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

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Excellent initiative on the part of the AG. Thankfully someone takes action against predators taking advantage of people who have already been through the wringer. Well done!

  2. Conour will never turn these funds over to his defrauded clients. He tearfully told the court, and his daughters dutifully pledged in interviews, that his first priority is to repay every dime of the money he stole from his clients. Judge Young bought it, much to the chagrin of Conour’s victims. Why would Conour need the $2,262 anyway? Taxpayers are now supporting him, paying for his housing, utilities, food, healthcare, and clothing. If Conour puts the money anywhere but in the restitution fund, he’s proved, once again, what a con artist he continues to be and that he has never had any intention of repaying his clients. Judge Young will be proven wrong... again; Conour has no remorse and the Judge is one of the many conned.

  3. Pass Legislation to require guilty defendants to pay for the costs of lab work, etc as part of court costs...

  4. The fee increase would be livable except for the 11% increase in spending at the Disciplinary Commission. The Commission should be focused on true public harm rather than going on witch hunts against lawyers who dare to criticize judges.

  5. Marijuana is safer than alcohol. AT the time the 1937 Marijuana Tax Act was enacted all major pharmaceutical companies in the US sold marijuana products. 11 Presidents of the US have smoked marijuana. Smoking it does not increase the likelihood that you will get lung cancer. There are numerous reports of canabis oil killing many kinds of incurable cancer. (See Rick Simpson's Oil on the internet or facebook).

ADVERTISEMENT