Wednesday, November 12, 2014
On November 5, a panel of the Fifth Circuit (King, Benavides, Dennis) issued a decision in In re Deepwater Horizon, arising out of the Deepwater Horizon disaster in 2010. This decision is a short per curiam follow-up to the panel’s June 4, 2014, decision, see In re Deepwater Horizon, 753 F.3d 570, 573 (5th Cir. 2014), which held that BP and Anadarko, co-owners of the Macondo Well, are liable for civil penalties under Clean Water Act § 311, 33 U.S.C. § 1321(b). Section 311 imposes civil penalties on “[a]ny person who is the owner, operator, or person in charge of any vessel, onshore facility, or offshore facility from which oil or a hazardous substance is discharged.” The panel’s June 4 decision held that a “discharge” under § 311 occurs at the “point at which controlled confinement is lost.” 753 F.3d at 573. The panel’s follow-up opinion addresses arguments BP and Anadarko have raised in their rehearing petitions—although the opinion does not itself take action on the petitions. The panel reaffirmed its interpretation of what constitutes a “discharge” under § 311, despite arguments from BP and Anadarko that the court’s interpretation was contrary to precedent and unworkable. In addition, the panel clarified (a) that it did not mean to suggest in its prior opinion that the well had been successfully sealed, an issue that was in any event “immaterial” to the resolution of the case; (b) that Anadarko received adequate notice of the basis for the district court’s and Fifth Circuit panel’s interpretation of § 311; (c) that control of the oil was lost in the well; and (d) that more than one instrumentality of discharge can be the basis for liability under § 311.