. Consistent with this holding, Transocean argues that it cannot be liable under OPA with respect to any subsurface discharge, a po......
  • Request a trial to view additional results
2 books & journal articles
  • A Canary in a Coal Mine: What We Haven’t Learned From Deepwater Horizon and How Courts Can Help
    • United States
    • Georgetown Environmental Law Review Nbr. 33-1, October 2020
    • October 1, 2020
    ...3d 657, 669 (E.D. La. 2014). 214. See In re: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010, 844 F.Supp.2d 746 (E.D. La 2012) (order and reasons as to the United States’, Transocean’s, and Anadarko’s cross-motions for partial summary judgment regarding......
  • The Revival of Respondeat Superior and Evolution of Gatekeeper Liability
    • United States
    • Georgetown Law Journal Nbr. 109-1, October 2020
    • October 1, 2020
    ...v. Bestfoods, 524 U.S. 51 (1998). 296. See supra Sections II.A.2.a, II.A.2.c. 297. In re Oil Spill by Oil Rig “Deepwater Horizon,” 844 F. Supp. 2d 746, 759 (E.D. La. 2012) (alteration in original) (quoting United States v. Coastal States Crude, 643 F.2d 1125, 1128 (5th Cir. 1981)), rev’d in......

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