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 for the Fifth Circuit
January 9, 2013
Appeal from the United States District Court for the Eastern District of Louisiana
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),
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. See
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,
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
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 Master Complaint also sought essentially the same declaratory and injunctive relief that was sought in the Center‘s
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 B1, Pleading Bundle B3, and/or pleading Bundle D1, 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 D1 Master Complaint pursuant to
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 D1 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
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
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 [w]ithout 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 D1 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
III. STATUTORY PROVISIONS
The CWA was intended to restore and maintain the chemical, physical, and biological integrity of the Nation‘s waters.
CERCLA and EPCRA require, inter alia, that discharges of certain pollutants and hazardous substances be reported to the National Response Center, see
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,
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
Here, the district court noted at the hearing on the defendants’ motions to dismiss the D1 Master Complaint that the Macondo well was dead. The court did not, either at the oral hearing or in its written decision, indicate the source or sources upon which the court relied for this information. Nevertheless, the record bears out the district court‘s statement.
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, 645 F.2d 404, 413 (5th Cir. 1981).
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
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
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., 760 F.2d 580, 587 (5th Cir. 1985) (holding that party did not properly challenge the
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.
[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., 528 U.S. 167, 189 (2000) (citation omitted); see also Spencer, 523 U.S. at 7 (This case-or-controvesy requirement subsists through all stages of federal judicial proceedings.) (internal quotation marks and citation omitted). If a case has been rendered moot, a federal court has no constitutional authority to resolve the issues that it presents. Envtl. Conservation Org., 529 F.3d at 525. Mootness applies when intervening circumstances render the court no longer capable of providing meaningful relief to the plaintiff. See Harris v. City of Houston, 151 F.3d 186, 189 (5th Cir. 1998); see also Pac. Ins. Co. v. Gen. Dev. Corp., 28 F.3d 1093, 1096 (11th Cir. 1994).
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.
We have explained, however, that this standard applies when a defendant‘s voluntary conduct is claimed to have mooted the plaintiff‘s suit. Envtl. Conservation Org., 529 F.3d at 527. For example, we explained that this standard would be necessary if an alleged polluter asserted that CWA claims became moot when it voluntarily hired the requisite number of compliance and monitoring staff or voluntarily set aside funds for supplemental environmental projects because otherwise there would no impediment to the [polluter‘s] laying off the new hires or reallocating the funds after the suit is dismissed. Id. In other words, when a defendant has taken voluntary measures to stop a statutory violation because it is facing litigation but could otherwise revert to the offending conduct once litigation has ended, the defendant must bear the heavy burden of showing the impossibility of that result in order to prove mootness.
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 accounts in the record before us, the well site is now effectively dead. This is not the typical case where
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, 151 F.3d at 189 ([A] request for injunctive relief generally becomes moot upon the happening of the event sought to be enjoined.); see also Gwaltney, 484 U.S. at 66 (the mootness doctrine prevent[s] the maintenance of suit when there is no reasonable expectation that the wrong will be repeated) (citations and quotation marks omitted); cf. S.F. BayKeeper, Inc. v. Tosco Corp., 309 F.3d 1153, 1160 (9th Cir. 2002) (suggesting
The Center argues that its claims for civil penalties keep the case alive and preclude a finding of mootness. The Center‘s individual complaints requested civil penalties of up to $4,300 per barrel or $37,500 per day of violation pursuant to CWA, and up to $37,500 per day of violation for each hazardous substance not reported under CERCLA and EPCRA. It is true that the potential deterrent effect of civil penalties may in some cases prevent mootness even where injunctive relief has become moot. See Friends of the Earth, 528 U.S. at 185–86; Envtl. Conservation Org., 529 F.3d at 530; see also Powell v. McCormack, 395 U.S. 486, 496 n.8 (1969) (Where several forms of relief are requested and one of these requests subsequently becomes moot, the Court has still considered the remaining requests.). The Center‘s civil penalty claims do not save its complaint, however, because the Center abandoned those claims when it sought a final judgment from the district court for purposes of appeal.
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., 934 F.2d 599, 606 (5th Cir. 1991) (A party generally may not invite error and then complain thereof.). Indeed, the Center apparently acted strategically in order to pursue its appeal to this court. As the Seventh Circuit has explained, however, if plaintiff loses on A and abandons B in order to make the judgment final and thus obtain immediate review, the court will consider A, but B is lost forever. Fairley v. Andrews, 578 F.3d 518, 522 (7th Cir. 2009). We conclude, therefore, that the Center abandoned its civil penalty claims in order to obtain a final appealable judgment, and those claims may not now prevent a finding that the adjudicated claims in the complaint are moot.
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 EPCRA. 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 period of five years, copies of all reports that the defendants submit to regulatory authorities. This requested relief cannot conceivably remedy any past wrong but is aimed at deterring future statutory violations. Steel Co. v. Citizens for a Better Env‘t, 523 U.S. 83, 108 (1998). In Steel Company, the Supreme Court considered a similar request for relief under EPCRA and found it insufficient to confer Article III standing. See id. The Court reasoned that in order for such requested relief to provide the basis for Article III standing, there must be the prospect for continuing violations. See id. (If respondent had alleged a continuing violation or the imminence of a future violation, the injunctive relief requested would remedy that alleged harm.). Here, the Center did allege in its individual complaints that the defendants were likely to continue violating EPCRA by failing to report future discharges from the well site. But as already noted, the district court correctly noticed that the well has been killed and there is no competent record evidence of continued discharges from the site. Therefore, on the facts of this case, the issue of standing is not implicated, but because there is no longer a basis for the Center to seek copies of the defendants’ future reports, the requested relief has become moot.
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,
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,
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.
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.
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, 524 U.S. 11, 21 (1998) ([A] plaintiff suffers an ‘injury in fact’ when the plaintiff fails to obtain information which must be publicly disclosed pursuant to a statute.); see also Sierra Club, Inc. v. Tyson Foods, Inc., 299 F. Supp. 2d 693, 703–06 (W.D. Ky. 2003) (holding that denial of right to be informed of releases from defendant‘s facility afforded plaintiff standing to assert EPCRA claim for failure to report release of chemicals).
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
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
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, 948 F.2d 1436, 1446 (5th Cir. 1991). The Center argues here that the district court erroneously dismissed its claim for an injunction addressing remediation because a full remedial plan for the Gulf was not yet in
C. Case management
The Center also challenges the district court‘s case management of the MDL, specifically the district court‘s use of pleading bundles and the separation of the Center‘s claims for injunctive relief and civil penalties. The Center argues that the district court‘s failure to place its civil penalty claims into a pleading bundle (1) was contrary to the citizen-suit provisions of CWA, CERCLA, and EPCRA, which permit federal courts to impose both injunctive relief and civil penalties, and (2) resulted in a de facto dismissal of those claims.
A district court‘s decisions relating to case management are reviewed for an abuse of discretion. See Pierce v. Underwood, 487 U.S. 552, 558 n.1 (1988); In re Air Crash Disaster at Fla. Everglades on Dec. 29, 1972, 549 F.2d 1006, 1013 (5th Cir. 1977). The trial court‘s managerial power is especially strong and flexible in matters of consolidation. In re Air Crash Disaster, 549 F.2d at 1013; see also MANUAL FOR COMPLEX LITIGATION (FOURTH) § 10.1 (2004) (Although not without limits, the court‘s express and inherent powers enable the judge to exercise extensive supervision and control of litigation.). The Federal Rules of Civil Procedure specifically contemplate that in complex matters the district court may adopt special procedures for managing potentially difficult or protracted actions that may involve complex issues, multiple parties, difficult legal questions, or unusual proof problems.
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
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 EPCRA 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.