Barbier severs Sierra Club, Gulf Restoration suits from MDL

Steve Korris Dec. 16, 2010, 11:44pm


Nature groups suing Interior Secretary Ken Salazar over the Gulf of Mexico rig explosion and oil spill don't belong in multi district litigation about injuries and economic losses, U.S. District Judge Carl Barbier decided on Dec. 3.

He severed two suits from 287 others in his court and transferred them to District Judge Kurt Engelhardt, his colleague in the Eastern District of Louisiana.

"After reviewing the memoranda before the court, the court finds that these matters are not sufficiently related to the MDL and therefore should be deconsolidated," he wrote.

Gulf Restoration Network and Sierra Club filed both suits.

Barbier didn't explain his decision, apparently adopting Salazar's view that judicial review of agency actions wouldn't mix well with tort claims.

One suit alleges the Department of Interior improperly exempted offshore operations in the Gulf from requirements pertaining to blowouts and spill responses.

The other alleges the department violated the Oil Pollution Act by approving a deficient regional response plan for BP, operator of the rig that exploded on April 20.

The Eastern District assigned the first case to Engelhardt, the second to Barbier.

On Aug. 10, the U.S. Judicial Panel on Multi District Litigation consolidated 77 federal cases and appointed Barbier to preside over them.

The panel didn't include the suits against Salazar in the consolidation, but Engelhardt elected to transfer his case to Barbier on Aug. 12.

Barbier included both suits in the consolidation on Aug. 13.

Salazar wanted out, but he let private groups say it first.

On Aug. 23, American Petroleum Institute, Independent Petroleum Association of America, U.S. Oil and Gas Association, and International Association of Drilling Contractors intervened and moved for deconsolidation.

John Joyce of New Orleans wrote that the multi district litigation involves only suits concerning the cause or causes of the explosion and fire.

"The consolidated cases principally involve claims for monetary damages against private corporations," he wrote.

He wrote that Gulf Restoration implicated the actions of federal regulators, not the alleged common law negligence of private actors.

"By forcing plaintiffs, the government and the associations to await resolution of irrelevant discovery and factual disputes relating to completely different parties, theories of recovery and remedies, consolidation with MDL No. 2179 unreasonably delays Gulf Restoration's resolution," he wrote.

Joyce requested transfer to Engelhardt.

He noted that the government didn't oppose deconsolidation but it took no position on transfer to Engelhardt.

Plaintiffs reacted mildly at first, crediting Salazar for adopting new regulations.

"At this point the federal defendants have largely provided the substantive relief requested in plaintiff's prayer," Alisa Coe of Tallahassee, Fla., wrote on Sept. 7.

"The plaintiffs therefore believe that the associations' motion may be denied as moot, and this case be allowed to proceed to a determination of an award for plaintiffs' attorney fees and costs," she wrote.

If other issues remained, she wrote, they should remain with Barbier.

"Plaintiffs have alleged irreparable injury due to the dangers inherent in deep water drilling, the increased risks of blowouts in deep water drilling, the frequency of blowouts, the difficulty of stopping a blowout in deep water or of drilling a relief well, and the unavailability and inadequacy of spill response equipment," Coe wrote.

"These are all issues central to the negligence and economic damages claims involved in the MDL," she wrote.

On the same date, assistant attorney general Ignacia Moreno supported deconsolidation on behalf of Salazar.

She wrote that plaintiffs sued under the Administrative Procedures Act, which sets a highly deferential standard for judicial review.

"Many of the requirements of the federal rules of civil procedure do not apply in APA cases, which do not feature discovery or result in a trial or other fact finding by a judge or jury," Moreno wrote.

She wrote that it would be improper to include the cases in discovery procedures and unfair to assign to Salazar any portion of the costs for such procedures.

She wrote that a court must uphold an agency decision absent a finding that it was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.

"The agency's action is afforded a presumption of regularity, that is, a presumption that the agency has acted in accordance with the law," Moreno wrote.

She wrote that a court's review is confined to the record at the time of the decision.

On Sept. 17, the associations argued that the intention of plaintiffs to seek legal fees from the government amplified the propriety of deconsolidation.

"Whether the resolution of plaintiffs' administrative law claims satisfies the legal criteria for recovering attorney fees and costs plainly bears no relation to the liability of private actors with respect to the Deepwater Horizon oil spill," Joyce wrote.

Gulf Restoration Network and Sierra Club changed their tone on Sept. 21, no longer claiming victory but rather girding for battle.

"Contrary to the federal defendants' characterizations, judicial review of administrative action is not a rubber stamp," Coe wrote.

She wrote that courts aren't obligated to affirm decisions they deem inconsistent with statutory mandates or that frustrate congressional policy.

Interior "publicly acknowledged that it failed to fulfill its environmental stewardship role," Coe wrote.

Circumstances "make these cases ripe for supplementation of the record and, perhaps, even trial," she wrote.

She wrote that discovery should be completed by October 2011.

On Sept. 30, Moreno tried again to keep the record under control.

"Plaintiffs' assumption that judicial review of documents outside the record will occur in the two cases is premature because neither record has been lodged," she wrote.

She called their reasons for supplementation legally erroneous.

"In APA cases, judicial review of documents outside the record is permitted only under certain narrowly defined circumstances that are not present here," she wrote.

She and the associations persuaded Barbier, but a point of procedure remained.

Barbier could transfer the first case back to Engelhardt, but the second case had belonged to him from the start.

He severed both from the mass, declared them related, and sent them to Engelhardt.

Barbier presides over spill suits from many federal courts by appointment of the U.S. Judicial Panel on Multi District Litigation.

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