ILNews

Civil penalty claim against BP to move forward

Back to TopCommentsE-mailPrintBookmark and Share

A U.S. District judge in Hammond has dismissed two counts against gas company BP Products North America, finding he has jurisdiction to hear the claims but deciding not to do so because of similar action ongoing elsewhere.

But U.S. Judge Philip P. Simon is keeping one count against BP alive, holding that he will decide a claim about the gas company starting construction on its Whiting oil refinery before it had obtained a proper state permit.

The 32-page order issued June 26 comes in the nearly one-year-old case of Natural Resources Defense Council v. BP Products North America, No. 2:08-cv-00204. The citizen environmental group alleges that BP violated the Clean Air Act by allowing too much pollution under the permitting it had received, as well as a claim of not getting the proper permit to modernize its Whiting plant. Part of the suit's request is to have BP fined up to $32,500 per day for construction days and for not having the proper permit.

BP filed a motion to dismiss in January, but Judge Simon decided to hear arguments in April before making a decision. After two months of analyzing the decision, the judge granted in part and denied in part the motion.

The court dismissed Counts I and III, which involve claims that BP had deceived state officials about how much pollution it would emit and, as a result, didn't obtain the proper permits that are needed when triggering federal pollution control requirements. Judge Simon found those claims are identical to the ones filed within the Indiana Department of Environmental Management's Office of Environmental Adjudication (OEA), the agency handling those types of environmental appeals that can then be taken to state court, if necessary.

In its arguments, BP said the federal court doesn't have jurisdiction over these claims because of those similar ones raised within the OEA. In his ruling, the judge analyzed two specific U.S. Supreme Court precedents on whether to use his jurisdiction or not - Burford v. Sun Oil Co., 319 U.S. 315 (1943), and Colorado River Water Conservancy Dist. v. U.S., 424 U.S. 800 (1976). Both provide frameworks for how courts should make abstention decisions, but they differ on how to do so; Burford involves special forums for regulation and adjudication, while Colorado River involves an inquiry about whether other litigation or actions can be considered "parallel."

"While I am satisfied that the Court has jurisdiction, I nevertheless think this case really presents a call to be made by the expert environmental agencies that Indiana has selected for the job," Judge Simon wrote, finding that both abstention precedents apply but that Colorado River is more applicable here.

"In sum, the NRDC's suit and the OEA action are parallel proceedings, and my evaluation of the relevant factors leads me to the strong belief that extraordinary circumstances exist here," he wrote. "Despite the starting balance being 'heavily weighed in favor of the exercise of jurisdiction,' I believe abstention under the Colorado River doctrine is appropriate."

But the judge kept the second count in his court's control, deciding that the statute specifically allows for suits seeking "appropriate civil penalties" and that doesn't conflict with the pending OEA action.

A pre-trial conference is set for Aug. 20 before Magistrate Judge Paul Cherry, according to the federal docket online.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. IF the Right to Vote is indeed a Right, then it is a RIGHT. That is the same for ALL eligible and properly registered voters. And this is, being able to cast one's vote - until the minute before the polls close in one's assigned precinct. NOT days before by absentee ballot, and NOT 9 miles from one's house (where it might be a burden to get to in time). I personally wait until the last minute to get in line. Because you never know what happens. THAT is my right, and that is Mr. Valenti's. If it is truly so horrible to let him on school grounds (exactly how many children are harmed by those required to register, on school grounds, on election day - seriously!), then move the polling place to a different location. For ALL voters in that precinct. Problem solved.

  2. "associates are becoming more mercenary. The path to partnership has become longer and more difficult so they are chasing short-term gains like high compensation." GOOD FOR THEM! HELL THERE OUGHT TO BE A UNION!

  3. Let's be honest. A glut of lawyers out there, because law schools have overproduced them. Law schools dont care, and big law loves it. So the firms can afford to underpay them. Typical capitalist situation. Wages have grown slowly for entry level lawyers the past 25 years it seems. Just like the rest of our economy. Might as well become a welder. Oh and the big money is mostly reserved for those who can log huge hours and will cut corners to get things handled. More capitalist joy. So the answer coming from the experts is to "capitalize" more competition from nonlawyers, and robots. ie "expert systems." One even hears talk of "offshoring" some legal work. thus undercutting the workers even more. And they wonder why people have been pulling for Bernie and Trump. Hello fools, it's not just the "working class" it's the overly educated suffering too.

  4. And with a whimpering hissy fit the charade came to an end ... http://baltimore.cbslocal.com/2016/07/27/all-charges-dropped-against-all-remaining-officers-in-freddie-gray-case/ WHISTLEBLOWERS are needed more than ever in a time such as this ... when politics trump justice and emotions trump reason. Blue Lives Matter.

  5. "pedigree"? I never knew that in order to become a successful or, for that matter, a talented attorney, one needs to have come from good stock. What should raise eyebrows even more than the starting associates' pay at this firm (and ones like it) is the belief systems they subscribe to re who is and isn't "fit" to practice law with them. Incredible the arrogance that exists throughout the practice of law in this country, especially at firms like this one.

ADVERTISEMENT