Jonathan K. Waldron and Lauren B. Wilgus
On February 16, 2016, the U.S. District Court for the Eastern District of Louisiana issued a landmark decision with respect to responder immunity. In In re DWH Oil Spill, MDL No. 2179 (ED La, February 16, 2016), the court granted the clean-up responder defendants’ motions for summary judgment with respect to claims asserted against them by plaintiffs who engaged in a variety of clean-up activities and were exposed to oil, dispersants, and other chemicals while doing so as a result of actions or omissions relating to the defendants’ use of dispersants and other response efforts during the Deepwater Horizon incident.
Derivative Immunity and Pre-emption
In short, the court adopted arguments raised by Blank Rome and other defense counsel on behalf of the responder defendants that the plaintiffs’ com- plaints should be denied based on a concept known as derivative immunity and pre-emption. The derivative immunity concept was established over 70 years ago by the Supreme Court for parties acting under the direction and control of the federal government in the exercise of legitimate federal authority. Indeed, this concept was extended to private parties in the context of disaster relief actions taken in response to the 9/11 terrorist attacks on the World Trade Center due to the unique federal interest in coordinating federal disaster assistance and streamlining the management of large-scale disaster recovery projects.
Specifically, the court ruled that the responder defendants, which although are private parties with no contractual relationship to the federal government, can and will share in the federal government’s derivative immunity under the Clean Water Act and discretionary function immunity under the Federal Tort Claims Act. Moreover, the court held that the plaintiffs’ state claims were pre-empted under the Clean Water Act and National Contingency Plan in connection with their response actions where such actions were undertaken consistent with the Federal On-Scene Coordinator’s direction during the response effort. All the plaintiffs’ claims except 11 were dismissed on this basis and that these plaintiffs failed to raise genuine issues of material fact sufficient to survive summary judgement. The court has reserved judgement on these 11 plaintiffs pending further action and review in the case.
While the February 16, 2016, decision is a great develop- ment for the responder immunity defense, responders will continue to be sued until gaps in the current responder immunity regime under the Oil Pollution Act of 1990 (“OPA 90”) are closed. Unfortunately, this development alone will likely have little effect on protracted and costly litigation in future cases until the OPA 90 responder immunity provision is amended in some manner to deter frivolous law suits.
What Are the Gaps in OPA 90?
As way of background, following the Exxon Valdez incident in 1989, Congress included a responder immunity provision under OPA 90 to protect from liability those individuals or corporations who provide care, assistance, or advice in mitigating the effects of an oil spill. The purpose of the responder immunity provision, as originally enacted by Congress, was to grant immunity from liability lawsuits to responders who act under the direction of the U.S. government. The provision was intended to afford the response industry protection from liability for the spiller’s actions and, in doing so, encourage the rapid response to mitigate the impact of a spill.
Unfortunately, litigation following the Deepwater Horizon casualty revealed an unintended gap in the current responder immunity provision. In particular, plaintiffs in the Deepwater Horizon litigation sidestepped the immunity pro- vision in OPA 90 by suing responders for personal injuries allegedly caused by exposure to the spilled oil and/or the dis- persants that were approved for use by the U.S. government and alleged gross negligence and willful misconduct related to the response actions. Since the responder immunity provision does not apply if a responder acts with gross negligence or willful misconduct, or causes personal injury or wrongful death, the plaintiffs’ allegations exposed the responders to liability lawsuits and protracted and costly litigation for dam- ages they did not cause. Indeed, this case is now almost six years old, as this unfortunate incident occurred on April 20, 2010, and it continues.
Legislative Efforts to Close the Gap
As a result of the lawsuits filed against first responders fol- lowing the Deepwater Horizon casualty, the response industry formed a coalition to address the identified gaps in the current responder immunity provision under OPA 90. The coalition has identified a number of enhancements that could be enacted in order to discourage, and possibly prevent, future lawsuits against responders who carry out response actions as envisioned under OPA 90. Specifically, some of the key changes that could assist in this regard include:
- Personal Injury and Wrongful Death: Provide immunity from claims for personal injury and wrongful death, at least with regard to claims for exposure to oil, dispersants, or other Many states already provide for this immunity and the responsible party already bears responsibility for this liability. In the alternative, legislation could statutorily adopt the court’s ruling as discussed above.
- Scope of Responder Immunity: Ensure that the scope of responder immunity applies to all types of responders, including Incident Command personnel not employed by the responsible party, as well as Emergency Responders, including salvors and emergency well containment responders.
- Attorney Fees and Court Costs: Require plaintiffs to pay the costs of litigation if they file a frivolous case and lose.
- Presumption of No Gross Negligence: Provide a statutory presumption that a responder was not grossly negligent in responding to an incident, thus placing the burden of proof on the plaintiffs to prove otherwise.
Unfortunately, the coalition’s efforts have not been successful due to the objection of one industry organization involved with only one limited sector of the marine industry, despite broad support from many entities that potentially would be a responsible party for a spill occurring from owning or operating a vessel.
This recent development may provide an impetus to revisit a possible enactment of a statutory amendment, or at a minimum to have the National Academy of Sciences (“NAS”) or the U.S. Government Accountability Office (“U.S. GAO”) conduct a study of the issue, including the impact that this district court decision may have on potential future litigation against responders following a spill incident.
Conclusion
The Eastern District of Louisiana’s February 16, 2016, decision is a major break-through with respect to responder immunity. However, it took over almost six years for the judge to rule on a motion for summary judgement, and mil- lions of dollars have been spent by the responder defendants so far on this case. It is now time to assess the impact that this decision will have on future litigation and on whether cleanup or emergency responders will continue to take bold immediate actions at the time of spill incidents in the future. If Congress will not take action to enact amendments to OPA 90 to foster such action, then it certainly is appropriate for Congress to direct the NSA or U.S. GAO to conduct a study of the current state of affairs, including the recent court decision and costs/fees associated with defending lawsuits filed by plaintiffs against responders to assess whether more needs to be done to ensure for an immediate and effective response to spills in the future.