Tomas Carijano, et al v. Occidental Petroleum Corporation

May 31: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-56187 & 08-56270. The Appeals Court denied Occidental Petroleum Corp.'s bid for an en banc rehearing of a panel ruling that revived claims that the oil company's Peruvian unit polluted waterways and caused health problems for members of an indigenous group in northern Peru [See WIMS 6/2/11].

 

    In its brief order, the Appeals Court said, "The panel unanimously voted to deny the petition for panel rehearing. Judges Wardlaw and Gould also voted to deny the petition for rehearing en banc and Judge Schroeder so recommended. The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R. App. P. 35. Judge Bea was recused. The petition for rehearing en banc is denied.

 

    In the original Ninth Circuit appeal of June 2, 2011, Plaintiffs, 25 members of the Achuar indigenous group dependent for their existence upon the rainforest lands and waterways along the river, and Amazon Watch, a California corporation, sued Occidental in Los Angeles County Superior Court for environmental contamination and release of hazardous waste. Although Occidental's headquarters is located in Los Angeles County, Occidental removed the suit to Federal district court where it successfully moved for dismissal on the ground that Peru is a more convenient forum. Plaintiffs appealed the dismissal of their suit.

 

    The majority ruled, "Occidental had a substantial burden to persuade the district court to invoke the 'exceptional tool' of forum non conveniens and deny Plaintiffs access to a U.S. court. . . Occidental failed to meet that burden, and a proper balance of all the relevant factors at this stage of proceedings clearly demonstrates that this lawsuit should proceed in the Central District of California. We therefore reverse the district court's dismissal on the basis of forum non conveniens. We need not reach Plaintiffs' argument that the district court abused its discretion in denying discovery before ruling on Occidental's motion. We remand this case to the district court to consider the question of Amazon Watch's standing, and for further proceedings consistent with this opinion."

 

    Access the order and dissenting and concurring in denial of rehearing en banc opinions  (click here). Access the original Ninth Circuit opinion and dissent (click here).  [#Haz, #Toxics, #CA9]

 

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Gulf Restoration Network, Inc., et al v. Ken Salazar (DOI)

May 30: In the U.S. Court of Appeals, Fifth Circuit, Case No. 10-60411, consolidated with Case Numbers 10-60413, 10-60414, 10-60415, 10-60416. Petitions for Review of Orders of the Department of Interior (DOI). The Appeals Court recounts that on April 20, 2010, BP's Deepwater Horizon, an oil drilling rig on the outer continental shelf, 50 miles from Louisiana, exploded, causing a three-month long spill of 4.9 million barrels of oil into the Gulf of Mexico. Before and during the oil spill, the Department of the Interior (DOI) continued to process mineral lessees' applications for approval of plans for exploration and development of new oil wells.

 

    The petitioners in this case, the Sierra Club, the Gulf Restoration Network, and the Center for Biological Diversity (the Center), filed petitions for judicial review in the Appeals Court challenging sixteen DOI plan approvals, issued between March 29 and May 20, 2010, under the Outer Continental Shelf Lands Act (OCSLA). Specifically, the petitioners argue that the DOI's approvals of the plans violated both the OCSLA and the National Environmental Policy Act of 1969 (NEPA) because: (1) the DOI failed to consider the BP Deepwater Horizon disaster in approving further deepwater drilling; and (2) the DOI conducted an inadequate review of the plans under NEPA, because it incorrectly applied "categorical exclusions" (from the NEPA requirements of preparing environmental assessments or environmental impact statements) to those plans, which should not have been so excluded because they involved drilling in "relatively untested deep water," "areas of high biological sensitivity," "areas of high seismic risk or seismicity," or "areas of hazardous natural bottom conditions." As to the second argument, the Center emphasizes that the BP Deepwater Horizon disaster further shows the inherent inadequacy of the DOI's environmental analyses underlying the categorical exclusions. The petitioners requested the Appeals Court to vacate the DOI's approvals of the sixteen plans and remand the plans to the DOI for further proceedings consistent with OCSLA and NEPA.

 

    The Appeals Court indicates, "We conclude that: (1) the petitioners' OCSLA-based challenges are justiciable, except for four, which have become moot; (2) the DOI's approval of the exploratory and development plans are subject to judicial review by this

court under OCSLA, 43 U.S.C. § 1349(c)(2); (3) the petitioners' failure to participate in the administrative proceedings related to the DOI's approval of the plans as required by § 1349(c)(3) does not oust our jurisdiction because that participation requirement is a non-jurisdictional administrative exhaustion rule; but, (4) the petitioners have not shown sufficient justification for excusing them

from that exhaustion requirement in this case. Accordingly, except for four of the petitioners' petitions for judicial review that are dismissed as moot, the petitioners' petitions for judicial review are dismissed because of their failure to participate in the administrative proceedings."

 

    The Appeals Court says further, "The petitioners have not shown that, under OCSLA, the DOI's actions or omissions caused their failure to participate in the administrative proceedings, as required by §1349(c)(3), in order to subject the DOI's approval of the plans involved here to judicial review. For these reasons we conclude that, if we could recognize an exception to §1349(c)(3)(A)'s requirement that judicial review shall be available only to a person who participated in the pertinent administrative proceeding, the petitioners have not shown that they are entitled to such an exception or excuse in this case."

 

    Access the complete opinion (click here). [#Energy/OCS, #CA5]

 

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