In Re DEEPWATER HORIZON

Case: 12-30012 Document: 00512542591 Page: 1 Date Filed: 02/24/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 12-30012 February 24, 2014
Lyle W. Cayce
IN RE: DEEPWATER HORIZON Clerk
Appeals from the United States District Court
for the Eastern District of Louisiana
Before JONES, BARKSDALE and SOUTHWICK, Circuit Judges.
EDITH H. JONES, Circuit Judge:
Eleven Louisiana coastal parishes (the “Parishes”) filed suits against BP
and other defendants (“Appellees”)1 involved in the DEEPWATER HORIZON oil
spill to recover penalties under The Louisiana Wildlife Protection Statute
(“Wildlife Statute”) for the pollution-related loss of aquatic life and wildlife.
La. R.S. 56:40.1.2 Suits filed originally in state court were removed to federal
1
The Parishes filed suit against BP Exploration & Production, Inc.; BP Products North
America, Inc.; BP America Production Company; and BP p.l.c. (collectively “BP”); Transocean
Ltd.; Transocean Offshore; Transocean Deepwater; and Transocean Holdings (collectively
“Transocean”); Halliburton Energy Services, Inc. and its related entities (collectively
“Halliburton”); M-I, LLC; Cameron International Corp.; Weatherford U.S., L.P.; Anadarko
Petroleum Corporation Co. and Anadarko E & P Company LP (collectively “Anadarko”); MOEX
Offshore 2007 LLC and MOEX USA Corp. (collectively “MOEX”); Mitsui Oil Exploration Co.,
Ltd. (“MOECO”).
On June 18, 2012, the district court entered a Consent Decree in MDL No. 2179
between the United States and MOEX defendants. Among other things, the Consent Decree
provided for the payment of civil penalties to the State of Louisiana, conditioned on the State
timely providing a Release to MOEX. The State timely provided the Release. Accordingly, the
district court dismissed the Parishes’ claims against MOEX.
2
La. R.S. 56:40.1 et seq. authorizes civil penalties against any “person who . . . through
the violation of any other state or federal law or regulation, kills or injures any fish, wild birds,
Case: 12-30012 Document: 00512542591 Page: 2 Date Filed: 02/24/2014
No. 12-30012
court, which denied the Parishes’ motions to remand and then dismissed all of
the Parishes’ claims as preempted by federal law. Both decisions are challenged
in the Parishes’ appeal. We concur with the district court that the state law
claims were removable pursuant to the jurisdictional provision of the Outer
Continental Shelf Lands Act (“OCSLA”). We also affirm their dismissal as
preempted by federal law.
BACKGROUND
The Macondo well, which was being drilled by the mobile offshore drilling
rig DEEPWATER HORIZON, experienced a catastrophic blowout and explosion
in April 2010 and caused hydrocarbon, mineral, and other contaminant pollution
all along the shores and estuaries of the Gulf Coast states, inflicting billions of
dollars in property and environmental damage and spawning a litigation frenzy.
Among the thousands of cases transferred for consolidated management by the
Judicial Panel on Multidistrict Litigation to the Eastern District of Louisiana
were the Parishes’ lawsuits, some of which had been removed from state court.
The district court handled cases filed by government entities, like the Parishes,
in various groups according to their common issues. Considering first the
remand motions filed by three of these Parishes, the court upheld its removal
jurisdiction notwithstanding that the cases alleged only penalties accruing under
state law for pollution damage that occurred in state waters or along the
coastline.3 The court predicated federal court jurisdiction on
43 U.S.C. § 1349(b)(1)(A). See In re: Oil Spill by the Oil Rig “Deepwater Horizon”
in the Gulf of Mex., on April 20, 2010 (In re: Oil Spill), 747 F. Supp. 2d 704,
wild quadrupeds, and other wildlife and aquatic life.”
3
At least three Parishes filed motions to remand (St. Bernard, Terrebonne,
Plaquemines), and the court’s pertinent order was issued on October 6, 2010. The docket
sheets are somewhat ambiguous about which Parishes are included in the ruling and order,
but all have appealed the refusal to remand.
2
Case: 12-30012 Document: 00512542591 Page: 3 Date Filed: 02/24/2014
No. 12-30012
708-09 (E.D. La. 2010). Next, considering various defendants’ Motions to
Dismiss the “B1” pleading bundle cases, filed for private or “non-governmental
economic loss and property damages,” the district court held that admiralty
jurisdiction was present because the alleged tort occurred upon navigable waters
and disrupted maritime commerce, and the operations of the DEEPWATER
HORIZON, the vessel, bore a substantial relationship to maritime activity.
In re: Oil Spill, 808 F. Supp. 2d 943, 951 (E.D. La. 2011). The district court also
held that state law was preempted by maritime law. Id. at 953-55. In a
subsequent order concerning the “C” pleading bundle cases, brought by the
states of Alabama and Louisiana, the court drew from its decision concerning the
“B1” pleading bundle to hold that the states’ wildlife actions are preempted by
federal law. See In re: Oil Spill, MDL No. 2179, 2011 WL 5520295, at *3, 8
(E.D. La. Nov. 14, 2011). Finally, when considering the Local Government
Entity Master Complaint and certain other cases within pleading bundle “C,” the
district court held, inter alia, that because the Parishes only asserted state law
claims, which the district court already deemed preempted, the cases failed to
state claims upon which relief could be granted and must be dismissed.
In re: Oil Spill, 835 F. Supp. 2d 175, 179-80 (E.D. La. 2011).
STANDARD OF REVIEW
“The district court’s denial of the motion to remand, the propriety of
removal under the various governing statutes, and the existence of subject-
matter jurisdiction here are all interrelated questions of law subject to de novo
review.” Oviedo v. Hallbauer, 655 F.3d 419, 422 (5th Cir. 2011) (emphasis
added). Further, “[w]e review the district court’s grant of summary judgment
on preemption grounds de novo.” O’Hara v. Gen. Motors Corp., 508 F.3d 753,
757 (5th Cir. 2007).
3
Case: 12-30012 Document: 00512542591 Page: 4 Date Filed: 02/24/2014
No. 12-30012
DISCUSSION
I. Removal Jurisdiction
The Appellees principally rely on OCSLA’s broad jurisdictional grant in
petitioning for federal court removal jurisdiction.4 Defendants may generally
remove a case from state court if the federal court would have had original
jurisdiction over it. 28 U.S.C. § 1441(a). The defendants bear the burden of
establishing the basis for removal, and operative facts and pleadings are
evaluated at the time of removal. City of Chicago v. Int’l Coll. of Surgeons,
522 U.S. 156, 163, 118 S. Ct. 523, 529 (1997). The pertinent provision,
OCSLA § 23(b)(1), states:
. . . the district courts of the United States shall have jurisdiction of
cases and controversies arising out of, or in connection with . . . any
operation conducted on the outer Continental Shelf which involves
exploration, development, or production of the minerals, of the
subsoil and seabed of the outer Continental Shelf, or which involves
rights to such minerals . . ..
The Fifth Circuit has interpreted this language as straightforward and
broad. See Tenn. Gas Pipeline v. Hous. Cas. Ins. Co., 87 F.3d 150, 154
(5th Cir. 1996); EP Operating Ltd. P’ship v. Placid Oil Co., 26 F.3d 563, 569
(5th Cir. 1994) (“[A] broad reading of the jurisdictional grant of section 1349 is
supported by the expansive substantive reach of the OCSLA.”). Moreover,
because jurisdiction is invested in the district courts by this statute, “[a] plaintiff
does not need to expressly invoke OCSLA in order for it to apply.” Barker v.
Hercules Offshore, Inc.,713 F.3d 208, 213 (5th Cir. 2013). Courts typically assess
4
Appellees’ reliance on 28 U.S.C. § 1331 “arising under” jurisdiction is unpersuasive
because no claim based on federal law appeared on the face of the Parishes’ well-pled
complaints. McKnight v. Dresser, Inc., 676 F.3d 426, 430 (5th Cir. 2012). Further, we need
not decide (a) whether the Parishes, whose recovery is “in the name of the State, and who will
share proceeds of any statutory recovery with the State,” are nonetheless “citizens” for
diversity purposes; or (b) whether the fact that the State, if the real party in interest, is a
plaintiff means that it cannot raise an Eleventh Amendment bar to removal.
4
Case: 12-30012 Document: 00512542591 Page: 5 Date Filed: 02/24/2014
No. 12-30012
jurisdiction under this provision in terms of whether (1) the activities that
caused the injury constituted an “operation” “conducted on the outer Continental
Shelf” that involved the exploration and production of minerals, and (2) the case
“arises out of, or in connection with” the operation. See, e.g., EP Operating Ltd.
P’ship, 26 F.3d at 568-69. As the district court noted, the fact that the oil spill
occurred because of the Appellees’ “operations” in exploring for and producing
oil on the Outer Continental Shelf (“OCS”) cannot be contested.
The Parishes do not concede, however, that, under the second half of the
inquiry, their statutory wildlife claims arose out of or in connection with the oil
production operation. Following the migration of contaminants from the well,
the injury to wildlife and aquatic life was wholly situated in state territorial
waters and on land. The statutory wildlife claims, they assert, have no effect on
the “efficient exploitation of resources from the OCS,” nor do they “threaten the
total recovery of federally-owned resources.” Id. at 570. “Mere connection” to
activities on the OCS, in other words, is insufficient to meet the jurisdictional
test.
This argument, however, cannot be squared with applicable Fifth Circuit
law or the facts before us. Even though one can hypothesize a “mere connection”
between the cause of action and the OCS operation too remote to establish
federal jurisdiction, this court deems § 1349 to require only a “but-for”
connection. See, e.g., Hufnagel v. Omega Serv. Indus., Inc., 182 F.3d 340, 350
(5th Cir. 1999) (applying the “but-for” test and finding § 1349 jurisdiction where
a worker on a stationary drilling platform in the OCS was injured); Tenn. Gas
Pipeline, 87 F.3d at 155 (using “but-for” test to find jurisdiction when a boat
collided with a platform, even though the accident was argued to be a
“navigational” error and the mineral operation in question did nothing to cause
the accident); Recar v. CNG Producing Co., 853 F.2d 367, 369 (5th Cir. 1988)
(applying OCSLA to a personal injury suit when a platform worker was injured
5
Case: 12-30012 Document: 00512542591 Page: 6 Date Filed: 02/24/2014
No. 12-30012
because a rope broke and caused him to fall to the deck of an adjacent transport
vessel). The but-for test does not include a purposive element as the Parishes
advocate. It is undeniable that “the oil and other contaminants would not have
entered into the State of Louisiana’s territorial waters ‘but for’ [Appellees’]
drilling and exploration operation.” In re: Oil Spill, 747 F. Supp. 2d at 708. This
is not, in short, a challenging case for asserting original federal jurisdiction, and
therefore removal jurisdiction, under OCSLA.
Undeterred by this reasoning, the Parishes raise additional but flawed
arguments. First, their attempt to intertwine the Section 1349 jurisdictional
inquiry with OCSLA’s choice of law provision, 43 U.S.C. § 1333, fails because the
provisions and the issues they raise are distinct. See, e.g., Dahlen v. Gulf Crews,
Inc., 281 F.3d 487, 491-92 (5th Cir. 2002); Recar, 853 F.2d at 368-70. Federal
courts may have jurisdiction to adjudicate a dispute under OCSLA, but they
must then turn to the OCSLA choice of law provision to ascertain whether state,
federal, or maritime law applies to a particular case. (Choice of law will be
addressed in the next section of this opinion.) Any contrary implication in
Golden v. Omni Energy Servs. Corp., 242 Fed. App’x 965, 967 (5th Cir. 2007), is
not precedential because the case was unpublished; we reference Golden here
only because the Parishes erroneously relied on it.5 Second, the Parishes
contend that there is a situs requirement for OCSLA jurisdiction under the
language of Section 1349. We disagree. Because federal jurisdiction exists for
cases “arising out of, or in connection with” OCS operations, 43 U.S.C. § 1349,
the statute precludes an artificial limit based on situs and the Parishes’
formulation conflicts with this court’s but-for test. See cases cited supra. Third,
5
Golden has been criticized and is in any event factually distinguishable from this
case, as the injury there originated in the land-based operation of the helicopter. See, e.g.,
David W. Robertson & Michael F. Sturley, Recent Developments in Admiralty & Maritime Law
at the National Level & in the Fifth & Eleventh Circuits, 33 Tul. Mar. L.J. 381, 464 (2009).
6
Case: 12-30012 Document: 00512542591 Page: 7 Date Filed: 02/24/2014
No. 12-30012
the Parishes misapprehend 28 U.S.C. § 1441(b) in urging that diversity of
citizenship is necessary to support the removal of an OCSLA claim. The version
of Section 1441(b) in effect at the time of the district court’s ruling required
instead that a federal basis for original jurisdiction exist (OCSLA) and that no
defendant be a citizen of the forum state.6 Because both of those preconditions
were met here, removal jurisdiction existed.
II. Choice of Law
The more difficult question in this appeal is whether the Wildlife Statute’s
penalties can be applied against the Appellees. The Parishes’ arguments are
easily summarized. Both briefs submitted by the Parishes (authored on behalf
of Orleans Parish, et al. and New Iberia Parish, et al.) acknowledge that the
mobile offshore drilling unit DEEPWATER HORIZON is a vessel. Demette v.
Falcon Drilling Co., 280 F.3d 492, 498-99 (5th Cir. 2002), overruled in part, on
other grounds, by Grand Isle Shipyard, Inc. v. Seacor Marine, LLC, 589 F.3d 778(5th Cir. 2009) (en banc); Offshore Co. v. Robison, 266 F.2d 769, 776
(5th Cir. 1959). Both briefs assert that, for this reason, the OCSLA choice of law
provisions cannot apply to their claims. (“Since, as the District Attorneys have
consistently maintained, OCSLA situs is lacking, OCSLA cannot apply.”) The
Parishes thus foreswear any reliance on 43 U.S.C. § 1333(a)(2)(A), which
6
Section 1441(b) was amended effective only for actions commenced after January 6,
2012. The Parishes’ claims commenced prior to that date. The language of Section 1441(b)
applicable to the Parishes’ claims provides:
Any civil action of which the district courts have original jurisdiction founded
on a claim or right arising under the Constitution, treaties or laws of the United
States shall be removeable without regard to the citizenship or residence of the
parties. Any other such action shall be removeable only if none of the parties
in interest properly joined and served as defendants is a citizen of the State in
which such action is brought.
28 U.S.C. § 1441(b).
7
Case: 12-30012 Document: 00512542591 Page: 8 Date Filed: 02/24/2014
No. 12-30012
borrows state law as surrogate federal law to regulate certain OCSLA activity.7
As Orleans Parish puts it, “[i]t is not the adoption of state law as federal
surrogate law that allows for penalties under Title 56, but the fact that the harm
to wildlife made subject of the District Attorneys’ suit occurred exclusively
within Louisiana state waters, and Louisiana has the right to exercise its
traditional police power . . . by pursuing penalty claims under Louisiana state
law.”8
While they purport to abjure the application of federal law, however, the
Parishes also rely on savings clauses in federal statutes that regulate water
pollution (Clean Water Act (“CWA”)), 33 U.S.C. § 1321(o),9 and oil pollution (Oil
Pollution Act (“OPA”)), 33 U.S.C. § 2718(c), and preserve some state remedies.
Of course, if the in-state location of wildlife injury alone suffices to support
Louisiana’s exercise of its police power, why resort to federal savings clauses?
The Parishes’ inconsistent positions reveal a basic flaw. The question here
is not whether federal law plays a role in remediating the effects of the Macondo
well blowout, but how extensive the role is. The Parishes cannot prove
Appellees’ responsibility, or respective shares of responsibility, for wildlife
injuries without alluding to the blowout’s physical source, emissions from a well
7
Of course, the Parishes cannot prevent the application of OCSLA as a litigation choice
any more than they could agree to a contract choice of law provision mandating admiralty law
in these circumstances. Alleman v. Omni Energy Servs. Corp., 580 F.3d 280, 283 n.2
(5th Cir. 2009) (“parties cannot choose to be governed by maritime law when OCSLA applies”).
8
The crux of the Parishes’ argument is this analogy: “If someone commits murder on
the navigable waters within the State of Louisiana, admiralty law might apply to any civil
claim arising from that death, but Louisiana would undoubtedly be able to prosecute the
murder under Louisiana law.” It is a bad analogy because it assumes the murder was
committed in Louisiana waters, unlike the pollution that simply migrated into state waters.
It is also an inapt basis for considering federal preemption, a subject that demands close
textual analysis of case law and statutes.
9
The district court referred to this provision by Section number of the Clean Water Act
(§ 311), rather than by the U.S.C. number (§ 1321).
8
Case: 12-30012 Document: 00512542591 Page: 9 Date Filed: 02/24/2014
No. 12-30012
drilled in the OCS, or its human source, errors or omissions related to the
DEEPWATER HORIZON’S production activity on the high seas above the OCS.
The Parishes’ pleadings expressly allege, inter alia, that Appellees caused the
Macondo well oil spill and violated federal regulations in so doing.
Analysis of federal law thus inevitably precedes the Parishes’ simplistic
lex loci delicti theory. Federal law covers the disaster in two ways. First,
pursuant to OCSLA, “[a]ll law applicable to the outer Continental Shelf is
federal law,” and all cases “involving events occurring on the Shelf [are]
governed by federal law . . ..” Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473,
480-81, 101 S. Ct. 2870, 2876 (1981); see 43 U.S.C. § 1333(a)(1) (“The . . . laws .
. . of the United States are extended to the subsoil and seabed of the outer
Continental Shelf and to all . . . devices permanently or temporarily attached to
the seabed . . . [for the purpose of resource exploitation].”) Federal law governs
injuries arising from activity on an OCSLA situs even if the injury occurs
elsewhere. See Alleman, 580 F.3d at 286 (OCSLA applies to helicopter accident
although victims fell into the sea after the helicopter crashed into an offshore
platform). OCSLA allows the borrowing of state law as surrogate federal law
only when state law is “not inconsistent with . . . other Federal laws and
regulations . . ..” 43 U.S.C. § 1333(a)(2)(A). The borrowing provision does not
apply here, however, either because, as the district court stated, the disaster is
governed by maritime law or because the broader language of Section 1333(a)(1),
which extends explicitly to devices temporarily attached to the OCS (as
Section 1333(a)(2)(A) does not), clearly controls.10 In sum, even if the Parishes
had not attempted to waive reliance on OCSLA, the federal law articulated by
10
This Court’s “PLT test,” which we have used to determine when state law may apply
to an OCSLA activity, is a misfit for the present case. See Union Tex. Petroleum Corp. v. PLT
Eng’g, Inc., 895 F.2d 1043, 1047 (5th Cir. 1990). PLT may suit cases under Section 1331(a)(2),
but it is hard to square with Section 1333(a)(1), where state law has no role.
9
Case: 12-30012 Document: 00512542591 Page: 10 Date Filed: 02/24/2014
No. 12-30012
OCSLA displaces state law. Further, as the Supreme Court has ruled,
Section 1333(a) “supersede[s] the normal choice-of-law rules that the forum
would apply.” Gulf Offshore, 453 U.S. at 482 n.8, 101 S. Ct. at 2877 n.8.
Alternatively, maritime law applies here because the DEEPWATER
HORIZON is a vessel. A strong argument exists for the proposition that the
disaster occurred while the vessel was engaged in the maritime activity of
conducting offshore drilling operations, and the disaster had a significant effect
on maritime commerce. Cf. Jerome B. Grubart, Inc. v. Great Lakes Dredge &
Dock Co., 513 U.S. 527 passim, 115 S. Ct. 1043 passim (1995) (maritime law
applies to damages where drill barge flooded underwater tunnel and buildings
on river bank); Theriot v. Bay Drilling Corp., 783 F.2d 527, 538-39
(5th Cir. 1986).
OSCLA Section 1333(a)(1) and admiralty law constitute alternative, not
overlapping, regimes of federal law. See Rodrigue v. Aetna Cas. & Sur. Co.,
395 U.S. 352, 361, 89 S. Ct. 1835, 1840 (1969); Texaco Exploration & Prod., Inc.
v. AmClyde Engineered Prods. Co., 448 F.3d 760, 772-73 (5th Cir. 2006). For
present purposes, however, the exact dichotomy is irrelevant as either regime
includes the federal statutes regulating water pollution and oil pollution, to
which we now turn.
A. General Principles
The Federal Water Pollution Control Act (aka Clean Water Act, “CWA”),
33 U.S.C. § 1251-1376, and its implementing regulations comprehensively
govern oil exploration and development on the OCS, including BP’s conduct of
the Macondo well operations pursuant to National Pollutant Discharge
Elimination System (“NPDES”) Permit No. GMG290000. Gulf Restoration
Network v. Salazar, 683 F.3d 158, 164-66 (5th Cir. 2012). Under the
regulations, states like Louisiana that might be affected by offshore pollutant
discharges may offer comments before permits are issued, but they have no other
10
Case: 12-30012 Document: 00512542591 Page: 11 Date Filed: 02/24/2014
No. 12-30012
express regulatory role. Id. at 165. Nevertheless, the Parishes assert the right
to pursue state law penalties against the Appellees for pollution that migrated
from nearly fifty miles offshore. We will examine their arguments in detail but
first explain further the pertinent background law.
Put in starkest terms, had the blowout occurred in Texas state waters and
caused pollution in Louisiana, the Parishes’ Louisiana law claims would be
squarely foreclosed. Federal preemption of interstate water pollution claims has
been a feature of United States law for over a hundred years. See, e.g., Missouri
v. Illinois, 200 U.S. 496, 26 S. Ct. 268 (1906). Since l987, the issue has been
settled by the Supreme Court’s decision in International Paper Co. v. Ouellette,
479 U.S. 481, 107 S. Ct. 805 (1987). In Ouellette, the Court resolved conflicting
circuit court decisions on the question whether a state could enforce its laws
against pollution that migrated into its environment from a neighboring state.
Compare Illinois v. City of Milwaukee, 731 F.2d 403, 410-11 (7th Cir. 1984), with
Ouellette v. Int’l Paper Co., 776 F.2d 55, 55-56 (2d Cir. 1985). The Court
explained that federal common law had, until 1971, governed “the use and
misuse of interstate waters,” and the Court reaffirmed the preemption of state
law by federal common law articulated in Illinois v. City of Milwaukee
(Milwaukee I), 406 U.S. 91, 92 S. Ct. 1385 (1972). Ouellette, 479 U.S. at 487,
107 S. Ct. at 809. The Court described how the enactment of the federal CWA
displaced federal common law with a complex scheme of cooperative federalism,
delegating to states the authority to issue NPDES effluent discharge permits to
point sources within their borders while retaining primary federal responsibility
to eliminate water pollution. Ouellette, 479 U.S. at 488-91, 107 S. Ct. at 809-11.
The Court then applied the standards of conflict preemption, concluding that the
“CWA precludes a court from applying the law of an affected State against an
out-of-state source.” 479 U.S. at 494, 107 S. Ct. at 813. The Court stated:
11
Case: 12-30012 Document: 00512542591 Page: 12 Date Filed: 02/24/2014
No. 12-30012
After examining the CWA as a whole, its purposes and its history,
we are convinced that if affected States were allowed to impose
separate discharge standards on a single point source, the inevitable
result would be a serious interference with the achievement of the
“full purposes and objectives of Congress.”
479 U.S. at 493, 107 S. Ct. at 812 (citation omitted).
Among its reasons, the Court noted that factors such as the impact of
discharges on a waterway, the types of effluents, and the schedule for
compliance may vary widely among sources. Point source states may require
stricter controls than the federal government. Complex policy, scientific, and
technological decisions are required. Lawsuits based on affected states’ common
law of nuisance would upset this “balance of public and private interests.”
479 U.S. at 494, 107 S. Ct. at 813. Such suits could “effectively override both the
permit requirements and the policy choices made by the source State.”
479 U.S. at 495, 107 S. Ct. at 813. The efficiency and predictability of the permit
system would be undermined, to the disadvantage of private regulated entities.
Chaotic confrontations among states could erupt over conflicting standards
imposed on a single point source. In sum,
It would be extraordinary for Congress, after devising an elaborate
permit system that sets clear standards, to tolerate common-law
suits that have the potential to undermine this regulatory structure.
479 U.S. at 497, 107 S. Ct. at 814.
Notably, Ouellette also confronted and rejected the contention that two
provisions of the CWA, which preserved a State’s right to regulate its waters and
an injured party’s right to seek relief under “any statute or common law,”
authorized the nuisance suit under the affected state’s law rather than that of
the point source state. According to the Court, neither savings clause, carefully
read, would stand for so broad a proposition. 479 U.S. at 492-93,
107 S. Ct. at 812. The citizen suit savings clause was preceded by the qualifier,
12
Case: 12-30012 Document: 00512542591 Page: 13 Date Filed: 02/24/2014
No. 12-30012
“[n]othing in this section,” while the states’ authority was saved for regulation
only of their own waters. Id.Ouellette’s interpretation of preemption under the CWA has not been
superseded by any later Supreme Court decision nor, as we shall see, by statute.
Indeed, its principles were affirmed by the Court in Arkansas v. Oklahoma,
503 U.S. 91, 100, 112 S. Ct. 1046, 1053-54 (1992).
Because the CWA was inadequate to provide complete remedies for the
Valdez, Alaska oil spill catastrophe, Congress passed the Oil Pollution Act
(“OPA”) in 1990. 33 U.S.C. §§ 2701-62. Congress intended that the OPA would
“build[] upon section 311 of the Clean Water Act [§ 1321] to create a single
Federal law providing cleanup authority, penalties, and liability for oil
pollution.” S. Rep. No. 101-94, at 9 (1989), reprinted in 1990 U.S.C.C.A.N. 722,
730. The OPA prescribes a supplemental, comprehensive federal plan for
handling oil spill responses, allocating responsibility among participants and
prescribing reimbursement for cleanup costs and injuries to third parties. The
remedial efforts for the Macondo well blowout occurred under the auspices of
both the CWA, 33 U.S.C. § 1321(b)(1) (the CWA applies to oil discharges in
connection with activities above the OCS), and the OPA, 33 U.S.C. § 2701(32)(C)
(extending the OPA to offshore facilities above the OCS).
Both the CWA and the OPA contain provisions that save state law causes
of action, including penalty claims, under certain circumstances. The CWA
clause involved in this case is 33 U.S.C. § 1321(o), which states in pertinent part:
(o) Obligation for damages unaffected, local authority not
preempted; existing Federal authority not modified or affected
(1) Nothing in this section shall affect or modify
in any way the obligations of any owner or operator
. . . or offshore facility to any person or agency under
any provision of law for damages to any publicly owned
13
Case: 12-30012 Document: 00512542591 Page: 14 Date Filed: 02/24/2014
No. 12-30012
or privately owned property resulting from a discharge
of any oil or hazardous substance . . ..
(2) Nothing in this section shall be construed as
preempting any State or political subdivision thereof
from imposing any requirement or liability with respect
to the discharge of oil or hazardous substance into any
waters within such State, or with respect to any
removal activities related to such discharge.
(3) Nothing in this section shall be construed
. . . to affect any State or local law not in conflict with
this section.
(Emphasis added).
The OPA’s provision is differently worded:
Section 2718(a). Relationship to Other Law
(a) Preservation of State authorities; Solid Waste
Disposal Act
Nothing in this Act . . . shall–
(1) affect, or be construed or interpreted as
preempting, the authority of any State or
political subdivision thereof from imposing
any additional liability or requirements
with respect to—
(A) the discharge of oil or other pollution
by oil within such State; or
(B) any removal activities in connection
with such a discharge; or
(2) affect, or be construed or interpreted to
affect or modify in any way the obligations
or liabilities of any person under . . . State
law, including common law.
....
(c) Additional requirements and liabilities; penalties
14
Case: 12-30012 Document: 00512542591 Page: 15 Date Filed: 02/24/2014
No. 12-30012
Nothing in this Act . . . shall in any way affect, or
be construed to affect, the authority of the United
States or . . . any State or political subdivision thereof–
(1) to impose additional liability or
additional requirements; or
(2) to impose, or to determine the
amount of, any fine or penalty
(whether criminal or civil in nature)
for any violation of law;
relating to the discharge . . . of oil.
33 U.S.C. § 2718(a), (c) (emphasis added).
B. Application of General Principles
The Parishes make two basic arguments. First, they assert that their
historic police powers to deter oil pollution in their waters and protect their
aquatic life and wildlife are preserved notwithstanding the application of federal
law. Second, they assert that both above-cited federal savings clauses expressly
protect their ability to levy Wildlife Statute fines. Each argument must be
carefully considered.
1. Does Ouellette control?
The Parishes’ first proposition depends on whether the states maintained
historic police powers to apply their local law to interstate water pollution even
if the pollution originated outside the state. The Supreme Court’s discussion of
the issue in Milwaukee I contradicts the Parishes’ position. 406 U.S. at 105-06,
92 S. Ct. at 1393-94. A federal common law of nuisance, not the competing laws
of each affected jurisdiction, was applied to interstate water pollution cases from
an early period. 406 U.S. at 106-07, 92 S. Ct. at 1394-95. This is not to say the
states were deprived of rights and remedies in such cases, but only that they had
to rely on the common body of federal law to do so. The claim by the states (and
15
Case: 12-30012 Document: 00512542591 Page: 16 Date Filed: 02/24/2014
No. 12-30012
their localities) to apply their historic police power in these situations is
therefore dubious.
Even assuming the Parishes have some residual police power to apply local
law to this OCSLA-originated discharge, however, they must overcome federal
preemption under the CWA. As the Supreme Court predicted in Milwaukee I,
406 U.S. at 107, 92 S. Ct. at 1395, Congress could and did supplant federal
common law with an overarching regulatory framework to protect the nation’s
waters. To effectuate the full purposes of the regulations, Ouellette held that the
states’ ability to apply local law to out-of-state point sources of alleged water
pollution was in conflict with the CWA. 479 U.S. at 494, 107 S. Ct. at 812-13.
The Parishes contend that Ouellette is distinguishable. First, it applies
only to the CWA’s permitting provision (33 U.S.C. § 1342), not to the oil
discharge prohibition (33 U.S.C. § 1321(o)). Relatedly, the savings provisions
that Ouellette found inapposite are different from the provisions the Parishes
rely on. Second, since Ouellette considered only interstate water pollution, the
decision has no bearing on discharges from the OCS. We find these distinctions
unpersuasive.
The Supreme Court’s subsequent interpretation of Oullette substantially
undermines any cramped reading of the case. The Court reiterated Ouellette’s
holding that “the Clean Water Act taken ‘as a whole, its purposes and its history’
pre-empted an action based on the law of the affected State and that the only
state law applicable to an interstate discharge is ‘the law of the State in which
the point source is located.’” Arkansas, 503 U.S. at 100, 112 S. Ct. at 1053 (citing
Ouellette, 479 U.S. at 493, 487, 107 S. Ct. at 812, 809) (emphasis added). This
statement is not limited to the specific provisions of the CWA at issue in
Ouellette; in fact, Arkansas refers to “interstate discharge” irrespective of type
or permit status. The Fourth Circuit confirmed Ouellette’s reach by applying it
to an interstate pollution dispute arising under the Clean Air Act. North
16
Case: 12-30012 Document: 00512542591 Page: 17 Date Filed: 02/24/2014
No. 12-30012
Carolina ex rel. Cooper v. Tenn. Valley Auth., 615 F.3d 291, 306-07 (4th Cir.
2010). That court concluded, “[t]here is no question that the law of the states
where emissions sources are located . . . applies in an interstate nuisance suit.
The Supreme Court’s decision in Ouellette is explicit: a ‘court must apply the law
of the State in which the point source is located.’” Id. at 306 (citation omitted).
Hoping to confine Ouellette to NPDES permitting cases and the specific
savings provisions the Court considered, the Parishes contend that the Court’s
goal in Ouellette was to prevent disruption of the point-source effluent
permitting system by redundant or conflicting state legal regimes.
33 U.S.C. § 1342. On the other hand, they contend, because the CWA essentially
prohibits “discharges” of “oil or hazardous substances” into the nation’s
navigable waters and the waters of the OCS, 33 U.S.C. 1321(b), allowing all
affected states to impose their laws on the illegal activity creates not conflict, but
reinforcement of federal law.
The Court’s opinion, however, resists such limitation. In the paragraph
that introduces the Court’s reasoning, Ouellette speaks plainly: “We hold that
when a court considers a State-law claim concerning interstate water pollution
that is subject to the CWA, the court must apply the law of the state in which
the point source is located.” 479 U.S. at 487, 107 S. Ct. at 809. There is no
mincing about the precise preemptive provisions of the federal CWA. Later, the
Court responds to the plaintiffs’ allegations that the point source violated the
terms of its NPDES permit by noting the availability of a citizen suit under the
CWA in lieu of the law of the affected state. 479 U.S. at 498 n.18, 107 S. Ct. at814 n. 18. A permit violation constitutes a “discharge” prohibited by Section
1321(b). 33 U.S.C. § 1321(a)(definition of “discharge”), (b)(3). The Court’s logic
must extend to oil discharges, which are illegal under the same provision. With
respect to oil pollution originating from the OCS, Ouellette offers an analogous
17
Case: 12-30012 Document: 00512542591 Page: 18 Date Filed: 02/24/2014
No. 12-30012
answer: the affected parties can sue for the generous remedies, including for loss
of wildlife, that the OPA offers. OPA, 33 U.S.C. § 2702(b)(2)(D).
A weaker argument against Ouellette urges that it quelled disputes over
the application of competing state laws to interstate water pollution but has no
impact on the overlay of state laws on a federally controlled point source. On the
contrary, the federal responsibility for the OCS is clear. The Macondo well site
was developed under a plethora of federal regulations, including an NPDES
permit. See generally Gulf Restoration Network, 683 F.3d at 165-66. The federal
government's interest is no different from that of point-source states, which aim
to encourage economic development while preserving optimal environmental
conditions for their citizens. Allowing up to five states along the Gulf Coast to
apply their individual laws to discharges arising on the Shelf would foster the
legal chaos described by Ouellette. That three Gulf coast states submitted
amicus briefs in this appeal, and all five Gulf Coast states filed suits11 to recover
damages based on particular state laws testifies to the problem. Moreover, just
as with entities operating in point-source states, if entities engaged in
developing the OCS were subjected to a multiplicity of state laws in addition to
federal regulations, they could be forced to adopt entirely different operational
plans or in the worst case be deterred by the redundancy and lack of regulatory
clarity from even pursuing their OCS plans. The reasons for avoiding redundant
or conflicting legal regimes are equally potent whether the point source is
located in a state or a federal enclave.
In sum, Ouellette forms a controlling backdrop for resolving claims caused
by the blowout. Federal law, the law of the point source, exclusively applies to
the claims generated by the oil spill in any affected state or locality.
11
The Local Government Entity Master Complaint alleges breach of tort duties under
the laws of Florida, Alabama, Mississippi, Louisiana, and Texas.
18
Case: 12-30012 Document: 00512542591 Page: 19 Date Filed: 02/24/2014
No. 12-30012
2. Effect of Savings Clauses
With Ouellette as the controlling law, there are no state remedies to “save.”
The OPA applies as the law of the OCSLA point source and, along with the CWA
penalties, furnishes a comprehensive remedial regime for affected states’
governmental and private claims. Just because the Parishes are located in the
most closely adjacent state, they fare no better than the “down-current” states
of Texas, Mississippi, Alabama, and Florida. The CWA and the OPA “savings”
clauses preserve but do not create state law claims. Knickerbocker Ice Co. v.
Stewart, 253 U.S. 149, 162, 40 S. Ct. 438, 441 (1920); Offshore Logistics, Inc. v.
Tallentire, 477 U.S. 207, 224-25, 106 S. Ct. 2485, 2495 (1986) (Death on the High
Seas Act savings clause only preserves state courts’ jurisdiction to provide
remedies for fatalities in state waters).12
Nevertheless, for additional reasons, each savings clause is powerless to
“save” the Parishes’ claims under the Wildlife Statute. In general, the savings
clauses must be read with particularity and, as Ouellette demonstrates, a
savings clause does not disrupt the ordinary operation of conflict preemption.
See Ouellette, 479 U.S. at 492-93, 107 S. Ct. at 812 (rejecting application of two
savings provisions of the CWA); Geier v. Am. Honda Motor Co., 529 U.S. 861,
869, 120 S. Ct. 1913, 1919 (2000).
a. CWA § 1321(o)
Most closely on point in the CWA is Section 1321(o)(2), which provides
that, “[n]othing in this Section shall [preempt any state or local] requirement or
liability with respect to the discharge of oil . . . into any waters within such
state . . . .” The provision only saves state laws imposing liability or additional
requirements with respect to the “discharge” of oil “into any waters within such
12
We reject the assertion in Alabama’s amicus brief that “effects jurisdiction” or the
“objective territorial principle,” theories associated only with international law, apply to the
federal preemption issues here.
19
Case: 12-30012 Document: 00512542591 Page: 20 Date Filed: 02/24/2014
No. 12-30012
State.” The provision does not save a state’s laws where the discharge did not
occur “within” the state. The Parishes contend that the term “discharge” should
be read to include “any means by which oil enters state waters.” According to
the statute, however, “discharge” “includes, but is not limited to, any spilling,
leaking, pumping, pouring, emitting, emptying or dumping . . ..” 33 U.S.C.
§ 1321(a)(2). These gerunds connote active conduct or movement from a point
source to a place within the state rather than the mere passive migration or
floating of oil into state waters. Contrary to the Parishes’ view, the word
“emitting” does not change this analysis. “Emit” means to send out or release.
Webster’s Third New International Dictionary 742 (3d ed. 1986). The principle
of noscitur a sociis, that words grouped in a list should be given related meaning,
reinforces our interpretation because, taken in context with the other gerunds,
“emitting” must take on an active cast. See Third Nat’l Bank in Nashville v.
Impac Ltd., Inc., 432 U.S. 312, 322-23, 97 S. Ct. 2307, 2313-14 (1977).13
The other subsections of Section 1321(o) afford no benefit to the Parishes.
Section 1321(o)(1) expressly saves damage claims, not penalties under the
Wildlife Statute. Section 1321(o)(3), a catch-all provision, saves state laws not
in conflict with the section itself. To construe the catch-all harmoniously with
Section 1321(o)(2), which is limited to discharges within state waters, and avoid
rendering the companion provision superfluous, the catch-all must be similarly
limited.
b. Section 2718(c)
The Parishes place the most emphasis on this savings clause from the
OPA. The section states that “[n]othing in this Act [OPA] . . . shall in any way
13
Askew v. Am. Waterways Operators, Inc., 411 U.S. 325, 93 S. Ct. 1590 (1973), does
not support the Parishes’ interpretation of Section 1321 as preserving state law regulation of
oil pollution that originated outside state waters. The spill in that case occurred adjacent to
Florida’s shore.
20
Case: 12-30012 Document: 00512542591 Page: 21 Date Filed: 02/24/2014
No. 12-30012
affect . . . the authority of the United States or any State [or locality] . . . to
impose . . . any fine or penalty . . .” relating to an oil discharge.
33 U.S.C. § 2718(c). First, they assert, the OPA was enacted to supplement the
older CWA apparatus for redressing the consequences of oil pollution. Second,
the Parishes urge that the OPA, being specific with regard to oil pollution,
controls over the more general requirements of the CWA, which applies to both
illegal oil and hazardous substance discharges into navigable waters. Third, the
exact language of Section 2718(c) differs critically from the CWA’s
Section 1321(o) because it lacks the narrowing reference to state waters.
Finally, a construction of Section 2718(c) that limits its effect to discharges
within state waters would allegedly render the OPA savings clause superfluous.
Section 2718(c), from their standpoint, preserves “all state penalty provisions
‘relating to’ oil spills in any way, not just those originating in state waters.” On
balance, however, we conclude that the Parishes place more weight on this
savings provision than it can bear.
To begin, the canon of construction that mandates application of a specific
over a general statutory provision is not easily adapted to this statutory scheme.
As all parties acknowledge, the CWA, the fountainhead of clean water
regulation, contains the provisions that prohibit oil discharges and set penalties
for illegal discharges. 33 U.S.C. § 1321(b)(3),(6) (“Administrative penalties”), (7)
(“Civil penalty actions”), (f) (“Liability for actual costs of removal”). These
provisions led the district court to declare the CWA’s savings provision more
specific than those in the OPA. The Parishes, in contrast, characterize
Section 2718(c) as plainly more specific both because it resides in the OPA and
it preserves state penalty actions. We do not, however, perceive the applicability
of these provisions to be an either/or proposition. Instead, each requires
interpretation within a statutory framework in which the OPA was designed to
complement, not compete with the CWA. That the OPA was enacted more
21
Case: 12-30012 Document: 00512542591 Page: 22 Date Filed: 02/24/2014
No. 12-30012
recently than the CWA means little where there is no fundamental conflict with
provisions of the CWA. The statutes, in other words, must be construed, as the
district court noted, in pari materia.
Moving to the specific language of Section 2718(c), the provision more
precisely states, “Nothing in this Act, the Act of March 3, 1851 (46 U.S.C. § 183et seq.), or § 9509 of Title 26, [shall affect] the authority of the United States or
any State or political subdivision thereof . . ..” Statutory construction begins
with the language of the statute, Hardt v. Reliance Standard Life Ins. Co.,
560 U.S. 242, 251, 130 S. Ct. 2149, 2156 (2010), and, in the absence of ambiguity,
often ends there. Two features of this prefatory language are notable. The
savings provision does not apply beyond the OPA itself and two other laws.
Further, Congress did not refer to the CWA. Courts are not at liberty to expand
the language chosen by Congress, and the omission here is telling. Thus, while
Section 2718(c) saves from the OPA’s diminution the ability of the United States
or state entities to impose requirements relating to oil discharges, it does not
save those powers from the effects of the CWA or any other non-identified
federal law. Consistent with this conclusion, the Supreme Court in Ouellette
held that a savings clause commencing with “nothing in this section” is by its
terms limited to preemption caused by that section alone. See 479 U.S. at 493,
107 S. Ct. at 812 (such a clause “does not purport to preclude pre-emption of
state law by other provisions of the Act”); see also United States v. Locke,
529 U.S. 89, 106, 120 S. Ct. 1135, 1146-47 (Section 2718 does not extend to
subjects addressed in other Titles of the OPA or other acts).
Other principles of statutory construction are relevant because of the
prefatory language here. If Section 2718(c) were interpreted, as the Parishes
contend, to “supersede” the CWA and Ouellette by allowing all affected states to
layer their unique penalty and regulatory laws on top of those governing this
OCSLA blowout, the result would be an implied repeal of CWA preemption.
22
Case: 12-30012 Document: 00512542591 Page: 23 Date Filed: 02/24/2014
No. 12-30012
Implied repeals, however, are disfavored. Crawford Fitting Co. v. J.T. Gibbons,
Inc., 482 U.S. 437, 442, 107 S. Ct. 2494, 2497 (1987); Ysleta del Sur Pueblo v.
Texas, 36 F.3d 1325, 1335 (5th Cir. 1994). Apart from omitting reference to
waters within the state, however, there is no indication in Section 2718(c) or the
OPA that Congress intended to repeal the point-source primacy ordained by the
CWA. That the OPA in fact amended CWA Section 1321(o)(2) to add the phrase
“or with respect to any removal activities related to such discharge” without also
amending the immediately preceding phrase “into any waters within such State”
signals Congressional intent not to modify this portion of the CWA. See OPA
Sec. 4202, Pub. L. No. 101-380, 104 Stat. 484, 532 (codified as 33 U.S.C.
§ 1321(o)(2)). Courts cannot, without any textual warrant, expand the operation
of Section 2718(c) to, in effect, modify the scope of preemption under the CWA.
It is also possible to understand why Section 2718(c) omits a reference to
waters within the affected state. Simply, the provision saves remedies available
to the United States as well as the states, rendering a geographic limitation to
state waters meaningless. Viewed in light of Congress’ presumed awareness of
Ouellette when the OPA was passed, and Congress’ failure to change the scope
of CWA preemption despite its intent generally to broaden remedies against oil
pollution, this omission cannot be controlling on the scope of this savings
provision.
Nor does this construction deprive the savings provision of utility, as the
Parishes assert. For any oil pollution whose point source is on the land or
navigable waters within a state, Section 2718(c) authorizes the point source
state and its political subdivisions to impose any additional liability,
requirements, fines, and penalties. Preemption is limited to situations in which
23
Case: 12-30012 Document: 00512542591 Page: 24 Date Filed: 02/24/2014
No. 12-30012
the affected state is not the point source jurisdiction; affected states may still
pursue relief based on the OPA and the CWA or the law of the point-source.14
Finally, we note that this interpretation does not diminish the incentives
for compliance with the CWA or the OPA or the point source states’ additional
laws concerning oil pollution. The federal laws’ extravagant penalties, fines,
criminal liability, and damage exposure that may be imposed on entities
associated with oil pollution, even in the absence of the layering of multiple
affected states’ laws, evidence a clear congressional policy of deterrence and
retribution.15
CONCLUSION
For the reasons stated above, the district court had removal jurisdiction
over the Parishes’ Wildlife Statute claims. Further, it correctly concluded that
the claims are preempted by the CWA as interpreted in Ouellette, and that
Congress did not reject that interpretation explicitly or by negative implication
in the CWA or when it passed the OPA. The judgment of the court dismissing
the Parishes’ claims is AFFIRMED.
14
The argument is also briefly made that the Parishes’ Wildlife Statute claims are
preserved by Section 2718(a)(1)(A), which allows any state or political subdivision thereof to
impose additional liability or requirements with respect to “the discharge of oil or other
pollution by oil within such State . . ..” The Parishes would limit “within such State” to
modifying “pollution by oil.” This does not wash grammatically; the geographic limitation
applies to both means of pollution.
15
From this discussion, it is clear that we reject a Tenth Amendment argument on
behalf of the Parishes and need not reach Appellees’ contention that the OPA’s proscription
of certain duplicative damages preempts the Wildlife Statute claims.
24