This appeal arises from the multi-dis-trict 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 (“CERC-LA”), 42 U.S.C. § 9659(a), and the Emergency Planning and Community Right-to-
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 Deep-water 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. See 33 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 also 40 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. See 40 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
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, CERC-LA, and EPCRA; (2) an injunction enjoining the defendants from operating their offshore facility in a manner that would result in further violation of CWA, CERC-LA, and EPCRA, specifically from discharging any further pollutants or from releasing any hazardous substance without full and complete reporting under CERC-LA 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 Deep-water 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 Dl, 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 injunc-tive relief will each be pled pursuant to Master Complaints as delineated below, and will include the following types of claims.
Dl. 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
Consistent with the pretrial order, the Dl plaintiffs, including the Center, filed a Master Complaint that was in most respects similar to the Center’s individual complaints. The Dl Master Complaint alleged the same violations of CWA, CERC-LA, 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.
The district court’s Pretrial Order No. 11 provided that civil penalties requested in separate suits by governmental entities were to be placed in Pleading Bundle C. The order also provided that civil penalties would not be included in any other pleading bundles or master complaints. In Pretrial Order No. 25, the district court later clarified that “[a]ny case currently pending in the MDL that does not fall within pleading bundles A or C is deemed to fall within one or more of the following: Pleading Bundle Bl, Pleading Bundle B3, and/or pleading Bundle Dl, as may be applicable.” The Center’s civil penalty claims did not fall within Pleading Bundles A or C, and the Center unsuccessfully moved on three occasions in the district court to have all of its claims moved into Pleading Bundle C.
BP and Transocean separately moved to dismiss the Dl Master Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The district court conducted a hearing, during which it also considered motions to dismiss other pleading bundles. The district court granted the motions to dismiss the Dl Master Complaint, finding that (1) the Dl plaintiffs lacked standing because their alleged injuries were not redressable by a favorable decision, (2) the Dl claims were moot, and (3) the Dl claims were not actionable because the defendants were not “in violation” of the alleged statutes.
The court took judicial notice that the Macondo well had been capped on July 15, 2010, thereby stopping the uncontrolled flow of oil, and that the well had been permanently killed on September 19, 2010, when a relief well was used to pump cement into the Macondo well. The court reasoned, therefore, that the Dl plaintiffs’ claims were not redressable for two reasons. First, an injunction would be useless because there was no longer an ongoing release from the well, and there was no viable offshore facility from which any release could possibly occur. Second, because cleanup activities were ongoing under the direction of the National Incident Commander, the FOSC, and the Unified Area Command, any order from the court would implicate parties not before the court, and the plaintiffs could not show that an order would resolve any potential deficiency in the cleanup effort. The court further held that the plaintiffs lacked standing to bring their failure-to-report claim under EPCRA “[i]n light of the fact that there is no on-going release of oil and
Similarly, the court held that the claims for injunctive relief were moot. The court reasoned that because the Macondo well was dead and no longer discharging oil, an injunction could not provide meaningful relief in terms of stopping discharges that had already ceased. The court further noted that because Pretrial Order No. 11 had limited the D1 Master Complaint to injunctive relief, the D1 plaintiffs were not seeking the kind of civil penalties that otherwise might prevent mootness.
Finally, the court held that CWA, CERCLA, and EPCRA require plaintiffs to show a reasonable likelihood of an ongoing violation in order to have an actionable claim. But 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 dismissed the D1 Master Complaint in its entirety.
Following the district court’s written order, the Center filed an unopposed motion for clarification pursuant to Federal Rule of Civil Procedure 59(e), asking that the district court make explicit that the order dismissing the D1 Master Complaint was a final judgment that also dismissed the Center’s underlying individual complaints. Any confusion about the finality of the judgment with respect to the Center presumably existed because the district court’s order had adjudicated only claims for injunctive relief and did not mention the Center’s individual claims for civil penalties. Indeed, the Center’s motion advised that the Plaintiffs’ Steering Committee (“PSC”) believed the court’s order was not a final judgment under Federal Rule of Civil Procedure 54(b) but that the PSC did not oppose such a designation by the district court.
Thereafter, the Center filed a Notice of Non-Opposition, indicating that no party had opposed the motion for clarification. The Center again asked the district court to enter a final judgment. Approximately two months after filing the Notice of Non-Opposition, the Center filed a renewed motion for clarification, which had been temporarily withdrawn, yet again asking that an explicit final judgment be entered within 30 days. When the district court did not enter such an order, the Center’s counsel wrote a letter to the district court further raising the issue of a final judgment. Counsel asked that the court enter a final judgment in order to “allow the Center to exercise its right of appeal in this matter.” Counsel stated that “[without an entry of final judgment, the Center is in the untenable position of not being able to participate in the ongoing MDL while also not being clear that it is able to appeal the Court’s ruling.” None of the Center’s pleadings or correspondence suggested or requested that any of the Center’s claims would remain live following entry of the final judgment.
The district court then entered a final judgment “for the reasons stated in the Court’s Order Dismissing the Bundle DI' Master Complaint ... as that Order relates to [the Center’s individual complaints].” The Center now appeals.
II. STANDARD OF REVIEW
A district court’s dismissal for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) or for failure to state a claim pursuant to Rule 12(b)(6) is reviewed de novo. Ballew v. Cont’l Airlines, Inc.,
III. STATUTORY PROVISIONS
The CWA was intended “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). As a general matter, its provisions prohibit the unauthorized discharge of pollutants, including oil and other hazardous substances, into the waters of the United States, and set standards for evaluating discharges from various sources. See 33 U.S.C. §§ 1311, 1316, 1317, 1321. The CWA authorizes citizen suits to obtain injunctions and civil penalties, “payable to the United States Treasury, against any person found to be in violation of ‘an effluent standard or limitation’ under the Act.” Envtl. Conservation Org.,
CERCLA and EPCRA require, inter alia, that discharges of certain pollutants and hazardous substances be reported to the National Response Center, see 42 U.S.C. § 9603(a) (CERCLA), or to state and local emergency planning personnel. See 42 U.S.C. § 11004(b)(1) (EPCRA). Both statutes authorize citizen suits to enforce their requirements and also permit both injunctive relief and civil penalties. See 42 U.S.C. §§ 9659(a), (c) (CERCLA), 11046(a), (c) (EPCRA). Pursuant to CERCLA, the district court may “order such action as may be necessary to correct the violation.” § 9659(c).
IV. DISCUSSION
The Center challenges the district court’s dismissal of its claims, contending that the court failed to accept the well-pleaded facts of its complaint as true. It contends that the court improperly found that injunctive relief would be moot because the Center alleged that the defendants were reasonably likely to continue to discharge pollutants from the well site. According to the Center, because jurisdiction is determined at the time of filing the complaint, and the complaint alleged that there were continuing discharges of pollutants, it set forth plausible claims for relief. The Center further argues that the district court erroneously focused on the claim for injunctive relief enjoining the defendants from operating the offshore facility in violation of CWA, CERCLA, and EPCRA, while ignoring the Center’s other claims. It contends that because all of its claims for relief are redressable by the district court, it has standing and the suit should be reinstated.
Upon review of the briefs, the applicable law, and the record in this case, we conclude that the district court correctly dismissed most of the Center’s claims as moot. But before considering mootness with respect to the Center’s individual claims and prayers for relief, we first consider the district court’s taking of judicial notice that the Macondo well was capped in July 2010 and killed in September 2010, which was of central importance to the court’s decision.
A. Judicial notice
Pursuant to Federal Rule of Evidence 201, a court is “entitled to take judicial notice of adjudicative facts from reliable sources ‘whose accuracy cannot reasonably be questioned.’ ” Sosebee v. Steadfast Ins. Co.,
For example, on September 19, 2010, National Incident Commander Admiral Thad Allen issued a formal announcement that, due to BP’s completion of the relief well and cementing, the Macondo well was “effectively dead” and “poses no continuing threat to the Gulf of Mexico.” Admiral Allen indicated that the relief well was completed by BP under the direction and authority of the federal government’s science and engineering teams, and that the well’s killing had been confirmed by the Department of the Interior’s Bureau of Ocean Energy Management. Furthermore, on September 28, 2010, the Federal On-Scene Coordinator, Rear Admiral Paul Zukunft, also stated that the well had been killed on September 19, 2010, and that there had been no new oil introduced since July 15.
The Center argues that the district court was bound to accept the well-pleaded facts of the complaint concerning alleged future discharges from the well, essentially contending that the court improperly took judicial notice of the well’s closing. The district court was not bound by the pleadings in order to decide the Rule 12(b)(1) motion, however; rather, it was empowered to make factual findings that were determinative of jurisdiction. Williamson v. Tucker,
The Center further complains that it requested prior notice of any facts to be judicially noticed but received no advance warning. Ordinarily, a party should be given notice that the court intends to judicially notice facts and, when appropriate, should be given an opportunity for discovery germane to a jurisdictional dispute implicated by the noticed facts. See id. at 414; see also Fed.R.Evid. 201(e). We are not persuaded, however, that the district court’s procedure was erroneous under the circumstances of this case.
The court’s taking of judicial notice before notifying a party is not alone improper, as the rule specifically contemplates such a possibility but allows the party an opportunity to be heard if the party so requests. See Fed.R.Evid. 201(e) (“If the court takes judicial notice before notifying a party, the party, on request, is still entitled to be heard.”). Here, the Center had notice from the defendants’ motions to dismiss that the court was being asked to take judicial notice. BP specifically argued that the capping and killing of the well were judicially noticeable facts and that the Center’s claims were moot because the well was dead. The Center therefore had an opportunity to be heard and actually did-—albeit minimally— respond to BP in its opposition. Cf. In re Eckstein Marine Serv., L.L.C.,
More importantly, even after the district court took judicial notice in its written decision, the Center could have moved for reconsideration or a further hearing but it did not do so. See MacMillan Bloedel Ltd. v. Flintkote Co.,
Moreover, our conclusion is informed by the atypical circumstances of this case. As part of the MDL, the district court was receiving regular status updates about the situation in the Gulf and was kept apprised of the well’s condition and the ongoing efforts to shut it down. It is clear that the Government, which was in charge of the situation, acted to force BP to stop the discharge, kill the well, and abandon the site. Under all of the above circumstances, we conclude that there was no error in the district court’s taking of judicial notice of the well’s status. Therefore, we must next consider whether the district court, after taking judicial notice, correctly concluded that the Center’s individual claims are moot.
B. Mootness
Federal court jurisdiction under Article III of the Constitution is limited to “cases” and “controversies.” U.S. Const. art. III, § 2, cl. 1; see City of Los Angeles v. Lyons,
“[M]ootness can be described as ‘the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).’ ” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,
As noted above, the district court held that the Center’s case became moot after BP successfully killed the Macondo well because that event meant that any injunctive order to cease the discharge would be useless. The Center argues that the court’s reasoning was flawed because under the stringent test for mootness there must be absolutely no possibility for recurrence of the alleged violations. It points out that it alleged that the defendants were reasonably likely to continue to violate the environmental statutes. In cases dealing with alleged polluters it is often appropriate to place a “heavy” burden on defendants to prove that “it is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc.,
We have explained, however, that this standard applies when a defendant’s voluntary conduct is claimed to have mooted the plaintiffs suit. Envtl. Conservation Org.,
In this case, however, the defendants did not act voluntarily in a feigned effort to comply with the environmental statutes and stave off litigation. The killing of the Macondo well occurred at the insistence of the federal government acting pursuant to the extraordinary powers granted to the President to oversee and direct the emergency response to the oil spill. By all
1. Injunctive relief to stop violating CWA CERCLA and EPCRA
The Center first requested declaratory and injunctive relief declaring that the defendants violated CWA, CERCLA, and EPCRA, and enjoining them from operating the offshore facility in a manner that would result in further violations. As the district court found, however, the record shows that the Macondo well has been effectively killed and cemented shut, and there is no offshore facility at the site being operated by the defendants. Therefore, because there is no realistic prospect that further discharges will occur, there can be no meaningful relief granted by an injunctive order enjoining the defendants from operating the site in violation of CWA, CERCLA, and EPCRA. The district court correctly held that this claim is moot. See Harris,
The Center argues that its claims for civil penalties keep the case alive and
As noted above, the district court’s Pretrial Order No. 11 placed the Center’s complaints into Pleading Bundle Dl. The district court’s order dismissing the Dl Master Complaint did not address civil penalties, however. The district court’s opinion noted that the Dl pleading bundle was limited to injunctive claims. In an action involving multiple claims, a judgment that fails to resolve all of a party’s claims is not a final appealable order. See Fed.R.CivP. 54(b) (“[A]ny order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties.”); Thompson v. Betts,
The Center acted at its own peril and may not now complain when the district court did what it asked the court to do. See United States v. Baytank (Houston), Inc.,
2. Authorization to sample discharge
The Center next requested as relief an order authorizing it to sample or arrange for sampling of any discharge of pollutants from the well for a period of ten years after the defendants come into compliance with CWA, CERCLA, and EP-CRA. Because the well site is now dead there is no reasonable prospect for continued discharges, and thus nothing to sample. This claim for relief is therefore moot for the same reasons that the request for injunctive relief discussed above is moot.
3. Copies of reports
Next, the Center sought an order requiring the defendants to provide, for a
4. Reporting under CERCLA and EPCRA for substances already released
The Center further sought injunctive relief ordering the defendants to provide a complete reporting in accordance with CERCLA and EPCRA “for all hazardous substances already released.” The Center alleged first that the defendants’ failure to report the substances released violated Section 103 of CERCLA, 42 U.S.C. § 9603(a). That provision states, in relevant part, that the owner of an offshore facility “shall, as soon as he has knowledge of any release ... of a hazardous substance from such ... facility in quantities equal to or greater than those determined pursuant to section 9602 of this title, immediately notify the National Response Center ... of such release.” See also 40 C.F.R. § 302.6. The purpose of CERCLA’s reporting requirement is to ensure “the Government’s ability to move quickly to check the spread of a hazardous release.” United States v. Laughlin,
The Center’s complaint further alleged that the defendants did not report the types and quantities of pollutants released in the spill, which the Center contends was required by EPCRA, 42 U.S.C. § 11004. The district court held that the Center lacked standing to bring its EPCRA claim because it was “unclear how the data col
Pursuant to EPCRA, the owner or operator of a facility is required to provide notice of a release of certain extremely hazardous substances or substances covered under CERCLA to the “emergency coordinator for the local emergency planning committees ... for any area likely to be affected by the release and to the State emergency planning commission of any State likely to be affected by the release.” 42 U.S.C. § 11004(a), (b)(1). The purpose of the EPCRA framework is “to inform the public about the presence of hazardous and toxic chemicals, and to provide for emergency response in the event of [a] health-threatening release.” Steel Co.,
The defendants argue that EPCRA requires no particular form of notice that a release has occurred, and they assert that the information the Center seeks about the oil spill is readily available on various government web sites. They contend, therefore, that the Center’s claim is moot because it has been overtaken by the presence of information, including health and safety information, available on the Internet. The defendants’ argument essentially challenges the redressability of the Center’s claimed injury, but we are not persuaded.
Under EPCRA, the initial notice to state and local emergency planners may be oral and given by “telephone, radio, or in person.” 42 U.S.C. § 11004(b)(1). But the owner or operator must also provide written emergency followup notice “[a]s soon as practicable after a release.” § 11004(c); see 40 C.F.R. § 355.41. Both the initial notice and the written followup emergency notice are required to include, inter alia, the name and estimated quantity of any substance involved in the release, the medium or media into which the release occurred, any known or anticipated acute or chronic health risks associated with the release, and precautions to take as a result of the release. § 11004(b), (c); see also 40 C.F.R. §§ 355.11, 355.40. The written notices must be maintained by the state emergency response commission and must be made available to members of the general public. See §§ 11001(a), 11044(a). The statute specifically authorizes “any person” to commence an action against an owner or operator for failing to submit the written emergency followup notice. § 11046(a)(l)(A)(i).
The Center provided affidavits from its members averring that they had been exposed to substances emanating from the disaster either through direct physical contact in the Gulf and on the shore or through contact with fish and other wildlife. Those members averred that they were concerned about breathing air or ingesting water exposed to the substances and wanted to know what types of substances were involved in the Deepwater Horizon release so that they could assess the possible health effects of the exposure. At least one member specifically averred that he had not seen any reports from BP documenting the substances that were released in the spill despite his search for such reports. This is the kind of concrete informational injury that the statute was designed to redress. See FEC v. Akins,
BP suggests in its brief that the Center’s informational injury claim is moot because there is no continuing discharge from the well, and it cites the Supreme Court’s decision in Steel Company. In that case, the Court did hold that the plaintiff could not maintain its EPCRA suit based solely on past violations of the statute. See Steel Co.,
The defendants’ insistence that the claim is moot because information about the spill is already publicly available is unavailing, at least on the current record. First, the claim that information about the disaster may be found by hunting on the Internet ignores the fact that EPCRA places an affirmative statutory duty on the owner or operator of the facility to report the information. Second, it ignores the EPCRA requirement that reports provided by owners or operators be maintained by state emergency planning authorities and be made available to the public at a designated location. See 42 U.S.C. §§ 11001(a), 11044(a). The obvious advantage of this requirement is to have vital health information available in one easily accessible place. Finally, although the defendants claim that the information is otherwise readily available, their citation to several government web sites is unconvincing. Our review of those web sites 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.
5. Remediation
Finally, the Center also sought injunctive relief ordering the defendants to remove the pollutants from the water and affected coastal areas, and to pay the costs of any environmental restoration or remediation that the court deemed necessary and proper. The district court held that because cleanup efforts by the defendants and by agencies from the federal government’s Unified Area Command were already underway in the Gulf of Mexico there was no further relief that it could order. The court further reasoned that it could not second-guess the Government’s remediation decisions. We agree with the district court.
The question when assessing whether a case is moot is whether any effective relief can be granted. See Vieux Carre Prop. Owners, Residents & Assocs., Inc. v. Brown,
C. Case management
The Center also challenges the district court’s case management of the MDL, spe
A district court’s decisions relating to case management are reviewed for an abuse of discretion. See Pierce v. Underwood,
To say the least, the instant case presents an exceedingly complex matter, consisting of hundreds of individual cases and tens of thousands of claimants. In the face of this daunting litigation, and given the “broad grant of authority” to the district court, we perceive no error in those aspects of the court’s management of the MDL that are involved in this ease. In re Air Crash Disaster,
V. CONCLUSION
For the reasons stated above, we conclude, with one exception, that the district court did not err by dismissing the Center’s claims as moot. We further conclude that, on the present state of the record, the Center has standing to assert its claim for relief based on the defendants’ alleged failure to comply with the reporting requirements of EPCRA, and that the EP-CRA claim is not moot. We therefore AFFIRM IN PART and REVERSE IN PART the district court’s judgment and REMAND the case for further proceedings. Each party shall bear its own costs.
Notes
. The district court’s resolution of the claims under ESA, state law, and general maritime law are not part of the instant appeal.
. The Center's written opposition requested an opportunity to conduct discovery only if the court took judicial notice of any facts, but when the district court asked about evidence at the hearing, the Center apparently changed tracks and argued only that the court could still order injunctive relief in the form of appropriate cleanup measures. The Center indicated that at some unspecified future time hearings could be held and "experts” could educate the court, but it did not indicate a need for, nor did it request, immediate discovery on the well’s status or continued discharge of pollutants from the site.
. The Center suggests that the case is not moot because BP retains its National Pollutant Discharge Elimination System ("NPDES”) permit and could return to the well site. In support, the Center cites San Francisco BayKeeper and Puerto Rico Campers' Association v. Puerto Rico Aqueduct and Sewer Authority,
. The defendants make an alternative argument that the Center's CERCLA claim fails on the merits because of the so-called _ "petroleum exclusion,” which excludes "petroleum, including crude oil or any fraction thereof” from the definition of hazardous substances to be reported under CERCLA. See 42 U.S.C. §§ 9601(14), 9603(a); Wilshire Westwood Assocs. v. Atl. Richfield Corp.,
. Some of the web pages cited in the defendants' briefs lead to links to documents comprising thousands of pages of information. We do not think that the intent of EPCRA is met by requiring the public to search for a needle in a cyberspace haystack.
. The Center asserts that the D1 plaintiffs raised concerns about the nature of the cleanup efforts in the district court, but it cites without further discussion to the master complaint and to its opposition to the motions to dismiss. The problem with this argument is two-fold. First, an appellant may not incorporate by reference arguments made in the district court. See Turner v. Quarterman,