District Court Finds Immunity for Deepwater Horizon Spill Responder
In a thirty-six (36) page decision issued on November 28, 2012, District Judge Barbier (i.e. – the District Judge presiding over the Multidistrict Litigation pending in the Eastern District of Louisiana surrounding the Deepwater Horizon incident) granted summary judgment in favor of Nalco, the manufacturer of a chemical oil spill dispersant used during the spill response efforts, holding that the Clean Water Act ("CWA") and the National Contingency Plan ("NCP") pre-empted the state and general maritime law claims asserted against Nalco.
The Plaintiffs' Steering Committee (the "PSC"), on behalf of various plaintiffs including, inter alia, vessel captains and crew participating in clean-up activities, workers that decontaminated vessels soiled by oil and/or dispersants, workers that participated in onshore clean-up, and coastal residents and vacationers, had filed a complaint against Nalco (among others), asserting claims under both the general maritime law and state law for injuries relating to exposure to oil, chemical dispersants, or a mixture of both. In September 2011, the Defendants collectively moved to dismiss the complaint, contending that they were entitled to derivative governmental immunity and/or that the claims were preempted by the CWA and the NCP. The Court denied the motion at that stage of the proceedings, but expressly permitted Nalco and the other Defendants to reassert such defenses following limited discovery. In early 2012, Nalco filed a renewed motion to dismiss, which was converted to a motion for summary judgment by Judge Barbier in April 2012.
Judge Barbier considered the history of the CWA, noting that the CWA has always authorized the President to take actions to remove or arrange for the removal of discharged oil. The Court also noted that the Oil Pollution Act of 1990 amended the CWA to, inter alia, expand federal authority and responsibility for oil spill responses, requiring the President to "ensure effective and immediate removal" of a discharge of oil. 33 U.S.C. § 1321(c)(1)(A). In a case where a "substantial spill" has occurred (i.e. – one that creates a substantial threat of a pollution hazard to the public health or welfare of the United States), the CWA requires that the President "direct all Federal, State, and private actions" to remove the oil and directs all federal agencies, States, or private parties participating in an oil spill response under the CWA to act in accordance with the NCP, and explicitly immunizes parties rendering care, assistance, or advice consistent with the NCP or as directed by the President from removal costs or damages that result from their actions or omissions. The two (2) dispersants manufacturered by Nalco and at issue were both listed on the NCP Product Schedule, and were also preauthorized for use in the Regional Response Plans for the U.S. Gulf regions affected by the Deepwater Horizon spill. On April 21, 2010, the Federal On-Scene Coordinator ("FOSC") authorized the first aerial application of the Nalco dispersants, and approved surface and subsea applications of the dispersants on a daily basis between April 2 and July 19.
The PSC's Complaint alleged that Nalco's dispersants were defective, unreasonably dangerous, and toxic under state tort law and general maritime law. In moving to dismiss the Complaint, Nalco argued that the claims were preempted because they conflicted with the FOSC's decisions to use the dispersants and/or presented an obstacle to the objectives of the CWA and NCP. In response, the PSC argued that the claims were for products liability and that the dispersants were "unreasonably dangerous" at the time that they were applied to the spill in 2010.
In ruling that the PSC's claims were preempted by the CWA and NCP, the Court first noted the CWA's fundamental objective to "ensure effective and immediate removal of a discharge . . . of oil . . . ." and the NCP's goal to "provide for efficient, coordinated, and effective action to minimize damage from oil. . . ." The Court then highlighted Congress's determination that these goals are best achieved if the President directs all levels of the response – federal, state, and private. While acknowledging that there has long been controversy over the use of chemical dispersants due to their toxicity, the Court nonetheless found that the CWA and NCP intended for the FOSC to weigh the pros and cons and determine whether it is appropriate to use a particular dispersant – a decision that should not be "second guessed" by the Court, a State or a private person during a response. In rejecting the PSC's products liability claims, the Court concluded that the effect of allowing such claims would be to create an obstacle to federal law by impeding the FOSC's ability to "ensure effective and immediate removal" of oil and the "efficient, coordinated, and effective" response intended by the NCP. The Court declined to address whether the dispersants were, in fact, toxic, defective, or unreasonably dangerous, finding that such considerations were irrelevant to the issue of preemption. The Court further declined to address Nalco's derivative immunity arguments, as resolution of the preemption issue was dispositive of Nalco's motion.
Motions of other defendants against whom the PSC also asserted claims relating to post-explosion clean-up efforts remain pending.
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