Judge dismisses environmental law claims by third-party organizations in BP litigation

By Rebecca Mowbray, The Times-Picayune The Times-Picayune

In a blow to environmental advocacy groups, U.S. District Court Judge Carl Barbier dismissed all environmental law claims by third-party organizations Thursday in the consolidated litigation over last year’s oil disaster in the Gulf of Mexico, saying that they don’t have standing because the oil has stopped and the responsible parties are cleaning up.

The ruling is the first to come from a May 26 hearing on motions filed by the defendants in the case over last year’s Deepwater Horizon explosion and Macondo well blowout. The motions sought to dismiss entire classes of claims dealing with economic damages, claims by first responders who have fallen ill, and claims by citizen advocacy groups.

Barbier’s decision in favor of rig owner Transocean Ltd. and well leaseholder BP severs all claims by third-party groups under the Clean Water Act, the Comprehensive Environmental Response, Compensation and Liability Act, the Emergency Planning and Community Right-to-Know Act of 1986, the Endangered Species Act and state law.

Environmental groups such as Defenders of Wildlife and the Center for Biological Diversity had asked the court to declare that the corporate defendants in the well blowout had violated major environmental laws and asked for an injunction to prevent the companies from operating their offshore facility in a manner that would result in further violation of those laws.

But Barbier said that plaintiffs must show that they have suffered injuries and that those injuries can be redressed if they prevail in court. In order for an injunction to be granted, it must provide some benefit or reduction in pollution. Because the oil has stopped flowing, Barbier said that neither of those conditions has been met, and no future-oriented injunction would have any bearing on a problem that was resolved in July 2010 when the well was brought under control.

“In this case, no such benefit may be achieved by the Court’s injunction. In fact, the injunction at this stage would be useless, as not only is there no ongoing release from the well, but there is also no viable offshore facility from which any release could possibly occur. The Macondo well is dead….Moreover, BP and the agencies comprising the Unified Area Command have been and are cleaning up the Gulf of Mexico. An injury is not redressable by a citizen suit when the injury is already being redressed,” Barbier wrote. “Plaintiffs here do not assert any deficiency in the federal and state remediation efforts, nor can Plaintiffs or the Court second-guess existing governmental remediation decision-making.”

In the final few minutes of the hearing in May, BP had argued that the citizen suits were a “distraction” and irrelevant because the government was already handling the subjects of their concern. Environmental groups had countered that there wasn’t much reason for confidence that the government was prepared to enforce laws like the Endangered Species Act since it had failed in its duties to prevent the oil blowout through careful regulation and law enforcement.

Greg Buppert, a staff attorney in Washington, D.C. with the organization Defenders of Wildlife, said Thursday that his group is disappointed with the result and would be taking a closer look at the ruling. An attorney for the Center for Biological Diversity couldn’t be reached.

Joel Waltzer, an environmental attorney in New Orleans representing groups like the Sierra Club and the Gulf Restoration Network, which did not have suits affected by this ruling, said that the judge is simply saying that it’s not the right time for the environmental groups to get involved, and it doesn’t mean they can’t get involved later on issues that are actionable.

Rebecca Mowbray can be reached at rmowbray@timespicayune.com or 504.826.3417.

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