IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-30883

IN RE: DEEPWATER HORIZON

_____________________________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

B.P. EXPLORATION & PRODUCTION, INCORPORATED; ANADARKO 

PETROLEUM CORPORATION,

Defendants - Appellants

Appeals from the United States District Court

for the Eastern District of Louisiana

Before KING, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:

Appellants B.P. Exploration & Production, Inc. (“BP”) and Anadarko 

Petroleum Corporation (“Anadarko”) have filed petitions for en banc rehearing

of our judgment affirming the lower court’s grant of partial summary 

judgment. The en banc petitions remain pending. Although the parties have 

not filed separate petitions for panel rehearing, BP has “request[ed] that the 

panel reconsider its analysis.” BP Pet. Reh’g 9. We have done so, and we have 

also considered the arguments raised by Anadarko, which contends, inter alia,

that the panel opinion is “likely to sow error in the ongoing trial below.” 

United States Court of Appeals

Fifth Circuit

FILED

November 5, 2014

Lyle W. Cayce

Clerk

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Anadarko Pet. Reh’g 13. We disagree with this characterization of our opinion, 

but, for the sake of clarity, we address some of the arguments raised in the 

petitions for rehearing en banc. For the reasons discussed below, Appellants’ 

arguments fail to persuade us that we erred or need to alter our decision to 

affirm the district court’s grant of partial summary judgment.

This case involves the federal government’s civil enforcement action 

under Section 311 of the Clean Water Act (CWA), 33 U.S.C. § 1321(b)(7)(A), 

stemming from the 2010 Deepwater Horizon oil spill in the Gulf of Mexico. 

Section 311, a strict liability provision, mandates the assessment of fines on 

the owners or operators of any vessel or facility “from which oil or a hazardous 

substance is discharged.” Id. In the panel opinion, we affirmed summary 

judgment on the issue of Appellants’ liability under that provision. 

Interpreting the CWA according to its plain terms, we held that “a vessel or 

facility is a point ‘from which oil or a hazardous substance is discharged’ if it 

is a point at which controlled confinement is lost.” In re Deepwater Horizon, 

753 F.3d 570, 573 (5th Cir. 2014) (quoting 33 U.S.C. § 1321(b)(7)(A)). We 

further determined that BP and Anadarko, as co-owners of the Macondo Well

(the “well”), are liable under Section 311 because there was no dispute of 

material fact that controlled confinement of oil was lost in the well.

Appellants’ various arguments challenging this holding can be grouped 

into two categories: those based on purported factual errors in the panel 

opinion, and those based on purported errors in the panel opinion’s legal 

analysis. We address each in turn.

I. Purported Factual Errors in the Panel Opinion

Anadarko first contends that the panel opinion was premised on a 

mistake of fact, pointing to the following sentence in the opinion’s statement of 

facts: “As part of this preparation [for the Deepwater Horizon’s departure from 

the well site], the well had been lined and sealed with cement.” In re Deepwater 

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Horizon, 753 F.3d at 573. Anadarko argues that, “[c]ontrary to the assumption

of the Panel, all parties to this appeal agree that the cement never sealed off 

the well from the oil and gas in the rock formation beneath it.” Anadarko Pet. 

Reh’g 2. Anadarko further contends that this purported factual error has 

created, and will continue to create, issues in the proceedings before the lower 

court. Anadarko Pet. Reh’g 13.

We are doubtful that the panel opinion has created any confusion on this 

issue. Nevertheless, we here clarify that the above statement was not intended

to imply that the cement created a successful seal in the well. Anadarko is 

correct that all parties agree—and the record is clear—that the cement job 

failed to prevent hydrocarbons—e.g., oil—from migrating into the wellbore. 

Indeed, in the sentence following the one at issue, we stated that, “[b]efore the 

Deepwater Horizon departed, this cement failed, resulting in the high-pressure 

release of gas, oil, and other fluids.” In re Deepwater Horizon, 753 F.3d at 571. 

In any event, this issue is a red herring. Whether the cement initially sealed 

the well was immaterial to the panel opinion’s holding. As discussed in more 

detail below, it is only the fact that the cement in the well ultimately failed to 

stop the flow of oil (regardless of whether the cement at any prior point 

functioned as expected), and that control was therefore lost in the well, that 

prompted our determination that the well was a point “from which oil or a 

hazardous substance [was] discharged.” 33 U.S.C. § 1321(b)(7)(A).

Anadarko also argues that the panel’s holding has effectively denied it 

its Seventh Amendment right to a jury trial, as Anadarko was not permitted 

to put forward evidence regarding where controlled confinement was lost. 

However, the lower court placed no limit on the admissible evidence Anadarko 

could put forward in opposition to the Government’s motion for summary 

judgment, and in support of its cross-motion for summary judgment, on the 

issue of Anadarko’s Section 311 liability. Moreover, in its summary judgment 

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briefing, Anadarko conceded that there were no disputes of material fact with 

respect to this issue. See No. 2:10-MD-2179, Doc. 5113-2.1 Undoubtedly aware 

of this concession, Anadarko now contends that it could not have anticipated 

either the lower court’s or the panel’s “unprecedented” interpretations of 

Section 311—finding liability based on where “the uncontrolled movement of 

oil began,” In re Oil Spill by Oil Rig Deepwater Horizon in Gulf of Mexico, on 

Apr. 20, 2010, 844 F. Supp. 2d 746, 758 (E.D. La. 2012), and where “controlled 

confinement [was] lost,” In re Deepwater Horizon, 753 F.3d at 573, respectively. 

But in its summary judgment briefing before the lower court, Anadarko was 

aware that “control” of the oil might be at issue. In support of its argument that 

the oil was discharged from the Deepwater Horizon, Anadarko stated, “the 

owners and operators of the vessel . . . failed to maintain control of the Macondo

Well, and as a result of that failure, hydrocarbons discharged from the vessel 

and its appurtenances into the Gulf of Mexico.” No. 2:10-MD-2179, Doc. 5113-

2, at 4 (emphasis added).2

In any event, there are no additional facts that would alter our 

conclusion that controlled confinement was lost in the well. As we stated in 

the panel opinion, the only facts material to this analysis are undisputed. 

First, there is no question that Anadarko and BP are co-owners of the well. 

Nor do Appellants dispute that, as a result of the cement’s failure, oil flowed 

into the well and, eventually, into the Gulf of Mexico. Before the lower court, 

in their responses to the Government’s statement of undisputed facts, 

Appellants conceded for the purposes of summary judgment that “the cement 

1 Anadarko did note that there may be disputed facts warranting a jury trial regarding

the issue of whether Anadarko is an “owner, operator or person in charge” under 33 U.S.C. 

§ 1321(b)(7)(A). See No. 2:10-MD-2179, Doc. 5113-2, at 2 n.2; Doc. 5280, at 10 n.7. But that 

issue was never before us.

2 Indeed, Anadarko deemed this “factor . . . crucial to the resolution of these motions 

[for summary judgment].” No. 2:10-MD-2179, Doc. 5113-2, at 4.

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job failed to prevent hydrocarbons in the formation from migrating into the 

wellbore.” No. 2:10-MD-2179, Doc. 5113-3, at 5–6; see also Doc. 5124-1, at 2. 

Appellants further conceded that “[t]he Macondo well cement job was critical 

for maintaining well control.” No. 2:10-MD-2179, Doc. 5124-1, at 2 (emphasis 

added); see also Doc. 5113-3, at 5 (stating that the “cement job was a means of 

maintaining well control”).3 Even in their petitions for rehearing, Appellants

do not dispute these facts. However, Anadarko now argues that, because the 

cement never properly sealed the well, the well “could not have been the ‘point 

at which controlled confinement’ of oil was ‘lost’ because oil was never confined 

in the well to start.”4 Anadarko Suppl. Br. in Supp. of Pet. Reh’g 7. But that 

the cement—undisputedly placed in the well—failed to perform its function as 

a barrier to the flow of oil only underscores that controlled confinement was 

lost in the well.5

Both BP and Anadarko attempt to shift the focus to the Deepwater 

Horizon and its appurtenances (owned by the Transocean entities), arguing 

that control was lost either (1) when the blowout preventer failed, or (2) when 

the drilling mud (which Anadarko contends is an appurtenance of the 

Transocean vessel) was displaced with seawater, causing oil to enter the well. 

But, as discussed in more detail below, our determination that controlled 

confinement was lost in the well does not preclude the possibility that 

3 We note that federal regulations not at issue here, but addressed in subsequent 

proceedings in this case, require that well owners “take necessary precautions to keep wells 

under control at all times.” 30 C.F.R. § 250.401; see also 30 C.F.R. § 250.420(a) (requiring 

that well owners’ “casing and cementing programs . . . [p]revent the direct or indirect release 

of fluids from any stratum through the wellbore into offshore waters”).

4 It is worth noting that this argument would foreclose Appellants’ separate argument, 

discussed below, that the blowout preventer—which also failed to perform its function of 

containing oil in the well—was a point at which controlled confinement was lost.

5 Although Anadarko argues that “[a]t the temporary abandonment stage of a well, 

the well is not intended to ‘control’ or ‘confine’ oil,” Anadarko Suppl. Br. in Supp. of Reh’g 6, 

it is nonetheless undisputed that the cement placed in the well was intended to do so.

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controlled confinement was also lost elsewhere, an issue that we did not need 

to rule on. Further, with respect to the drilling mud, there is no dispute that 

its removal “allowed oil to escape from the formation” and into the well. 

Anadarko Suppl. Br. in Supp. of Pet. Reh’g 7. Again, the focus is on the well, 

and we come back to the loss of controlled confinement in the well. Moreover, 

the blowout preventer was not the first and only barrier to the discharge of oil. 

Rather, in BP’s own words, “a [blowout preventer] . . . ‘operates as a failsafe 

device designed to stop a blowout from progressing and, in the event of loss of 

control, seal the well and stop the flow of oil.’” BP Blue Br. 11–12 (emphasis 

added) (quoting Bricklayers & Masons Local Union No. 5 Ohio Pension Fund 

v. Transocean Ltd., 866 F. Supp. 2d 223, 230–31 (S.D.N.Y. 2012)). Thus, as BP 

implies, a blowout preventer becomes necessary only when control of the oil 

has already been lost. Indeed, by contending that the court erred in 

determining “that controlled confinement of oil was irretrievably lost in the 

well,” BP Suppl. Br. in Supp. of Pet. Reh’g 8, BP appears to concede that 

controlled confinement was initially lost in the well.

Therefore, Appellants’ contention that controlled confinement was not 

lost in the well is belied by the undisputed facts in the record and by 

Appellants’ own admissions.

II. Purported Legal Errors in the Panel’s Opinion

Appellants also challenge the panel’s legal conclusion that “a vessel or 

facility is a point ‘from which oil or a hazardous substance is discharged’ if it 

is a point at which controlled confinement is lost.” In re Deepwater Horizon, 

753 F.3d at 573 (quoting 33 U.S.C. § 1321(b)(7)(A)).

As an initial matter, BP suggests that the panel “realized” that “only one 

instrumentality can bear [CWA] liability for a discharge of a given quantum of 

oil,” BP Pet. Reh’g 10, and that the opinion’s “logic . . . suggests that Transocean 

. . . could not be held liable at all,” BP Pet. Reh’g 2. Although Appellants would 

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perhaps have preferred that the court adopt its “single instrumentality”

theory, we did no such thing. See In re Deepwater Horizon, 753 F.3d at 573 

(“[A] vessel or facility is a point ‘from which oil or a hazardous substance is 

discharged’ if it is a point at which controlled confinement is lost” (emphasis 

added)). The opinion makes clear that “any culpability on the part of the 

Deepwater Horizon’s operators does not exempt the well owners from the 

liability at issue here.” Id. at 575. Because the Transocean entities settled, we 

did not need to consider whether the oil discharged from the well might also 

have constituted a “discharge” from the Deepwater Horizon. Nor did we need 

to decide for purposes of other hypothetical scenarios not at issue here precisely 

under what circumstances civil penalty liability attaches for the owners and 

operators of vessels or facilities “upstream” and “downstream” from the facility 

or vessel at which controlled confinement was lost. 

Appellants also attempt to distinguish the cases we relied upon in 

support of our holding. Anadarko points to the fact that there is “no reported 

decision in which the owner of a facility has been held liable for penalties after 

a discharge from a vessel connected to the facility.” Anadarko Pet. Reh’g 7. BP 

similarly argues that “the cases on which the panel relied . . . . address the 

different situation where oil is discharged from a single instrumentality into 

the environment and it simply happens to flow across property owned by third 

parties (who bear no coequal legal responsibility as rig owners and operators 

to keep the oil confined) before reaching water.” BP Pet. Reh’g 11. These 

arguments may be true so far as they go,6 but only because no prior reported 

6 Some of the cases cited in the panel opinion may very well have involved instances 

in which oil discharged from one facility traversed through a second facility, both of which 

could have been subject to liability under Section 311. For example, in Pepperell Associates

v. EPA, 246 F.3d 15 (1st Cir. 2001), which involved oil that spilled from a factory, through a 

sewer, and ultimately into a creek, id. at 20, the sewer, in addition to the factory, may have 

been considered an “onshore facility,” see 33 U.S.C. § 1321(a)(10) (defining “onshore facility” 

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cases have presented facts that are directly analogous to those in the present 

case. Moreover, Appellants’ attempt to distinguish these cases is rooted in an 

assumption that only one instrumentality may be held liable for a given

discharge, an issue that we explicitly did not reach. See BP Pet. Reh’g 11 

(“[T]he cases on which the panel relied . . . do not speak at all to the real 

problem of assigning [CWA] liability between one of two mutually exclusive 

instrumentalities.”).

As explained in the panel opinion, our holding is consistent both with the 

caselaw interpreting Section 311 and with its history of enforcement. The 

panel opinion points to several cases and agency decisions where owners of 

facilities received fines under Section 311 for oil that was released from their 

facility, even though that oil subsequently flowed through conduits or over 

property owned by third parties before entering navigable water. See Pepperell 

Assocs. v. EPA, 246 F.3d 15, 20 (1st Cir. 2001); Pryor Oil Co., Inc. v. United 

States, 299 F. Supp. 2d 804, 806 (E.D. Tenn. 2003); Union Petroleum Corp. v. 

United States, 651 F.2d 734, 56, 61–62 (Ct. Cl. 1981); In re D & L Energy, Inc., 

V–W–13 C–006 (EPA ALJ Feb. 27, 2013); In re Phila. Macaroni Co., CWA–III–

187 (EPA ALJ May 28, 1998).7 Anadarko argues that these cases do not 

involve penalties under Section 311(b). This contention may be technically 

true, but it is of little consequence. Although Pepperell involved an appeal from 

an administrative determination that an onshore facility failed to prepare a 

broadly as “any facility (including, but not limited to, motor vehicles and rolling stock) of any 

kind located in, on, or under, any land within the United States other than submerged land”).

7 Anadarko challenges the panel opinion’s citation to the two EPA administrative 

orders which, according to Anadarko, are “inapposite and [have] no precedential 

significance.” Anadarko Pet. Reh’g 9, 10 n.4. But the panel never contended that these 

decisions were binding precedent. Rather, they were cited as relevant to rebut Appellants’ 

argument that their Section 311 liability was precluded by the fact that the property 

traversed by the oil was owned by a third party. See In re Deepwater Horizon, 753 F.3d at 

574. Anadarko cites no authority rendering a statute’s administrative enforcement 

irrelevant in this context.

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spill response plan under Section 311(j), the ALJ had also previously 

determined that the facility violated Section 311(b)(3), the provision at issue 

in this case. 246 F.3d at 20–22. Similarly, while Union Petroleum concerned 

cleanup costs under Section 311(i), rather than civil penalties under Section

311(b)(3), see 651 F.2d at 741, Section 311(i) applies “where an owner or 

operator of a vessel or an onshore facility or an offshore facility from which oil 

or a hazardous substance is discharged in violation of subsection (b)(3) of this 

section acts to remove such oil or substance,” 33 U.S.C. § 1321(i) (emphasis 

added).

BP also argues that the court failed to address BP’s argument “that the 

location of the discharge depends on the instrumentality from which oil escapes 

confinement.” BP Pet. Reh’g 8. According to BP, “when oil simply moves from 

one confined instrumentality to another without escaping, no Clean Water Act 

violation can possibly occur.” BP Pet. Reh’g 9. Along those same lines, 

Anadarko asserts that “[c]ommonsense dictates that the movement of oil from 

a facility into a vessel does not retroactively become a ‘discharge’ within the 

meaning of Section 311(b)(7) because the oil later exits the vessel’s confinement 

into the environment.” Anadarko Pet. Reh’g 6; see also Anadarko Suppl. Br. in 

Supp. of Pet Reh’g 5. This argument—which, prior to the petitions for 

rehearing, was raised in a single sentence in BP’s opening brief, see BP Blue

Br. 618—lacks merit. The opinion nowhere suggests that the mere act of 

moving oil from a facility into a vessel constitutes a discharge. Such an act 

does not result in oil entering navigable waters and does not necessarily denote 

a loss of controlled confinement. But it does not follow from this that when the 

8 The sentence reads: “It is undisputed that the only oil ever to escape confinement 

and reach water escaped from the Deepwater Horizon and its appurtenances and that only 

oil that reaches water is capable of . . . trigger[ing] Section 1321(b)(7) liability.” BP Blue Br. 

61.

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controlled confinement of oil in a facility is lost such that it enters a vessel and 

then navigable waters, only the vessel is liable. Neither the CWA nor 

“commonsense” dictate otherwise.

Appellants further argue that it was improper for the Panel to include a 

“control” element in defining a “discharge” under the CWA. Anadarko asserts 

that, “[i]n its transitive form, the verb ‘discharge’ is defined as ‘[t]o release, as 

from confinement . . . .’ [and i]n its intransitive form, the verb ‘discharge’ is 

defined, in part, as ‘[t]o pour forth, emit, or release contents.’” Anadarko Pet. 

Reh’g 5 n.1 (quoting The American Heritage Dictionary of the English 

Language 530 (3d ed. 1992)). But as Anadarko’s own definitions suggest, the 

term “discharge” focuses not only on a loss of confinement but on the act of 

“releas[ing].” This connotes a loss of control. BP argues that inclusion of a 

“control” element to the test improperly “smuggles [into the case] negligence 

concepts” inconsistent with “the statute’s strict liability, locational test.” BP 

Suppl. Br. in Supp. of Pet. Reh’g 6–10. However, the inquiry the panel engaged 

in—determining whether the well was a point at which controlled confinement 

was lost (without regard to which party, if any, was responsible for the loss of 

control)—is entirely consistent with such a test. Anadarko contends that

including a control element is also problematic because it would mean that 

“controlled discharges would not be prohibited” by Section 311. Anadarko Pet. 

Reh’g 5. This argument is unpersuasive. It appears that Anadarko is arguing 

that the control element would preclude CWA liability in situations when a 

party intended to discharge oil and other hazardous substances. But this 

confuses the terms “control” and “intent.” There is no reason, under our 

construction of discharge, why a party would not be liable when it intentionally 

gives up control of oil that had been confined within a facility or vessel that it 

owned or operated. 

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Anadarko also attacks the panel opinion’s standard for determining the 

point from which oil is discharged as “unworkable.” Anadarko hypothesizes “a 

system where 24 separately owned and operated wells connect to a vessel, 

which connects to a pipeline, which connects to a floating platform, which 

interconnects with an interstate pipeline, which interconnects with an onshore 

facility dozens of miles away,” and asks: “How could a fact-finder find the 

precise point where ‘controlled confinement is lost’ within that system?” 

Anadarko Pet. Reh’g 8. Anadarko, however, fails to give any reasons 

explaining why it would be difficult to determine where controlled confinement 

is lost in an interconnected system. In this case, for instance, it was not 

difficult to determine that the controlled confinement of oil was lost in the well. 

Second, Anadarko’s hypothetical again assumes that there may only be a 

single point at which controlled confinement is lost, an issue we did not rule 

on. 

Both BP and Anadarko also contend that the panel should have applied 

the rule of lenity or the anti-penalty canon to construe Section 311 narrowly so 

as not to apply to them. However, such presumptions are warranted only “if, 

after considering text, structure, history, and purpose, there remains a 

grievous ambiguity or uncertainty in the statute, such that the Court must 

simply guess as to what Congress intended.” Barber v. Thomas, 560 U.S. 474, 

488 (2010) (internal citation and quotation marks omitted). Here, because the 

text of Section 311, and the history of its application, clearly demonstrate that 

a vessel or facility is a point “from which oil or a hazardous substance is 

discharged,” 33 U.S.C. § 1321(b)(7)(A), if it is a point at which controlled 

confinement is lost, we decline Appellants’ appeals to the rule of lenity and the 

anti-penalty canon.

Finally, BP argues that it is not, “as the panel thought, attempting to 

introduce concepts of ‘third-party fault’ into the strict-liability scheme of the 

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[CWA].” BP Pet. Reh’g 14. But this argument is contradicted by Appellants’ 

briefing in this case, both before the panel and before the lower court. At 

multiple times in the course of this litigation, Appellants have attempted to 

shift liability to Transocean on the grounds that they were not at fault for the 

spill, but that Transocean was at fault. 

III. Conclusion

For the reasons given in the panel opinion, as supplemented hereby, the 

panel continues to hold that the district court judgment was correct.

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