Chipping Away at Oil Spill Claims,|BP Says State Laws Don’t Apply

NEW ORLEANS (CN) – BP wants to dismiss 12 oil-spill claims from states in Mexico, district attorneys in Louisiana, and Alabama cities, because they allege state law violations, though the Gulf oil spill is a matter for federal law.




     “It would be quite a feat for one federal statute (OPA) [the Oil Pollution Act], by silence, to strip other federal statutes (the CWA and OCSLA) [Clean Water Act and Outer Continental Shelf Lands Act] of the preemption necessary for their operation,” BP attorneys wrote. (Parentheses, but not brackets, in original)
     BP claim that because the oil spill came on the Outer Continental Shelf, which is subject to the federal Outer Continental Shelf Lands Act (OCSLA), state laws do not apply, even when the oil damaged state waters and coastlines.
     And because federal law takes precedent, BP says, the lawsuits from the Alabama cities and Mexican states must be thrown out for violating OPA regulations, which require presentment of claims before a lawsuit is filed.
     Finally, BP says, the Mexican states’ lawsuits do not allege any actual damages, and there is no contract between the United States and Mexico regarding to recovery of environmental damages caused by oil spills from foreign entities.
     “A state has no independent authority, under common law or otherwise, to regulate pollution that originated from a source outside its territory, even if the effects of the pollution are felt within the state. See Int’l Paper Co. v. Ouellette, 479 U.S. 481 (1987),” BP says in its complaint.
     “Although the law under OCSLA is exclusively federal, its content may be borrowed from the law of the adjacent state. But the adjacent state’s law may apply (if at all) (i) only indirectly as surrogate federal law and (ii) only if necessary to fill a gap in federal law. … In this case, because OPA and the Clean Water Act provide comprehensive remedial and penal schemes to address oil spills, there is no place for state law, and all state law claims brought by the Alabama cities, the Mexican states, and the Louisiana district attorneys are preempted,” according to the complaint.
     (Parentheses in complaint.)
     In August 2010, at the urging of the federal government, BP, as “responsible party,” established a $20 billion fund to pay claims through its Gulf Coast Claims Facility (GCCF), which is overseen by Kenneth Feinberg. The purpose of the facility, under OPA, is to provide a way for claimants to circumvent litigation, which could take years, and get a quick payment for damages from the oil spill.
     BP says that lawsuits by the Mexican states and Alabama cities were filed without presentment to the GCCF, so should be dismissed.
     BP adds that even if the Mexican states did present claims to BP before filing lawsuits, it wouldn’t matter, because there is no oil spill agreement between the United States and Mexico.
     “The Mexican States concede that, because they are foreign claimants, OPA requires that they ‘shall demonstrate’ that recovery is ‘authorized’ by a treaty or executive agreement between the United States and Mexico. … The Mexican states cite four treaties that they contend ‘provide for the protection of the environment’ and thus ‘authorize their claims.'”
     But BP says that isn’t true, as none of the agreements the Mexican states cite and “to which the United States is a party contains such provisions. These agreements touch on certain environmental or boundary issues, but do not authorize recovery of removal costs or damages, as required by OPA if a foreign claimant is to recover.
      “In the Agreement of Cooperation Between the United States of America and the United Mexico States Regarding Pollution of the Marine Environment by Discharges of Hydrocarbons and Other Hazardous Substances (“Hydrocarbon Pollution Agreement”), the United States and Mexico ‘agree[d] to establish a United States-Mexico joint-contingency plan regarding pollution of the marine environment by discharges of hydrocarbons and other hazardous substances …, with the object of developing measures to deal with such polluting incidents and ensuring an adequate response. … The agreement does not authorize Mexico claimants to pursue damages under OPA or any other law, or otherwise mention compensation,” BP says. (Parentheses and ellipses in original.)
     Somewhere between 130,000 and 140,000 litigants seek damages in the oil spill litigation. Because every lawsuit has several plaintiffs, slightly fewer than 400 lawsuits have been filed.
     The litigation stems from the April 20, 2011 explosion of the Deepwater Horizon that killed 11 and set off the worst oil spill in U.S. history.
     Attorneys overseeing the case have sorted claims into bundles, depending on allegations. The 12 cases BP wants to dismiss belong to Bundle C.
     “In an effort to avoid preemption under the Clean Water Act, plaintiffs contend that BP’s arguments rely on an ‘overextended misrepresentation’ of the holding of Ouellette. (Mex. States’ Br. at 30-32; see also La. District Attorneys’ Br. at 7-8; PSC’s Br. at 28-31.) On the contrary, Ouellette‘s holding is squarely on point: Ouellette held that only the federal … system and the law of the source state can regulate discharges of pollution within such a state, whereas other states (even if affected by the pollution) lack the power to regulate water pollution beyond their borders.” (Parentheses and italics in original.)
     BP added: “It would be quite a feat for one federal statute (OPA), by silence, to strip other federal statutes (the CWA and OCSLA) of the preemption necessary for their operation. Where, as here, Congress expressly limited a savings clause to save only those claims that would otherwise be preempted by a defined statute, it could not possibly have intended (without any indication in the text) that the same narrow savings clause could save claims that are expressly preempted by an entirely different and preexisting federal statute. To conclude otherwise would be even more illogical than interpreting a statute’s savings clause to save claims that the statute itself preempts.” (Parentheses in complaint.)
     As for the Louisiana district attorneys’ claims, BP wrote: “Although the Louisiana Parish District Attorneys insist that a savings clause for wildlife penalty cases in LOSPRA [Louisiana Oil Spill Prevention and Response Act] preserves their claims, they neglect to quote the actual language of the clause, which plainly refutes their argument: ‘Nothing herein shall be construed to preclude the Department of Wildlife and Fisheries from bringing a civil suit to recover penalties for the value of each fish, wild bird, wild quadruped, and other wildlife and aquatic life unlawfully killed, caught, taken, possessed, or injured pursuant to R.S. 56:40.1 et seq.’ La. Rev. Stat. § 30:2491 (B).”
     The motion to dismiss the 12 lawsuits was filed by Don Haycraft, with Liskow & Lewis of New Orleans, in the document, “BP’s Reply in Support of Motion to Dismiss Certain Complaints in Pleading Bundle C.”

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