On February 16, 2016, the U.S. District Court for the Eastern District of Louisiana granted motions for summary judgment filed by spill responders: O’Brien’s Response Management, LLC, National Response Corporation, Marine Spill Response Corporation, Dynamic Aviation Group, Inc., Airborne Support, Inc., Airborne Support International, Inc., DRC Emergency Services, LLC, International Air Response, Inc., Lynden, Inc., Lane Aviation, Inc., Tiger Rentals, Ltd., The Modern Group, Ltd., and The Modern Group GP-SUB, Inc. (collectively referred to as the “Clean-Up Responders”).

Following the Deepwater Horizon incident in April 2010, various responders were tasked by the Federal On-Scene Coordinator (FOSC) with performing clean-up activities to minimize the impact of the event.  The initial response effort included a variety of Federal and State entities and officials, BP Exploration and Production, Inc., and its affiliated entities, and several other commercial entities and individuals who were engaged specifically to respond to the oil spill.  The other entities tasked with assisting in the clean-up efforts included the thirteen (13) Clean-Up Responders.

In August 2010, the Multidistrict Litigation Judicial Panel transferred each of the cases that arose from the Deepwater Horizon incident to the U.S. District Court for the Eastern District of Louisiana for consolidation and coordinated pretrial proceedings.  Claims relating to the cleanup efforts post explosion, including personal injury claims, were bundled together and brought against the Clean-Up Responders by various Plaintiffs.  The Complaint against the Clean-Up Responders alleged that the Plaintiffs were exposed to oil and other chemicals as a result of various acts or omissions on the part of the Clean-Up Responders.  The Complaint further alleged that the Defendants “failed to use reasonable safe chemicals in their attempts to respond to the Oil-Spill and failed to supply workers with appropriate equipment, thereby exacerbating the Plaintiff’s injuries.”

The Clean-Up Responders and the manufacturer of the dispersants used, Nalco, initially moved to dismiss the claims asserted in the Complaint, however, the Court denied the parties motion.  Following discovery, the Clean-Up Responders filed individual motions for summary judgment arguing that they were entitled to dismissal because they performed their acts in response to the Deepwater Horizon incident and pursuant to the authorization, direction, and ultimate control of the federal government.  Further, they asserted that the claims should be dismissed because they conflict with the federal response scheme set forth in the Clean Water Act (CWA), Oil Pollution Act of 1990 (OPA), and the National Contingency Plan (NCP), which by law, required the Clean-Up Responders to obey the directives issued by the federal government.  In January 2016, the Court issued an Order to Show Cause, indicating that it was prepared to dismiss certain Plaintiffs’ claims with prejudice if they failed to show cause in writing why the court should not dismiss their claims.

Ultimately, the Court found that the Clean-Up Responders were entitled to derivative immunity under the CWA, as the FOSC directed all oil spill response efforts on navigable waters of the United States.  This evidence made clear that the federal government directed and led the Deepwater Horizon response in the exercise of its legitimate authority.  In addition to being entitled the derivative immunity under the CWA, the Court found that the Clean-Up Responders were entitled to discretionary function immunity under the Federal Tort Claims Act (FTCA).  The Court stated that the evidence was clear that the decisions made by the federal government during the clean-up effort “involved an element of judgment or choice” and “were based on considerations of public policy.”  The Court recognized that critical objectives of the CWA and NCP are to ensure “effective and immediate removal of a discharge” and “efficient, coordinated, and effective action to minimize damage from oil spill.”  Based on this, the Court found that Plaintiff’s claims stood as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress and that permitting Plaintiff’s claims to proceed against the Clean-Up Responders would cause private commercial responders to not participate in future clean-up efforts.  While the Court dismissed a majority of the claims against the Clean-Up Responders, eleven (11) Plaintiff’s submitted responses to the Court as to why their specific claim should not be dismissed.  For the moment, the Court has reserved judgment on those claims.

To read a copy of the Eastern District of Louisiana’s Opinion, click here.

For more information about the Court’s decision and how it may apply to specific facts and circumstances, please do not hesitate to contact us at info@chaloslaw.com.