Louisiana Record

Thursday, April 2, 2020

Feds signal intent to sue over BP oil spill

By Steve Korris | Sep 15, 2010



NEW ORLEANS – All the little plaintiffs in litigation over the Deepwater Horizon oil rig explosion need to clear the way for the biggest plaintiff – Uncle Sam.

The United States hasn't sued anyone yet but might start suing soon, assistant attorney general Ignacia Moreno advised Multi District Judge Carl Barbier on Sept. 13.

"Congress has established several causes of action, enforceable by the United States, that may apply here," she wrote in a statement of interest.

Enforcement actions under provisions of the Oil Pollution Act and the Clean Water Act might be appropriate, she wrote.

"At this juncture, the United States expects that it may file a civil complaint related to the Deepwater Horizon under these provisions and possibly others," she wrote.

She signaled the likelihood of action by asking Barbier in advance to run government cases on a separate track from tort claims already in his court.

A separate track would "ensure that the government's special position as a plaintiff will not be prejudiced by the litigation choices of private parties," she wrote.

"Moreover, for reasons of sovereignty, as well as the unique nature of certain claims that may be pursued solely by the United States, it is not appropriate for the United States to be represented by private party's counsel as liaison or lead counsel," she wrote.

"A government's interest, especially where its claims are part of law enforcement, could depart markedly from the interests of private party tort plaintiffs," she wrote.

"If the United States files claims, including claims under the Oil Pollution Act or the Clean Water Act, there may be areas where the governmental claims and the private claims overlap," she wrote.

"It is therefore critical that the discovery schedule, the order of discovery, and the nature of the factual development be managed with recognition of all the significant interests at play," she wrote.

She wrote that Congress passed the Oil Pollution Act in 1990, after the Exxon Valdez spill.

It imposes liability on responsible parties for removal costs and damages, she wrote.

She wrote that the Clean Water Act authorizes the United States to seek civil penalties up to $1,100, and in some circumstances up to $4,300, per barrel of spilled oil.

Thirteen other government lawyers put their names on the statement.

Barbier presides over oil spill cases from federal courts in 10 states by appointment of the U.S. Judicial Panel on Multi District Litigation.

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