On April 22, 2010, the Deepwater Horizon rig sank following numerous fires and explosions resulting from a loss of well control. Oil subsequently discharged into the Gulf of Mexico, and flow continued for three months until the well was capped on July 15, 2010 and subsequently sealed with completion of a relief well on September 19, 2010. Clean-up activities and efforts to minimize the spill’s impact continued for months. Response activities included skimming oil from the surface, conducting in situ burning of oil, placing containment and sorbent boom, and on-shore and beach clean-up. Clean-up responders dispersed chemical agents designed to emulsify, disperse, or solubilize the oil in the water.
Of the numerous parties named as defendants in the master complaint were several companies contracted as clean-up responders. Plaintiffs alleged that the clean-up responders “failed to use reasonably safe dispersant chemicals or other chemicals in their attempts to respond to the Oil Spill, and thereby exacerbated the pollution of the Gulf of Mexico and injury to Plaintiffs,” “ignored worker safety concerns,” and failed to supply workers with appropriate equipment such as respirators.” The clean-up responders moved to dismiss arguing that they were entitled to derivative immunity under the Clean Water Act (“CWA”), were entitled to discretionary immunity under the Federal Tort Claims Act (“FTCA”), and that the plaintiffs’ claims were preempted as a matter of law. The Eastern District of Louisiana initially denied these motions to dismiss and issued a Lone Pine order to conduct discovery on these claims. The clean-up responders subsequently filed a motion for summary judgment at the conclusion of discovery on the issues raised in their initial motion to dismiss.
The court held that the clean-up responders were entitled to derivative immunity under the CWA and to discretionary immunity under the FTCA because the clean-up responders had adhered to and acted within the scope of the federal government’s directives in their clean-up efforts. Further, the court held that it was not possible for the clean-up responders to simultaneously comply with both the federal directives of CWA and FTCA and with state or maritime law; the clean-up responders had therefore demonstrated a prima facie basis for dismissal of their claims based on conflict pre-emption. Thus, claims against the clean-up responder defendants were dismissed.