Two years ago the Deepwater Horizon rig exploded creating an environmental disaster in the Gulf of Mexico resulting in hundreds of lawsuits. Many of the suits were consolidated in multi-district litigation in the Eastern District of Louisiana. Among the plaintiffs were citizen organizations, including the Center for Biological Diversity (CBD). CBD’s original complaint contained both claims for civil penalties and claims for injunctive relief, but in a novel case management effort the district court severed the injunctive claims and “bundled” them with those of other plaintiffs. A “Master Complaint” was then filed containing only the injunctive claims. The District Court subsequently granted motions by defendants BP and Transocean to dismiss the Master Complaint under Rule 12(b)(6), finding, among other things, that plaintiffs lacked standing and that the claims were moot. CBD appealed, and its brief was filed in the Fifth Circuit.
With input from a number of colleagues from around the country we prepared here at Pace a “law professors” brief amici curiae in support of CBD. Our motion for leave to file the brief was granted last week, and the brief accepted by the Court on Friday. It is extremely gratifying that over fifty law professors signed on to the brief. I am very proud to be part of such a dedicated group of teachers and scholars.
In dismissing the case the district court ruled that the plaintiffs did not have standing to bring their citizen suit, finding that the claims were not redressable, in large part because the violations were no longer ongoing at the time that the motion to dismiss was decided. However, it is the date the case was commenced to which the court must refer when measuring whether the elements required for standing were present. At that time, the violations were ongoing and there was reason to believe that the violations would continue.
The district court then erred in its mootness analysis, ruling that the Master Complaint was moot as a result of post-commencement compliance, stating that plaintiffs were “not seeking the type of civil monetary penalties that saved the Laidlaw case from mootness.” This of course ignored the fact that CBD had sought civil penalties in its original brief, and the amici brief argued that the district court’s efforts to manage its docket should not prejudice plaintiffs’ claims for civil penalties. It also argued that well-settled mootness doctrine, as discussed in Justice Stevens’ concurrence in Friends of the Earth v. Laidlaw Environmental Services (TOC), 528 U.S. 167 (2000), and recognized by multiple federal courts of appeals, dictates that a defendant’s post-commencement compliance will not moot claims for civil penalties even where it moots claims for equitable relief. Therefore, even if the district court correctly held that plaintiffs’ injunctive claims are moot, under Laidlaw the claims for civil penalties would survive and the Master Complaint should not have been dismissed.
A copy of the brief is posted at http://www.pace.edu/school-of-law/sites/pace.edu.school-of-law/files/pdfs/Powers_Amicus_Brief_CBD_v._BP-ECF.pdf . Special mentions should go to Pace’s Research Fellow Laura Jensen who did a simply terrific job, and to Adam Babich, Director of the Tulane Environmental Law Clinic, who served as counsel of record in the Fifth Circuit and was of invaluable assistance.