Oil Spill Toxin Claims Don’t Merit Injunction

     (CN) – Noting that the Deepwater Horizon spill has been contained, with no evidence of continuing leakage, the 5th Circuit nixed most of a group’s claims against BP.
     The Center for Biological Diversity filed two complaints against BP in the months after the worst oil spill in U.S. history, which began on April 20, 2010, killed 11 people and ultimately spewed 172 million gallons of oil into the Gulf of Mexico.
     The group said BP had concealed how the explosion of the Deepwater Horizon drilling and the Macondo Prospect well also released numerous toxins into the gulf.
     While “BP did provide some reports of releases of benzene and ethylbenzene to water and air associated with prescribed surface oil burns of slicks created by the well and platform discharges, even those reports failed to provide the level of detail necessary to comply” with federal law, according to the complaint.
     The center sought an order requiring BP to pay penalties of up to $37,500 per day for each hazardous substance it failed to report, or adequately report. It also sought an injunction forcing BP to pay the cost of any environmental restoration necessary along the Gulf Coast.
     A federal judge concluded, however, that eventual cap of the spill, some 87 days after the explosion, mooted the injunction demands.
     The trial court also found that data regarding the spill and its cleanup are easily accessible.
     A three-judge panel of the 5th Circuit mostly affirmed Wednesday.
     “The district court correctly noticed that the well has been killed and there is no competent record evidence of continued discharges from the site,” Judge Carolyn King said wrote for the panel.
     The center cannot get civil penalties and copies of future reports submitted to regulatory authorities, according to the ruling.
     Though the panel declined to “second-guess” the government’s remediation decisions, it did reinstate the claim under the Emergency Planning and Community Right-to-Know Act (EPCRA).
     BP failed to show that that all the requested information is publicly available online.
     “Some of the web pages cited in the defendants’ briefs lead to links to documents comprising thousands of pages of information,” King wrote. “We do not think that the intent of EPCRA is met by requiring the public to search for a needle in the cyberspace haystack.”
     In addition, BP’s argument “ignores the fact that EPCRA places an affirmative statutory duty on the owner or operator of the facility to report the information … [and] be made available to the public at a designated location,” according to the ruling.
     “The obvious advantage of this requirement is to have vital health information available in one easily accessible place,” King added.
     At least one member of the center “specifically averred that he had not seen any reports from BP documenting the substances that were released in the spill despite his search for such reports,” the decision states.
     “This is the kind of concrete informational injury that the statute was designed to redress,” King wrote.

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