Thursday, January 10, 2013

Center For Biological Diversity v. BP

Jan 9: In the U.S. Court of Appeals, Fifth Circuit, Case No. 12-30136. Appealed from the United States District Court for the Eastern District of Louisiana. The Appeals Court explains that the 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 (CBD) appeals from the district court's dismissal of its action brought under the citizen-suit provisions of the Clean Water Act (CWA), the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA), and the Emergency Planning and Community Right-to-Know Act (EPCRA).
    The district court dismissed the suit for lack of standing, mootness, and failure to state a claim for relief. The Appeals Court said, "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, reverse in part the district court's judgment." The case is remanded for further proceedings.
    On the specific EPCRA claim, the Appeals Court said, "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. To be sure, the district court held that 'data regarding the spill and its cleanup are easily accessible,' but it cited no sources of information and made no findings as to where the information specifically required by EPCRA may be found.
    "If the information required by EPCRA's reporting provisions may indeed be easily located from alternate sources, it may be that a further order from the district court would provide no meaningful relief to the Center and its members. Such a conclusion, although not affecting the Center's standing, might render the claim moot. See Harris, 151 F.3d at 189. But we are simply unable to decide that question on this record, and the case therefore must be remanded to the district court for further proceedings."
   Miyoko Sakashita, oceans director for CBD said, "The public deserves to know exactly what toxins were spilled into our ocean during the Gulf spill, so we're very pleased to be a step closer with this ruling. It's a very important victory that BP could be finally forced to publicly disclose all the toxic components it spilled into the waters, but we're disappointed by the dismissal of our Clean Water Act claims. Throughout it all, we've insisted that those responsible for one of the worst environmental disasters in America's history should be held fully accountable for the profound damage they caused. The Gulf needs to be fully restored, both for the sake of its wildlife and for the people who depend on it for survival. We're certainly not there yet."
    Access the complete opinion (click here). Access a release from CBD (click here). [#Energy/OilSpill]
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