The BP MDL and Its Aftermath: Whither OPA's Displacement Jurisprudence?

Abstract

Combining plain meaning textual exegesis, settled federal constitutional displacement doctrine and several Fifth Circuit opinions concurrent with or following the BP Macondo well explosion, The BP MDL and Its Aftermath: Whither OPA’s Displacement Jurisprudence? questions whether an MDL pre-trial ruling, titled B1 Bundle in the article, that the Oil Pollution Act of 1990 (OPA) does not displace general maritime law will survive scenarios other than those featuring the overwhelming burdens imposed on the five-state Gulf region and corresponding demand for an expeditious MDL outcome remedying to the extent possible injuries suffered by the region’s citizens and by local, state and federal governments. The article supports a contrary jurisprudential conclusion on constitutional and statutory grounds. They include constitutional and statutory considerations relating to disputes opposing federal statutes, such as the BP’s controversy’s OPA (as further grounded in the Clean Water Act and the Outer Continental Shelf Lands Act), and key provisions of OPA itself, against federal common or general maritime law. Conflict preemption and the primacy of federal statutes that speak to the same issue as these judicially declared principles manifest the constitutional dimension of the article’s thesis. Among OPA’s statutory provisions undermining the MDL’s non-displacement position, the most salient is OPA section 2751(e), a mandatory choice of law provision which excludes admiralty/general maritime law when a competing OPA provision “otherwise provide[s].” As interpreted in the author’s previous OPA scholarship and vigorously confirmed in concurrent or post-BP MDL opinions, this provision means precisely what it says: In re Settoon, one of these opinions, declares that “admiralty claims that are preserved are those not addressed in OPA.” OPA not only expressly encompasses the pre-OPA general law remedy upon whose survival the MDL’s non-displacement holding is premised, but goes well beyond creating an original federal statutory cause of action for injuries long-ignored by general maritime law. In advancing both considerations, the article also exposes the indefensibility of a reasoning indispensable to the MDL’s non-displacement case. B1 Bundle inaccurately proceeds as though OPA addresses only the latter category of injuries – those that are non-compensable under maritime law’s so-called Robins Dry Dock principle. It is true that OPA’s section 2702(b)(2)(E) damages category provides a cause of action for economic injuries unrelated to the claimant’s owned or leased property, which, for B1 Bundle, exhausts the entire category it labels as “OPA claims.” But OPA covers Robins Dry Dock-qualified claims as well, as OPA section 2702(b)(2)(B) expressly declares. These claims, therefore, are no less “OPA claims” than are those covered by OPA section 2702(b)(2)(E). This conclusion engages not only the constitutional “speaking directly” displacement doctrine referenced above, but, with no less force, In re Settoon’s declaration that “admiralty claims that are preserved [by the OPA section 2751(e) proviso] are those not addressed in OPA.” The article concludes with a sampling of non-jurisprudential or doctrinal considerations that perhaps afford a more plausible appreciation of the MDL’s non-displacement cast. It asks whether this instance of strategically brilliant case management in the current “managerial justice era” offsets the jurisprudential red line of misconceiving, if not consuming the jurisprudential grundnorms that are the seed corn from which earlier eras measured the legitimacy of legal reasoning.