Case: 12-30136    Document: 00512106986     Page: 1   Date Filed: 01/09/2013




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                  Fifth Circuit

                                                                   FILED
                                                                  January 9, 2013

                                  No. 12-30136                    Lyle W. Cayce
                                                                       Clerk

CENTER FOR BIOLOGICAL DIVERSITY, INCORPORATED,

                                            Plaintiff-Appellant
v.

BP AMERICA PRODUCTION CO; BP EXPLORATION & PRODUCTION,
INCORPORATED; BP, P.L.C.; TRANSOCEAN OFFSHORE DEEPWATER
DRILLING, INCORPORATED; TRANSOCEAN HOLDINGS, L.L.C.;
TRANSOCEAN DEEPWATER, INCORPORATED,

                                            Defendants-Appellees



                 Appeal from the United States District Court
                    for the Eastern District of Louisiana


Before STEWART, Chief Judge, and KING and OWEN, Circuit Judges.
KING, Circuit Judge:
      This appeal arises from the multi-district litigation spawned from the
disaster on the Deepwater Horizon drilling rig and the resulting massive oil spill
that occurred at the Macondo well site in the Gulf of Mexico. Plaintiff Center for
Biological Diversity appeals from the district court’s dismissal of its action
brought under the citizen-suit provisions of the Clean Water Act (“CWA”), 33
U.S.C.   §   1365(a)(1),   the   Comprehensive      Environmental       Response,
Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9659(a), and the
Emergency Planning and Community Right-to-Know Act (“EPCRA”), 42 U.S.C.
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                                   No. 12-30136

§ 11046(a). The district court dismissed the suit for lack of standing, mootness,
and failure to state a claim for relief. We agree that most of the plaintiff’s claims
for relief have become moot because the Macondo well has been capped and
sealed. We conclude that, at least on the current record, the EPCRA claim
remains viable. We therefore AFFIRM IN PART and REVERSE IN PART the
district court’s judgment.
            I. FACTUAL AND PROCEDURAL BACKGROUND
      Plaintiff Center for Biological Diversity (“the Center”) is a non-profit
environmental organization with over 40,000 members, including over 3,500
members living in the Gulf of Mexico region. Defendants BP, P.L.C. and its
corporate subsidiaries BP America Production Co. and BP Exploration &
Production, Inc. (collectively “BP”) conduct exploration and drilling operations
in the Gulf of Mexico. As part of those operations, BP leased the mobile offshore
drilling unit known as Deepwater Horizon from Defendants Transocean, Ltd. and
its subsidiary companies in order to drill the Macondo well, which is located on
the sea floor at Mississippi Canyon Block 252.
      On April 20, 2010, an explosion on Deepwater Horizon tragically killed
eleven people and accompanied an oil spill that caused an environmental
disaster of immense proportion. Millions of gallons of oil spewed from the well
site over the course of several months as the defendants and government
authorities sought to stop it.
      In the face of an extensive oil spill, federal law directs the President to
ensure the effective and immediate removal of the oil in accordance with a
National Contingency Plan and to direct all federal, state and private actions in
that regard. See 33 U.S.C. § 1321(c)(1)(A), (2)(A). Consistent with the National
Contingency Plan, the President must also create a National Response System,
which establishes multiple levels of federal contingency plans for addressing a
discharge of oil and hazardous substances. 33 U.S.C. § 1321(j); see also 40 C.F.R.

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§ 300.210. Pursuant to these plans, a Federal On-Scene Coordinator (“FOSC”)
will direct and coordinate all efforts at the scene of the discharge. 40 C.F.R.
§ 300.120(a). When a discharge occurs in a coastal zone of the United States, the
Coast Guard provides the FOSC, and if the spill is especially complex the Coast
Guard can name a National Incident Commander to assume the role of the
FOSC. See 40 C.F.R. §§ 300.120(a)(1), 300.5, 300.323.
      In the case of the Deepwater Horizon disaster, the federal government’s
response to the spill involved monumental efforts.           Almost 50,000 people,
including over 17,000 National Guard members, and over 4,000 vessels were
deployed in the Gulf of Mexico and the coastal region. Federal oversight of the
matter spanned multiple governmental agencies, with the President dispatching
to the Gulf region the Secretaries of the Interior and Homeland Security, the
Administrator of the EPA, the President’s Assistant for Energy and Climate
Change Policy, and the Administrator of NOAA. BP participated in the response
activities at the direction of the federal authorities to stop the oil spill. On July
15, 2010, a permanent cap was put in place at the well site to halt the flow of oil.
On September 19, 2010, the National Incident Commander announced that a
relief well had been completed, which effectively “killed” the Macondo well.
      Meanwhile, as the response efforts were ongoing, the Center filed suit
against BP and Transocean on June 18, 2010, alleging that the defendants
violated CWA because of the discharged oil and toxic pollutants from the
ruptured well. In August 2010, the Center filed a second action against BP and
Transocean asserting additional claims under CWA, CERCLA, and EPCRA. The
Center asserted the following counts of statutory violations: discharge of
pollutants, in violation of CWA, 33 U.S.C. § 1311 (Count 1); discharge of oil and
hazardous substances, in violation of CWA, 33 U.S.C. § 1321 (Count 2);
discharge of toxic pollutants, in violation of CWA, 33 U.S.C. § 1317 (Count 3);
discharge of pollutants, in violation of national standards of performance for

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offshore drilling operations under CWA, 33 U.S.C. § 1316 (Count 4); gross
negligence or willful misconduct pursuant to CWA, 33 U.S.C. § 1321(b)(7)(D)
(Count 5); failure to report to the National Response Center the release of
hazardous substances, in violation of CERCLA, 42 U.S.C. § 9603(a) (Count 6);
and failure to report the release of hazardous substances to the emergency
coordinator for the local emergency planning committee, in violation of EPCRA,
42 U.S.C. § 11004 (Count 7).
      In its prayer for relief, the Center sought the following: (1) a declaratory
judgment that the defendants had violated, continued to violate, or were
reasonably likely to continue to violate CWA, CERCLA, and EPCRA; (2) an
injunction enjoining the defendants from operating their offshore facility in a
manner that would result in further violation of CWA, CERCLA, and EPCRA,
specifically from discharging any further pollutants or from releasing any
hazardous substance without full and complete reporting under CERCLA and
EPCRA, and requiring full and complete reporting for hazardous substances
already released; (3) an order that the defendants divulge the complete list and
amounts of toxic pollutants contained in the oil and other releases from the
Deepwater Horizon rig and well; (4) civil penalties pursuant to CWA, CERCLA,
and EPCRA; (5) an order authorizing the Center to sample any discharge of
pollutants from the well for a period of ten years; (6) an order requiring the
defendants to provide the Center with copies of all reports and other documents
that defendants submit to regulatory authorities for a period of five years; and
(7) an injunction requiring the defendants to pay the cost of any environmental
restoration or remediation deemed necessary by the district court.
      The Multidistrict Litigation (“MDL”) Panel transferred the Center’s
complaints to MDL-2179 in the Eastern District of Louisiana (Judge Barbier).
The MDL case before Judge Barbier consists of hundreds of cases, with over
100,000 individual claimants, all in connection with the Deepwater Horizon

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disaster. In order to manage this complex litigation, the district court issued
Pretrial Order No. 11 establishing several “pleading bundles” into each of which
claims of similar nature would be placed for the purpose of filing a master
complaint, answers, and any Rule 12 motions. The Center’s complaints were
placed into Pleading Bundle D1, which was for claims by private parties for
injunctive relief and provided as follows:
            D. Injunctive and Regulatory Claims. These claims
      brought by private parties challenging regulatory action or
      authority and/or seeking injunctive relief will each be pled pursuant
      to Master Complaints as delineated below, and will include the
      following types of claims.

                   D1. Claims Against Private Parties. These claims
      will be pled separately and uniformly in a Master Complaint.

For purposes of answering or otherwise responding to the complaints in Pleading
Bundle D1, the allegations and prayers for relief contained in the Master
Complaint were deemed to amend and supersede allegations and claims
contained in the pre-existing individual complaints. The Center’s individual
complaints were not eliminated, however, but rather were stayed until further
order of the court.
      Consistent with the pretrial order, the D1 plaintiffs, including the Center,
filed a Master Complaint that was in most respects similar to the Center’s
individual complaints. The D1 Master Complaint alleged the same violations of
CWA, CERCLA, and EPCRA that had been alleged in the Center’s complaints,
as well as additional claims under the Endangered Species Act (“ESA”), state
law, and general maritime law.1 The Master Complaint also sought essentially
the same declaratory and injunctive relief that was sought in the Center’s



      1
        The district court’s resolution of the claims under ESA, state law, and general
maritime law are not part of the instant appeal.

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individual complaints. Unlike the Center’s individual complaints, however, the
D1 Master Complaint contained no prayer for civil penalties.
      The district court’s Pretrial Order No. 11 provided that civil penalties
requested in separate suits by governmental entities were to be placed in
Pleading Bundle C. The order also provided that civil penalties would not be
included in any other pleading bundles or master complaints. In Pretrial Order
No. 25, the district court later clarified that “[a]ny case currently pending in the
MDL that does not fall within pleading bundles A or C is deemed to fall within
one or more of the following: Pleading Bundle B1, Pleading Bundle B3, and/or
pleading Bundle D1, as may be applicable.” The Center’s civil penalty claims did
not fall within Pleading Bundles A or C, and the Center unsuccessfully moved
on three occasions in the district court to have all of its claims moved into
Pleading Bundle C.
      BP and Transocean separately moved to dismiss the D1 Master Complaint
pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The district
court conducted a hearing, during which it also considered motions to dismiss
other pleading bundles. The district court granted the motions to dismiss the D1
Master Complaint, finding that (1) the D1 plaintiffs lacked standing because
their alleged injuries were not redressable by a favorable decision, (2) the D1
claims were moot, and (3) the D1 claims were not actionable because the
defendants were not “in violation” of the alleged statutes.
      The court took judicial notice that the Macondo well had been capped on
July 15, 2010, thereby stopping the uncontrolled flow of oil, and that the well
had been permanently killed on September 19, 2010, when a relief well was used
to pump cement into the Macondo well. The court reasoned, therefore, that the
D1 plaintiffs’ claims were not redressable for two reasons. First, an injunction
would be useless because there was no longer an ongoing release from the well,
and there was no viable offshore facility from which any release could possibly

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                                  No. 12-30136

occur. Second, because cleanup activities were ongoing under the direction of
the National Incident Commander, the FOSC, and the Unified Area Command,
any order from the court would implicate parties not before the court, and the
plaintiffs could not show that an order would resolve any potential deficiency in
the cleanup effort. The court further held that the plaintiffs lacked standing to
bring their failure-to-report claim under EPCRA “[i]n light of the fact that there
is no on-going release of oil and that data regarding the spill and its cleanup are
easily accessible.”
      Similarly, the court held that the claims for injunctive relief were moot.
The court reasoned that because the Macondo well was dead and no longer
discharging oil, an injunction could not provide meaningful relief in terms of
stopping discharges that had already ceased. The court further noted that
because Pretrial Order No. 11 had limited the D1 Master Complaint to
injunctive relief, the D1 plaintiffs were not seeking the kind of civil penalties
that otherwise might prevent mootness.
      Finally, the court held that CWA, CERCLA, and EPCRA require plaintiffs
to show a reasonable likelihood of an ongoing violation in order to have an
actionable claim. But because there was no longer a viable facility from which
a release could occur, there was no reasonable possibility for a future release and
no ongoing violation. The district court dismissed the D1 Master Complaint in
its entirety.
      Following the district court’s written order, the Center filed an unopposed
motion for clarification pursuant to Federal Rule of Civil Procedure 59(e), asking
that the district court make explicit that the order dismissing the D1 Master
Complaint was a final judgment that also dismissed the Center’s underlying
individual complaints. Any confusion about the finality of the judgment with
respect to the Center presumably existed because the district court’s order had
adjudicated only claims for injunctive relief and did not mention the Center’s

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individual claims for civil penalties. Indeed, the Center’s motion advised that
the Plaintiffs’ Steering Committee (“PSC”) believed the court’s order was not a
final judgment under Federal Rule of Civil Procedure 54(b) but that the PSC did
not oppose such a designation by the district court.
      Thereafter, the Center filed a Notice of Non-Opposition, indicating that no
party had opposed the motion for clarification. The Center again asked the
district court to enter a final judgment. Approximately two months after filing
the Notice of Non-Opposition, the Center filed a renewed motion for clarification,
which had been temporarily withdrawn, yet again asking that an explicit final
judgment be entered within 30 days. When the district court did not enter such
an order, the Center’s counsel wrote a letter to the district court further raising
the issue of a final judgment. Counsel asked that the court enter a final
judgment in order to “allow the Center to exercise its right of appeal in this
matter.” Counsel stated that “[w]ithout an entry of final judgment, the Center
is in the untenable position of not being able to participate in the ongoing MDL
while also not being clear that it is able to appeal the Court’s ruling.” None of
the Center’s pleadings or correspondence suggested or requested that any of the
Center’s claims would remain live following entry of the final judgment.
      The district court then entered a final judgment “for the reasons stated in
the Court’s Order Dismissing the Bundle D1 Master Complaint . . . as that Order
relates to [the Center’s individual complaints].” The Center now appeals.
                        II. STANDARD OF REVIEW
      A district court’s dismissal for lack of subject matter jurisdiction pursuant
to Rule 12(b)(1) or for failure to state a claim pursuant to Rule 12(b)(6) is
reviewed de novo. Ballew v. Cont’l Airlines, Inc., 

, 781 (5th Cir.
2012); Turner v. Pleasant, 

, 775 (5th Cir. 2011). Legal questions
relating to standing and mootness are also reviewed de novo.                Envtl.



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Conservation Org. v. City of Dallas, 

, 524 (5th Cir. 2008); Ctr. for
Individual Freedom v. Carmouche, 

, 659 (5th Cir. 2006).
                      III. STATUTORY PROVISIONS
      The CWA was intended “to restore and maintain the chemical, physical,
and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). As a
general matter, its provisions prohibit the unauthorized discharge of pollutants,
including oil and other hazardous substances, into the waters of the United
States, and set standards for evaluating discharges from various sources. See
33 U.S.C. §§ 1311, 1316, 1317, 1321. The CWA authorizes citizen suits to obtain
injunctions and civil penalties, “payable to the United States Treasury, against
any person found to be in violation of ‘an effluent standard or limitation’ under
the Act.”   Envtl. Conservation 

(quoting 33 U.S.C.
§ 1365(a)). The district court has jurisdiction to enforce such effluent standard
or limitation regardless of the amount in controversy. § 1365(a).
      CERCLA and EPCRA require, inter alia, that discharges of certain
pollutants and hazardous substances be reported to the National Response
Center, see 42 U.S.C. § 9603(a) (CERCLA), or to state and local emergency
planning personnel. See 42 U.S.C. § 11004(b)(1) (EPCRA). Both statutes
authorize citizen suits to enforce their requirements and also permit both
injunctive relief and civil penalties. See 42 U.S.C. §§ 9659(a), (c) (CERCLA),
11046(a), (c) (EPCRA). Pursuant to CERCLA, the district court may “order such
action as may be necessary to correct the violation.” § 9659(c).
                              IV. DISCUSSION
      The Center challenges the district court’s dismissal of its claims,
contending that the court failed to accept the well-pleaded facts of its complaint
as true. It contends that the court improperly found that injunctive relief would
be moot because the Center alleged that the defendants were reasonably likely
to continue to discharge pollutants from the well site. According to the Center,

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                                  No. 12-30136

because jurisdiction is determined at the time of filing the complaint, and the
complaint alleged that there were continuing discharges of pollutants, it set
forth plausible claims for relief. The Center further argues that the district
court erroneously focused on the claim for injunctive relief enjoining the
defendants from operating the offshore facility in violation of CWA, CERCLA,
and EPCRA, while ignoring the Center’s other claims. It contends that because
all of its claims for relief are redressable by the district court, it has standing
and the suit should be reinstated.
      Upon review of the briefs, the applicable law, and the record in this case,
we conclude that the district court correctly dismissed most of the Center’s
claims as moot. But before considering mootness with respect to the Center’s
individual claims and prayers for relief, we first consider the district court’s
taking of judicial notice that the Macondo well was capped in July 2010 and
killed in September 2010, which was of central importance to the court’s
decision.
      A. Judicial notice
      Pursuant to Federal Rule of Evidence 201, a court is “entitled to take
judicial notice of adjudicative facts from reliable sources ‘whose accuracy cannot
reasonably be questioned.’” Sosebee v. Steadfast Ins. Co., No. 11-31134, 

, at *14 n.1 (5th Cir. Nov. 27, 2012) (quoting FED. R. EVID. 201(b)). A
district court’s application of judicial notice under Rule 201 is reviewed for an
abuse of discretion. Funk v. Stryker Corp., 

, 783 (5th Cir. 2011).
      Here, the district court noted at the hearing on the defendants’ motions to
dismiss the D1 Master Complaint that the Macondo well was dead. The court
did not, either at the oral hearing or in its written decision, indicate the source
or sources upon which the court relied for this information. Nevertheless, the
record bears out the district court’s statement.



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      For example, on September 19, 2010, National Incident Commander
Admiral Thad Allen issued a formal announcement that, due to BP’s completion
of the relief well and cementing, the Macondo well was “effectively dead” and
“poses no continuing threat to the Gulf of Mexico.” Admiral Allen indicated that
the relief well was completed by BP under the direction and authority of the
federal government’s science and engineering teams, and that the well’s killing
had been confirmed by the Department of the Interior’s Bureau of Ocean Energy
Management. Furthermore, on September 28, 2010, the Federal On-Scene
Coordinator, Rear Admiral Paul Zukunft, also stated that the well had been
killed on September 19, 2010, and that there had been no new oil introduced
since July 15.
      The Center argues that the district court was bound to accept the well-
pleaded facts of the complaint concerning alleged future discharges from the
well, essentially contending that the court improperly took judicial notice of the
well’s closing. The district court was not bound by the pleadings in order to
decide the Rule 12(b)(1) motion, however; rather, it was empowered to make
factual findings that were determinative of jurisdiction. Williamson v. Tucker,

, 413 (5th Cir. 1981).
      The Center further complains that it requested prior notice of any facts to
be judicially noticed but received no advance warning. Ordinarily, a party
should be given notice that the court intends to judicially notice facts and, when
appropriate, should be given an opportunity for discovery germane to a
jurisdictional dispute implicated by the noticed facts. See 

see also FED.
R. EVID. 201(e). We are not persuaded, however, that the district court’s
procedure was erroneous under the circumstances of this case.
      The court’s taking of judicial notice before notifying a party is not alone
improper, as the rule specifically contemplates such a possibility but allows the
party an opportunity to be heard if the party so requests. See FED. R. EVID.

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201(e) (“If the court takes judicial notice before notifying a party, the party, on
request, is still entitled to be heard.”). Here, the Center had notice from the
defendants’ motions to dismiss that the court was being asked to take judicial
notice. BP specifically argued that the capping and killing of the well were
judicially noticeable facts and that the Center’s claims were moot because the
well was dead. The Center therefore had an opportunity to be heard and
actually did—albeit minimally—respond to BP in its opposition. Cf. In re
Eckstein Marine Serv., L.L.C., 

, 316 (5th Cir. 2012) (holding that
defendant’s pleadings gave adequate notice to plaintiff that defendant was
challenging the district court’s jurisdiction under Rule 12(b)(1)); see also
Amadasu v. The Christ Hosp., 

, 508 (6th Cir. 2008) (noting that
Rule 201(e) “does not require ‘under all circumstances, a formal hearing’” and
finding no error because the plaintiff had an opportunity to be heard on judicial
notice by filing objections to the magistrate judge’s report and recommendations
(quoting Am. Stores Co. v. Comm’r of Internal Revenue, 

, 1271
(10th Cir. 1999))). At the hearing on the motions to dismiss, the district court
then asked the Center what evidence it had that the well was not indeed dead.
The Center did not indicate that it had at that time any evidence to refute that
fact, nor did it state that discovery was necessary.2
       More importantly, even after the district court took judicial notice in its
written decision, the Center could have moved for reconsideration or a further
hearing but it did not do so. See MacMillan Bloedel Ltd. v. Flintkote Co., 

, 587 (5th Cir. 1985) (holding that party “did not properly challenge the

       2
         The Center’s written opposition requested an opportunity to conduct discovery only
if the court took judicial notice of any facts, but when the district court asked about evidence
at the hearing, the Center apparently changed tracks and argued only that the court could still
order injunctive relief in the form of appropriate cleanup measures. The Center indicated that
at some unspecified future time hearings could be held and “experts” could educate the court,
but it did not indicate a need for, nor did it request, immediate discovery on the well’s status
or continued discharge of pollutants from the site.

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district court’s procedure, for there is nothing in the record to indicate that it
filed a motion after the district court took notice seeking an opportunity to be
heard concerning the propriety of taking judicial notice”); see also 21B CHARLES
ALAN WRIGHT & KENNETH W. GRAHAM, JR., FEDERAL PRACTICE AND PROCEDURE
§ 5109 (2d ed. 2005) (“[T]he party must request a retrospective hearing in order
to preserve the error for appeal.”). The Center fails to show even on appeal that
a different result could have been obtained through discovery. The Center points
to allegations and evidence that there may have been some minimal additional
discharges from the well site after the well was capped on July 15, 2010, but it
fails to show or even argue that there were discharges after the well was killed
in September 2010. Instead, the Center concedes in its brief that the completion
of the relief well in September 2010 was the only way to effectively kill the well.
We therefore see no reason to believe that the Center would have been able to
make different or more persuasive arguments in opposition to the judicial notice
had it been given additional notice or an opportunity for discovery.
      Moreover, our conclusion is informed by the atypical circumstances of this
case. As part of the MDL, the district court was receiving regular status updates
about the situation in the Gulf and was kept apprised of the well’s condition and
the ongoing efforts to shut it down. It is clear that the Government, which was
in charge of the situation, acted to force BP to stop the discharge, kill the well,
and abandon the site. Under all of the above circumstances, we conclude that
there was no error in the district court’s taking of judicial notice of the well’s
status. Therefore, we must next consider whether the district court, after taking
judicial notice, correctly concluded that the Center’s individual claims are moot.
      B. Mootness
      Federal court jurisdiction under Article III of the Constitution is limited
to “cases” and “controversies.” U.S. CONST. art. III, § 2, cl. 1; see City of Los
Angeles v. Lyons, 

, 101 (1983). In order to have standing to assert

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                                  No. 12-30136

federal jurisdiction, a plaintiff “must have suffered, or be threatened with, an
actual injury traceable to the defendant and likely to be redressed by a favorable
judicial decision.” Spencer v. Kemna, 

, 7 (1998) (internal quotation
marks and citation omitted). A plaintiff that has sufficiently alleged an injury
or a threatened injury to invoke federal jurisdiction may nevertheless lose the
ability to maintain the suit. See Envtl. Conservation 

(“[D]evelopments subsequent to the filing of a citizen suit may moot the citizen’s
case.”). “[A]ny set of circumstances that eliminates actual controversy after the
commencement of a lawsuit renders that action moot.” Ctr. for Individual

.
      “[M]ootness can be described as ‘the doctrine of standing set in a time
frame: The requisite personal interest that must exist at the commencement of
the litigation (standing) must continue throughout its existence (mootness).’”
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 

, 189
(2000) (citation omitted); see also 

(“This case-or-controvesy
requirement subsists through all stages of federal judicial proceedings.”)
(internal quotation marks and citation omitted). “If a case has been rendered
moot, a federal court has no constitutional authority to resolve the issues that
it presents.” Envtl. Conservation 

. Mootness applies when
intervening circumstances render the court no longer capable of providing
meaningful relief to the plaintiff. See Harris v. City of Houston, 

,
189 (5th Cir. 1998); see also Pac. Ins. Co. v. Gen. Dev. Corp., 

, 1096
(11th Cir. 1994).
      As noted above, the district court held that the Center’s case became moot
after BP successfully killed the Macondo well because that event meant that any
injunctive order to cease the discharge would be useless. The Center argues that
the court’s reasoning was flawed because under the stringent test for mootness
there must be absolutely no possibility for recurrence of the alleged violations.

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                                  No. 12-30136

It points out that it alleged that the defendants were reasonably likely to
continue to violate the environmental statutes. In cases dealing with alleged
polluters it is often appropriate to place a “heavy” burden on defendants to prove
that “it is absolutely clear that the allegedly wrongful behavior could not
reasonably be expected to recur.” Gwaltney of Smithfield, Ltd. v. Chesapeake
Bay Found., Inc., 

, 66 (1987) (internal quotation marks and citations
omitted). This standard “protects plaintiffs from defendants who seek to evade
sanction by predictable protestations of repentance and reform” after a lawsuit
is filed but who then continue their unlawful conduct upon dismissal of the suit.

(internal quotation marks and citation omitted).
      We have explained, however, that this standard applies when a
defendant’s voluntary conduct is claimed to have mooted the plaintiff’s suit.
Envtl. Conservation 

. For example, we explained that this
standard would be necessary if an alleged polluter asserted that CWA claims
became moot when it “voluntarily hired the requisite number of compliance and
monitoring staff or voluntarily set aside funds for supplemental environmental
projects” because otherwise “there would no impediment to the [polluter’s] laying
off the new hires or reallocating the funds” after the suit is dismissed. 

words, when a defendant has taken voluntary measures to stop a statutory
violation because it is facing litigation but could otherwise revert to the
offending conduct once litigation has ended, the defendant must bear the heavy
burden of showing the impossibility of that result in order to prove mootness.
      In this case, however, the defendants did not act voluntarily in a feigned
effort to comply with the environmental statutes and stave off litigation. The
killing of the Macondo well occurred at the insistence of the federal government
acting pursuant to the extraordinary powers granted to the President to oversee
and direct the emergency response to the oil spill. By all accounts in the record
before us, the well site is now effectively dead. This is not the typical case where

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                                  No. 12-30136

defendants may claim repentance and reform through voluntary action only to
revert to their old ways upon dismissal of the suit. We therefore must analyze
mootness by asking whether the citizen-suit plaintiff has proven “that there is
a realistic prospect that the violations alleged in its complaint will continue
notwithstanding” government-mandated corrective action. 

If not,
the case is moot. As we have previously explained, this “realistic prospect”
standard is consistent with “Congress’s intent that citizen suits ‘supplement
rather than . . . supplant government action.’” 

We
therefore turn now to the Center’s individual claims for relief.
            1. Injunctive relief to stop violating CWA, CERCLA, and EPCRA
      The Center first requested declaratory and injunctive relief declaring that
the defendants violated CWA, CERCLA, and EPCRA, and enjoining them from
operating the offshore facility in a manner that would result in further
violations. As the district court found, however, the record shows that the
Macondo well has been effectively killed and cemented shut, and there is no
offshore facility at the site being operated by the defendants. Therefore, because
there is no realistic prospect that further discharges will occur, there can be no
meaningful relief granted by an injunctive order enjoining the defendants from
operating the site in violation of CWA, CERCLA, and EPCRA. The district court
correctly held that this claim is moot. See 

(“[A] request
for injunctive relief generally becomes moot upon the happening of the event
sought to be enjoined.”); see also 

(the mootness doctrine
“prevent[s] the maintenance of suit when there is no reasonable expectation that
the wrong will be repeated”) (citations and quotation marks omitted); cf. S.F.
BayKeeper, Inc. v. Tosco Corp., 

, 1160 (9th Cir. 2002) (suggesting




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                                         No. 12-30136

that complete dismantling of a polluting facility could result in mootness of civil
penalty claims).3
       The Center argues that its claims for civil penalties keep the case alive
and preclude a finding of mootness.                 The Center’s individual complaints
requested civil penalties of up to $4,300 per barrel or $37,500 per day of violation
pursuant to CWA, and up to $37,500 per day of violation for each hazardous
substance not reported under CERCLA and EPCRA. It is true that the potential
deterrent effect of civil penalties may in some cases prevent mootness even
where injunctive relief has become moot. See Friends of the 

–86; Envtl. Conservation 

; see also Powell v.
McCormack, 

, 496 n.8 (1969) (“Where several forms of relief are
requested and one of these requests subsequently becomes moot, the Court has
still considered the remaining requests.”). The Center’s civil penalty claims do
not save its complaint, however, because the Center abandoned those claims
when it sought a final judgment from the district court for purposes of appeal.


       3
          The Center suggests that the case is not moot because BP retains its National
Pollutant Discharge Elimination System (“NPDES”) permit and could return to the well site.
In support, the Center cites San Francisco BayKeeper and Puerto Rico Campers’ Association
v. Puerto Rico Aqueduct and Sewer Authority, 

(D.P.R. 2002). In both of
those cases, however, the alleged polluting facility was still in operation; therefore, the
possibility for future violations to recur was entirely reasonable even though the unlawful
discharges had ceased from the specific source. See S.F. 

(holding
that even though defendant had sold the facility and was no longer operating it, claims were
not moot because facility was still operating and civil penalties imposed on defendant could
also have deterrent effect on new or future owners); Puerto Rico Campers’ Ass’n, 

at 220 (holding that claim was not moot even though source of effluent had been sealed
because defendant was still operating the facility, retained its NPDES permit, and was
actually diverting effluent from that facility to another facility). In this case, it is undisputed
that there is no facility operating at the Macondo well site and that the relief well, which was
completed under the supervision and approval of the federal government, was the only way
to kill the well. See also Friends of the 

(recognizing that defendant’s
closure of its facility could moot the case but noting that disputed issues of fact remained). We
are not persuaded that the speculative possibility that BP could some day return to this site,
after the tremendous time, energy, and manpower expended to close it, saves the Center’s
current claims from a finding of mootness.

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                                   No. 12-30136

      As noted above, the district court’s Pretrial Order No. 11 placed the
Center’s complaints into Pleading Bundle D1.           The district court’s order
dismissing the D1 Master Complaint did not address civil penalties, however.
The district court’s opinion noted that the D1 pleading bundle was limited to
injunctive claims. In an action involving multiple claims, a judgment that fails
to resolve all of a party’s claims is not a final appealable order. See FED. R. CIV.
P. 54(b) (“[A]ny order or other decision, however designated, that adjudicates
fewer than all the claims or the rights and liabilities of fewer than all the parties
does not end the action as to any of the claims or parties.”); Thompson v. Betts,

, 1245 & n.1 (5th Cir. 1985). When the Center sought a final
judgment for purposes of appeal, it even stated the position of the Plaintiffs’
Steering Committee that a final order had not been entered. Yet, the Center
took no action to ensure that its civil penalty claims remained live. For example,
it could have asked for a certification of final judgment for purposes of an
interlocutory appeal. See 28 U.S.C. § 1292(b); FED. R. CIV. P. 54(b). Instead, it
sought an immediate final judgment ordering that its individual complaints be
dismissed in their entirety along with the D1 Master Complaint.
      The Center acted at its own peril and may not now complain when the
district court did what it asked the court to do. See United States v. Baytank
(Houston), Inc., 

, 606 (5th Cir. 1991) (“A party generally may not
invite error and then complain thereof.”). Indeed, the Center apparently acted
strategically in order to pursue its appeal to this court. As the Seventh Circuit
has explained, however, “if plaintiff loses on A and abandons B in order to make
the judgment final and thus obtain immediate review, the court will consider A,
but B is lost forever.” Fairley v. Andrews, 

, 522 (7th Cir. 2009). We
conclude, therefore, that the Center abandoned its civil penalty claims in order
to obtain a final appealable judgment, and those claims may not now prevent a
finding that the adjudicated claims in the complaint are moot.

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                                   No. 12-30136

            2. Authorization to sample discharge
      The Center next requested as relief an order authorizing it to sample or
arrange for sampling of any discharge of pollutants from the well for a period of
ten years after the defendants come into compliance with CWA, CERCLA, and
EPCRA. Because the well site is now dead there is no reasonable prospect for
continued discharges, and thus nothing to sample. This claim for relief is
therefore moot for the same reasons that the request for injunctive relief
discussed above is moot.
            3. Copies of reports
      Next, the Center sought an order requiring the defendants to provide, for
a period of five years, copies of all reports that the defendants submit to
regulatory authorities. This requested relief “cannot conceivably remedy any
past wrong but is aimed at deterring” future statutory violations. Steel Co. v.
Citizens for a Better Env’t, 

, 108 (1998). In Steel Company, the
Supreme Court considered a similar request for relief under EPCRA and found
it insufficient to confer Article III standing. See 

reasoned that in
order for such requested relief to provide the basis for Article III standing, there
must be the prospect for continuing violations. See 

had
alleged a continuing violation or the imminence of a future violation, the
injunctive relief requested would remedy that alleged harm.”). Here, the Center
did allege in its individual complaints that the defendants were likely to
continue violating EPCRA by failing to report future discharges from the well
site. But as already noted, the district court correctly noticed that the well has
been killed and there is no competent record evidence of continued discharges
from the site. Therefore, on the facts of this case, the issue of standing is not
implicated, but because there is no longer a basis for the Center to seek copies
of the defendants’ future reports, the requested relief has become moot.



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                                       No. 12-30136

              4. Reporting under CERCLA and EPCRA for substances already
                 released

       The Center further sought injunctive relief ordering the defendants to
provide a complete reporting in accordance with CERCLA and EPCRA “for all
hazardous substances already released.” The Center alleged first that the
defendants’ failure to report the substances released violated Section 103 of
CERCLA, 42 U.S.C. § 9603(a). That provision states, in relevant part, that the
owner of an offshore facility “shall, as soon as he has knowledge of any release
. . . of a hazardous substance from such . . . facility in quantities equal to or
greater than those determined pursuant to section 9602 of this title, immediately
notify the National Response Center . . . of such release.” See also 40 C.F.R.
§ 302.6. The purpose of CERCLA’s reporting requirement is to ensure “the
Government’s ability to move quickly to check the spread of a hazardous
release.” United States v. Laughlin, 

, 966 (2d Cir. 1993) (internal
quotation marks and citation omitted). It is undisputed that BP notified the
National Response Center of the explosion on Deepwater Horizon and the oil spill
soon after they occurred, which resulted in an immediate governmental
response.     The Center’s allegations and request for relief with respect to
§ 9603(a) are therefore moot.4 See 

.
       The Center’s complaint further alleged that the defendants did not report
the types and quantities of pollutants released in the spill, which the Center
contends was required by EPCRA, 42 U.S.C. § 11004. The district court held
that the Center lacked standing to bring its EPCRA claim because it was

       4
         The defendants make an alternative argument that the Center’s CERCLA claim fails
on the merits because of the so-called “petroleum exclusion,” which excludes “petroleum,
including crude oil or any fraction thereof” from the definition of hazardous substances to be
reported under CERCLA. See 42 U.S.C. §§ 9601(14), 9603(a); Wilshire Westwood Assocs. v. Atl.
Richfield Corp., 

, 805 (9th Cir. 1989). We do not decide the question in light of
our conclusion about mootness, and the fact that the district court made no findings with
respect to the petroleum exclusion.

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                                  No. 12-30136

“unclear how the data collected under EPCRA can remedy the injury alleged by
Plaintiffs.” We conclude that the district court’s conclusion was incorrect.
      Pursuant to EPCRA, the owner or operator of a facility is required to
provide notice of a release of certain extremely hazardous substances or
substances covered under CERCLA to the “emergency coordinator for the local
emergency planning committees . . . for any area likely to be affected by the
release and to the State emergency planning commission of any State likely to
be affected by the release. ” 42 U.S.C. § 11004(a), (b)(1). The purpose of the
EPCRA framework is “to inform the public about the presence of hazardous and
toxic chemicals, and to provide for emergency response in the event of [a] health-
threatening release.” Steel 

; see also 42 U.S.C. § 11023(h).
Like CERCLA, EPCRA thus ensures that appropriate government authorities
are informed about the release of hazardous substances, but EPCRA also
ensures that the public is given access to important health-related information.
      The defendants argue that EPCRA requires no particular form of notice
that a release has occurred, and they assert that the information the Center
seeks about the oil spill is readily available on various government web sites.
They contend, therefore, that the Center’s claim is moot because it has been
overtaken by the presence of information, including health and safety
information, available on the Internet. The defendants’ argument essentially
challenges the redressability of the Center’s claimed injury, but we are not
persuaded.
      Under EPCRA, the initial notice to state and local emergency planners
may be oral and given by “telephone, radio, or in person.”             42 U.S.C.
§ 11004(b)(1). But the owner or operator must also provide written emergency
followup notice “[a]s soon as practicable after a release.” § 11004(c); see 40
C.F.R. § 355.41. Both the initial notice and the written followup emergency
notice are required to include, inter alia, the name and estimated quantity of any

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                                   No. 12-30136

substance involved in the release, the medium or media into which the release
occurred, any known or anticipated acute or chronic health risks associated with
the release, and precautions to take as a result of the release. § 11004(b), (c); see
also 40 C.F.R. §§ 355.11, 355.40. The written notices must be maintained by the
state emergency response commission and must be made available to members
of the general public. See §§ 11001(a), 11044(a). The statute specifically
authorizes “any person” to commence an action against an owner or operator for
failing to submit the written emergency followup notice. § 11046(a)(1)(A)(i).
      The Center provided affidavits from its members averring that they had
been exposed to substances emanating from the disaster either through direct
physical contact in the Gulf and on the shore or through contact with fish and
other wildlife.   Those members averred that they were concerned about
breathing air or ingesting water exposed to the substances and wanted to know
what types of substances were involved in the Deepwater Horizon release so that
they could assess the possible health effects of the exposure. At least one
member specifically averred that he had not seen any reports from BP
documenting the substances that were released in the spill despite his search for
such reports. This is the kind of concrete informational injury that the statute
was designed to redress. See FEC v. Akins, 

, 21 (1998) (“[A] plaintiff
suffers an ‘injury in fact’ when the plaintiff fails to obtain information which
must be publicly disclosed pursuant to a statute.”); see also Sierra Club, Inc. v.
Tyson Foods, Inc., 

, 703–06 (W.D. Ky. 2003) (holding that
denial of right to be informed of releases from defendant’s facility afforded
plaintiff standing to assert EPCRA claim for failure to report release of
chemicals).
      BP suggests in its brief that the Center’s informational injury claim is
moot because there is no continuing discharge from the well, and it cites the
Supreme Court’s decision in Steel Company. In that case, the Court did hold

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                                  No. 12-30136

that the plaintiff could not maintain its EPCRA suit based solely on past
violations of the statute. See Steel 

. But in that case, the
defendant had complied with EPCRA’s reporting requirements before the
plaintiff filed suit, and the issue was whether the plaintiff could sue for a
violation based on the untimely reporting. See 

The Court held that the
plaintiff lacked standing because the requested relief would not redress its
claimed injury by remedying past wrongs. See 

Here, however,
BP has never claimed that it has at any time complied with EPCRA’s reporting
requirement for a written notice. The Center’s suit specifically sought relief
based on a release of substances that had already occurred but remained
unreported under EPCRA, namely the spill from the ruptured well.               The
defendants’ failure to submit the required written emergency notice is thus a
continuing violation of EPCRA’s provisions. An order from the district court that
the defendants comply with EPCRA’s reporting requirement for that release
could therefore redress the Center’s claimed informational injury.
      The defendants’ insistence that the claim is moot because information
about the spill is already publicly available is unavailing, at least on the current
record. First, the claim that information about the disaster may be found by
hunting on the Internet ignores the fact that EPCRA places an affirmative
statutory duty on the owner or operator of the facility to report the information.
Second, it ignores the EPCRA requirement that reports provided by owners or
operators be maintained by state emergency planning authorities and be made
available to the public at a designated location. See 42 U.S.C. §§ 11001(a),
11044(a). The obvious advantage of this requirement is to have vital health
information available in one easily accessible place. Finally, although the
defendants claim that the information is otherwise readily available, their
citation to several government web sites is unconvincing. Our review of those
web sites reveals a voluminous amount of information about the spill and the

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                                     No. 12-30136

Government’s response, but the specific information required by EPCRA is not
immediately apparent.5 To be sure, the district court held that “data regarding
the spill and its cleanup are easily accessible,” but it cited no sources of
information and made no findings as to where the information specifically
required by EPCRA may be found. If the information required by EPCRA’s
reporting provisions may indeed be easily located from alternate sources, it may
be that a further order from the district court would provide no meaningful relief
to the Center and its members. Such a conclusion, although not affecting the
Center’s standing, might render the claim moot. See 

.
But we are simply unable to decide that question on this record, and the case
therefore must be remanded to the district court for further proceedings.
             5. Remediation
       Finally, the Center also sought injunctive relief ordering the defendants
to remove the pollutants from the water and affected coastal areas, and to pay
the costs of any environmental restoration or remediation that the court deemed
necessary and proper. The district court held that because cleanup efforts by the
defendants and by agencies from the federal government’s Unified Area
Command were already underway in the Gulf of Mexico there was no further
relief that it could order. The court further reasoned that it could not second-
guess the Government’s remediation decisions. We agree with the district court.
      The question when assessing whether a case is moot is whether any
effective relief can be granted. See Vieux Carre Prop. Owners, Residents &
Assocs., Inc. v. Brown, 

, 1446 (5th Cir. 1991). The Center argues
here that the district court erroneously dismissed its claim for an injunction
addressing remediation because a full remedial plan for the Gulf was not yet in


      5
        Some of the web pages cited in the defendants’ briefs lead to links to documents
comprising thousands of pages of information. We do not think that the intent of EPCRA is
met by requiring the public to search for a needle in a cyberspace haystack.

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                                      No. 12-30136

place. It asserts that the district court should not have dismissed the complaint
on the basis of the Government’s cleanup efforts before the Center could develop
its own proposed remediation plan. But the Center offers nothing more than
speculative and conclusory assertions about remediation efforts and the
existence of “vast amounts of oil” still in the Gulf rather than a coherent
assertion of what effective relief could be ordered by the district court. The
Center does not dispute that cleanup efforts are and have been ongoing in the
Gulf, and it identifies no deficiency in those efforts. Instead, the Center would
have the district court oversee remediation without identifying why or how it
should do so.6 As noted above, the Executive Branch is charged with the
responsibility to oversee the cleanup. See 33 U.S.C. § 1321(c)(1)(A), (2)(A).
Because those efforts have been ongoing, and absent a clear reason from the
Center to find them deficient, we see no error in the district court’s conclusion
that it could grant no further relief to the plaintiff beyond what is already being
done. See, e.g., 87th St. Owners Corp. v. Carnegie Hill-87th St. Corp., 

, 1219 (S.D.N.Y. 2002) (declining to order injunctive remedial
relief for oil spill because “plaintiff has been unable to describe a single action
that defendant could be ordered to take to reduce or eliminate any risk its past
actions may have caused, that is not already being undertaken by [the state
environmental agency]”). The Center asserts that it sought injunctive relief
beyond that which any government actor has already undertaken, but it cites
only to its general prayers for relief in the complaint, which we have already


       6
         The Center asserts that the D1 plaintiffs raised concerns about the nature of the
cleanup efforts in the district court, but it cites without further discussion to the master
complaint and to its opposition to the motions to dismiss. The problem with this argument is
two-fold. First, an appellant may not incorporate by reference arguments made in the district
court. See Turner v. Quarterman, 

, 295 n.1 (5th Cir. 2007). Second, the
arguments to which the Center refers concerned only whether the government cleanup efforts
would resolve the D1 plaintiffs’ ESA and state law trespass claims, but those claims are not
before us.

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                                  No. 12-30136

discussed above. We conclude that the district court properly dismissed this
claim as moot.
      C. Case management
      The Center also challenges the district court’s case management of the
MDL, specifically the district court’s use of pleading bundles and the separation
of the Center’s claims for injunctive relief and civil penalties. The Center argues
that the district court’s failure to place its civil penalty claims into a pleading
bundle (1) was contrary to the citizen-suit provisions of CWA, CERCLA, and
EPCRA, which permit federal courts to impose both injunctive relief and civil
penalties, and (2) resulted in a de facto dismissal of those claims.
      A district court’s decisions relating to case management are reviewed for
an abuse of discretion. See Pierce v. Underwood, 

, 558 n.1 (1988);
In re Air Crash Disaster at Fla. Everglades on Dec. 29, 1972, 

, 1013
(5th Cir. 1977). “The trial court’s managerial power is especially strong and
flexible in matters of consolidation.” In re Air Crash 

;
see also MANUAL FOR COMPLEX LITIGATION (FOURTH) § 10.1 (2004) (“Although not
without limits, the court’s express and inherent powers enable the judge to
exercise extensive supervision and control of litigation.”). The Federal Rules of
Civil Procedure specifically contemplate that in complex matters the district
court may adopt “special procedures for managing potentially difficult or
protracted actions that may involve complex issues, multiple parties, difficult
legal questions, or unusual proof problems.”        FED. R. CIV. P. 16(c)(2)(L).
Moreover, the district court is empowered to order separate trials of any “claim,
counterclaim, crossclaim, third-party claim, or particular issue.” FED. R. CIV. P.
16(c)(2)(M); see also FED. R. CIV. P. 42(b).
      To say the least, the instant case presents an exceedingly complex matter,
consisting of hundreds of individual cases and tens of thousands of claimants.
In the face of this daunting litigation, and given the “broad grant of authority”

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                                  No. 12-30136

to the district court, we perceive no error in those aspects of the court’s
management of the MDL that are involved in this case. In re Air Crash 

. The decision to create pleading bundles or to separate claims
for relief was well within the district court’s discretion.      This managerial
framework did not cause a de facto dismissal of the Center’s civil penalty claims.
Rather, as noted above, those claims were dismissed at the Center’s own
insistence by demanding a final judgment for purposes of appeal. We therefore
find no merit in the Center’s challenge to the district court’s case management
orders.
                               V. CONCLUSION
      For the reasons stated above, we conclude, with one exception, that the
district court did not err by dismissing the Center’s claims as moot. We further
conclude that, on the present state of the record, the Center has standing to
assert its claim for relief based on the defendants’ alleged failure to comply with
the reporting requirements of EPCRA, and that the EPCRA claim is not moot.
We therefore AFFIRM IN PART and REVERSE IN PART the district court’s
judgment and REMAND the case for further proceedings. Each party shall bear
its own costs.




                                        27