Environmental Law
| Publication year | 2022 |
Environmental Law
Travis M. Trimble
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In 2021,1 the United States District Court for the Southern District of Alabama, in an issue of first impression, concluded that the United States is not a "person" under the contribution provision of the Oil Pollution Act (OPA),2 and therefore the provision did not waive the sovereign immunity of the United States.3 For this and other reasons a plaintiff could not recover in contribution from the United States for the plaintiff's costs of cleaning up an oil spill, even where the plaintiff alleged the spill was the result of the sole negligence of the United States.4 The United States District Court for the Northern District of Georgia issued a dispositive ruling in the long-running dispute between Alabama and Georgia over the United States Corps of Engineers' (Corps) allocation of water from Lake Lanier to municipal water supply in the metro Atlanta area.5 The court granted summary judgment to the Corps and affirmed that the Corps' decision to allocate water for that purpose, including by direct withdrawals of water from the lake, and the Corps' accompanying Environmental Impact Statement regarding that decision, was reasonable.6 Finally, the United States District Court for the Northern District of Georgia ruled that a plaintiff had successfully stated claims against multiple defendants related to the supply, use, and disposal of toxic chemicals used in the manufacture of carpet that resulted in the contamination of surface water in the
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Coosa River Basin in northwestern Georgia and ultimately the contamination of the drinking water supply of Rome, Georgia.7
In Savage Services Corporation v. United States,8 oil barges being pushed by the plaintiff's inland towing vessel on the Tennessee-Tombigbee Waterway were damaged in a lock operated by the United States Corps of Engineers.9 The damage to the barges, according to the plaintiff, was due to the sole negligence of Corps' employees, resulting in a spill of oil into the lock and causing the plaintiff to incur over four million dollars in damages, including over three million dollars in cleanup costs to remove oil from the lock. The plaintiff was strictly liable for the cleanup costs pursuant to the Oil Pollution Act.10 The plaintiff sued the United States under the Suits in Admiralty Act (SAA)11 and the Federal Tort Claims Act (FTCA)12 for contribution or indemnity.13
This set of facts, which the plaintiff alleged created a claim for contribution against the United States for harm under federal admiralty law, also created a crack through which the plaintiff's claims fell, according to the United States District Court for the Southern District of Alabama.14 It granted the United States' motion to dismiss the plaintiff's claim for contribution as to the oil spill cleanup costs on the ground that the court lacked jurisdiction over the claim due to the United States' sovereign immunity.15
At the outset, the court noted that to recover from the United States, the plaintiff had to identify a waiver of sovereign immunity that would allow its claims.16 Both the SAA17 and the FTCA18 contain such waivers. The United States conceded that with respect to the plaintiff's damages not related to the oil spill cleanup, the plaintiff's claims could proceed
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under the SAA.19 However, with respect to the plaintiff's claim for damages resulting from the oil cleanup, the United States argued that that claim was governed by the OPA,20 which does not allow a responsible party like the plaintiff to bring a claim for contribution against the United States.21
The plaintiff contended that it could pursue a contribution claim for negligence against the United States under OPA's contribution provision, which provides that "a person may bring a civil action for contribution against any other person who is liable or potentially liable under this Act or another law."22 The plaintiff argued that because the SAA allowed it to sue the United States to the same extent it could sue a private party, the SAA constituted "another law" under the OPA's contribution provision.23 Thus, even if the plaintiff's claim was governed by the OPA, the OPA provided a waiver of sovereign immunity for the basis of the plaintiff's lawsuit, the SAA.24
However, the court concluded as a matter of first impression that the United States is not a "person" within the meaning of the OPA's contribution provision.25 The OPA defines person as "an individual, corporation, partnership, association, State, municipality, commission, or political subdivision of a State, or any interstate body."26 The plaintiff argued that a person under the OPA includes the United States because the term "State" should be interpreted to mean the United States and because "State" and "United States" are defined interchangeably elsewhere in the OPA.27
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The court disagreed.28 First, the court agreed with the United States' argument that had Congress intended the term "State" to include the United States in the OPA, the statute would not use the terms separately "in numerous places," as it does, to refer to the United States as a separate entity from a State.29 Second, the court explained that with respect to oil spills, the OPA had repealed a contribution provision of the Federal Water Pollution Control Act,30 which also had allowed vessel owners or operators to recover oil spill remediation costs when those costs were incurred as a result of the sole negligence of the United States (among other things).31 Thus, Congress intended to remove the possibility that responsible parties under the OPA could recover remediation costs in contribution from the United States.32 Third, courts have recognized a "well-settled presumption that the term 'person' in a statute does not include the sovereign in common usage, absent an affirmative showing of congressional intent to the contrary."33
The court also rejected the plaintiff's argument that if the OPA's contribution provision were not construed to include the United States as a person from whom contribution could be had, it would conflict with the SAA, which explicitly did include the United States in its contribution provision.34 While the court acknowledged that the two statutes were in conflict on this point, the court concluded that the conflict could not be resolved in the plaintiff's favor for two reasons.35 First, the OPA is more recent, having been enacted in 1990 where the SAA was enacted in 1920.36 The court explained that "Congress's intent to effect an implied repeal . . . when a later statute conflicts with or is repugnant to an earlier statute; or when a newer statute covers the whole subject of the earlier one, and clearly is intended as a substitute."37 The court concluded that with respect to oil spills, both of those circumstances were present in the conflict between the OPA and the SAA.38 Second, the OPA is a "specific, detailed statute" with respect
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to oil spills, where the SAA is more general, implying the OPA's "mandatory and exclusive nature" in dealing with oil spills.39 For these reasons, the court resolved the conflict between the two statutes in favor of its reading that the OPA did not include the United States as a person for contribution purposes.40
Further, the court rejected the plaintiff's argument that the OPA's "savings" provision allowed the plaintiff to pursue its contribution claim under the SAA.41 The OPA provides that "[e]xcept as otherwise provided in this Act, this Act does not affect-(1) admiralty and maritime law; or (2) the jurisdiction of the district courts of the United States with respect to civil actions under admiralty and maritime jurisdiction . . . ."42 The court concluded that the language "except as otherwise provided by this Act" applied to the plaintiff's claim, returning it to the court's earlier interpretation that the OPA did not allow for a contribution claim against the United States.43
Finally, the court concluded that the plaintiff could not bring its claim under the FTCA because the FTCA does not apply to claims falling under admiralty law.44
Thus, under the court's application of law to this narrow set of circumstances, that is, an oil spill into navigable waters, a plaintiff who is strictly liable for cleaning up the oil under the OPA cannot recover its costs from the United States, even assuming the United States is solely at fault for the spill.
In the case of In re ACF Basin Water Litigation,45 the Georgia court resolved a long-running dispute between the states of Alabama and Georgia over Georgia's use of water from Lake Lanier to satisfy the water supply needs of Atlanta.46 The court concluded that the Corps' adoption of an updated Master Manual in 2017, which allowed for Georgia water supply providers to withdraw water directly from Lake Lanier in order to meet the water supply needs of Atlanta and surrounding areas through 2030, was not arbitrary or capricious.47 It also concluded that the Corps' Environmental Impact Statement that
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accompanied the 2017 Master Manual was not arbitrary or capricious.48 As a result, the court granted summary judgment to the Army Corps of Engineers and the Georgia water supply defendants and denied summary judgment to Alabama and other parties who challenged the 2017 Manual.49
The lawsuits resolved in this case began in 2017.50 The state of Alabama, and the National Wildlife Federation (NWF) and other environmental plaintiffs (Environmental Plaintiffs), in separate lawsuits challenged the Corps' 2017 updated ACF River Basin Water Control Manual, which allocated additional water from Lake Lanier to water supply for Atlanta and the surrounding region and the Environmental Impact Statement (EIS) that accompanied it.51 Relevant to the present case,52 Alabama's suit claimed the Manual and EIS violated the Administrative Procedure Act (APA),53 the Water Supply...
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