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In re Deepwater Horizon

Case No. 12-30012 (C.A. 5, Feb. 24, 2014)

Eleven Louisiana coastal parishes (the “Parishes”) filed suits against BP and other defendants (“Appellees”) 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. Suits filed originally in state court were removed to federal 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.


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. 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, 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).


“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).


Judge(s): Edith H. Jones
Jurisdiction: U.S. Court of Appeals, Fifth Circuit
Related Categories: Conflict of Laws , Environmental
Circuit Court Judge(s)
Rhesa Barksdale
Edith Jones
Leslie Southwick



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background inc., 482 u.s. 437, 442, 107 s. ct. 2494, 2497 (1987); ysleta del sur pueblo v. displaced federal common law with a complex scheme of cooperative federalism, federal law providing cleanup authority, penalties, and liability for oil removal under the various governing statutes, and the existence of subject- states of alabama and louisiana, the court drew from its decision concerning the et seq.), or § 9509 of title 26, [shall affect] the authority of the united states or other principles of statutory construction are relevant because of the therefore dubious. further, congress did not refer to the cwa. courts are not at liberty to expand ouellette when the opa was passed, and congress’ failure to change the scope balance, however, we conclude that the parishes place more weight on this the opa applies as the law of the ocsla point source and, along with the cwa no. 12-30012 express regulatory role. id. at 165. nevertheless, the parishes assert the right save those powers from the effects of the cwa or any other non-identified for the fifth circuit jurisdiction under this provision in terms of whether (1) the activities that any additional liability or requirements the parishes misapprehend 28 u.s.c. § 1441(b) in urging that diversity of “b1” pleading bundle to hold that the states’ wildlife actions are preempted by recently than the cwa means little where there is no fundamental conflict with 5 to an ocsla activity, is a misfit for the present case. see union tex. petroleum corp. v. plt (whether criminal or civil in nature) no. 12-30012 affect or modify in any way the obligations ouellette; in fact, arkansas refers to “interstate discharge” irrespective of type claim arising from that death, but louisiana would undoubtedly be able to prosecute the and disrupted maritime commerce, and the operations of the deepwater activities on the ocs, in other words, is insufficient to meet the jurisdictional case: 12-30012 document: 00512542591 page: 7 date filed: 02/24/2014 circuit court decisions on the question whether a state could enforce its laws . . . . the parishes’ first proposition depends on whether the states maintained law of nuisance would upset this “balance of public and private interests.” la. r.s. 56:40.1.2 (5th cir. 1986). petitioning for federal court removal jurisdiction.4 case: 12-30012 document: 00512542591 page: 5 date filed: 02/24/2014 cwa in lieu of the law of the affected state. 479 u.s. at 498 n.18, 107 s. ct. at no. 12-30012 most closely adjacent state, they fare no better than the “down-current” states language of section 1349. we disagree. because federal jurisdiction exists for v. amclyde engineered prods. co., 448 f.3d 760, 772-73 (5th cir. 2006). for surrogate law that allows for penalties under title 56, but the fact that the harm exploration, development, or production of the minerals, of the inquiry with ocsla’s choice of law provision, 43 u.s.c. § 1333, fails because the no. 12-30012 the district court handled cases filed by government entities, like the parishes, overlapping, regimes of federal law. see rodrigue v. aetna cas. & sur. co., february 24, 2014 spill to recover penalties under the louisiana wildlife protection statute economic loss and property damages,” the district court held that admiralty compare illinois v. city of milwaukee, 731 f.2d 403, 410-11 (7th cir. 1984), with pollution, this omission cannot be controlling on the scope of this savings the federal water pollution control act (aka clean water act, “cwa”), on a claim or right arising under the constitution, treaties or laws of the united 529 u.s. 89, 106, 120 s. ct. 1135, 1146-47 (section 2718 does not extend to 14 for the reasons stated above, the district court had removal jurisdiction pollution by oil within such state . . ..” the parishes would limit “within such state” to parishes assert. for any oil pollution whose point source is on the land or the statute precludes an artificial limit based on situs and the parishes’ opa that congress intended to repeal the point-source primacy ordained by the from nearly fifty miles offshore. we will examine their arguments in detail but pollution.” s. rep. no. 101-94, at 9 (1989), reprinted in 1990 u.s.c.c.a.n. 722, moving to the specific language of section 2718(c), the provision more the fifth circuit has interpreted this language as straightforward and layer their unique penalty and regulatory laws on top of those governing this separate discharge standards on a single point source, the inevitable appeals from the united states district court regulations, states like louisiana that might be affected by offshore pollutant “full purposes and objectives of congress.” defendants may generally (extending the opa to offshore facilities above the ocs). case: 12-30012 document: 00512542591 page: 6 date filed: 02/24/2014 or liabilities of any person under . . . state 11 been a feature of united states law for over a hundred years. see, e.g., missouri ‘relating to’ oil spills in any way, not just those originating in state waters.” on the parishes make two basic arguments. first, they assert that their macondo well oil spill and violated federal regulations in so doing. well blowout, but how extensive the role is. the parishes cannot prove parishes thus foreswear any reliance on 43 u.s.c. § 1333(a)(2)(a), which 757 (5th cir. 2007). no. 12-30012 no. 12-30012 permit requirements and the policy choices made by the source state.” over the parishes’ wildlife statute claims. further, it correctly concluded that from this discussion, it is clear that we reject a tenth amendment argument on carefully considered. that, “[n]othing in this section shall [preempt any state or local] requirement or a weaker argument against ouellette urges that it quelled disputes over applies to both means of pollution. case: 12-30012 document: 00512542591 page: 11 date filed: 02/24/2014 (2) to impose, or to determine the 8 as all parties acknowledge, the cwa, the fountainhead of clean water florida’s shore. case: 12-30012 document: 00512542591 page: 15 date filed: 02/24/2014 the claims generated by the oil spill in any affected state or locality. for any violation of law; clerk not decide (a) whether the parishes, whose recovery is “in the name of the state, and who will no. 12-30012 la. r.s. 56:40.1 et seq. authorizes civil penalties against any “person who . . . through the injury to wildlife and aquatic life was wholly situated in state territorial (5th cir. 2009) (“parties cannot choose to be governed by maritime law when ocsla applies”). must then turn to the ocsla choice of law provision to ascertain whether state, hoping to confine ouellette to npdes permitting cases and the specific section 1333(a) “supersede[s] the normal choice-of-law rules that the forum case: 12-30012 document: 00512542591 page: 1 date filed: 02/24/2014 common law with an overarching regulatory framework to protect the nation’s as orleans parish puts it, “[i]t is not the adoption of state law as federal parishes also rely on savings clauses in federal statutes that regulate water shelf” that involved the exploration and production of minerals, and (2) the case “navigational” error and the mineral operation in question did nothing to cause v. illinois, 200 u.s. 496, 26 s. ct. 268 (1906). since l987, the issue has been among the thousands of cases transferred for consolidated management by the diversity purposes; or (b) whether the fact that the state, if the real party in interest, is a after examining the cwa as a whole, its purposes and its history, political subdivision thereof from imposing 107 s. ct. at 812 (such a clause “does not purport to preclude pre-emption of share proceeds of any statutory recovery with the state,” are nonetheless “citizens” for respect to oil pollution originating from the ocs, ouellette offers an analogous provision. (“wildlife statute”) for the pollution-related loss of aquatic life and wildlife. court, which denied the parishes’ motions to remand and then dismissed all of coastline.3 that introduces the court’s reasoning, ouellette speaks plainly: “we hold that with such a discharge; or applicable to the parishes’ claims provides: . . . to affect any state or local law not in conflict with with respect to— apply their individual laws to discharges arising on the shelf would foster the 1 continental shelf lands act (“ocsla”). we also affirm their dismissal as apply here, however, either because, as the district court stated, the disaster is no. 12-30012 the point source is located.’” arkansas, 503 u.s. at 100, 112 s. ct. at 1053 (citing case: 12-30012 document: 00512542591 page: 12 date filed: 02/24/2014 answer: the affected parties can sue for the generous remedies, including for loss against pollution that migrated into its environment from a neighboring state. hercules offshore, inc.,713 f.3d 208, 213 (5th cir. 2013). courts typically assess plans or in the worst case be deterred by the redundancy and lack of regulatory savings provisions the court considered, the parishes contend that the court’s in various groups according to their common issues. considering first the preserved by section 2718(a)(1)(a), which allows any state or political subdivision thereof to their localities) to apply their historic police power in these situations is preempting any state or political subdivision thereof citizenship is necessary to support the removal of an ocsla claim. the version the issue in milwaukee i contradicts the parishes’ position. 406 u.s. at 105-06, in any way the obligations of any owner or operator “cwa precludes a court from applying the law of an affected state against an or state entities to impose requirements relating to oil discharges, it does not in re: oil spill, 835 f. supp. 2d 175, 179-80 (e.d. la. 2011). states were deprived of rights and remedies in such cases, but only that they had between the cause of action and the ocs operation too remote to establish the parishes place the most emphasis on this savings clause from the § 1321(o)(2)). courts cannot, without any textual warrant, expand the operation jurisdiction was present because the alleged tort occurred upon navigable waters waters. to effectuate the full purposes of the regulations, ouellette held that the ocsla blowout, the result would be an implied repeal of cwa preemption. case: 12-30012 document: 00512542591 page: 18 date filed: 02/24/2014 of these provisions to be an either/or proposition. instead, each requires associated with oil pollution, even in the absence of the layering of multiple complaints. mcknight v. dresser, inc., 676 f.3d 426, 430 (5th cir. 2012). further, we need law to this ocsla-originated discharge, however, they must overcome federal governmental and private claims. just because the parishes are located in the historic police powers to apply their local law to interstate water pollution even waters within the affected state. simply, the provision saves remedies available golden has been criticized and is in any event factually distinguishable from this damages based on particular state laws testifies to the problem. moreover, just . . . or offshore facility to any person or agency under any more than they could agree to a contract choice of law provision mandating admiralty law ouellette v. int’l paper co., 776 f.2d 55, 55-56 (2d cir. 1985). the court . . . the district courts of the united states shall have jurisdiction of the appellees principally rely on ocsla’s broad jurisdictional grant in state.” the provision does not save a state’s laws where the discharge did not case: 12-30012 document: 00512542591 page: 4 date filed: 02/24/2014 be construed to affect, the authority of the united which extends explicitly to devices temporarily attached to the ocs (as eng’g, inc., 895 f.2d 1043, 1047 (5th cir. 1990). plt may suit cases under section 1331(a)(2), on june 18, 2012, the district court entered a consent decree in mdl no. 2179 b. application of general principles does not need to expressly invoke ocsla in order for it to apply.” barker v. (“civil penalty actions”), (f) (“liability for actual costs of removal”). these it is also an inapt basis for considering federal preemption, a subject that demands close on preemption grounds de novo.” o’hara v. gen. motors corp., 508 f.3d 753, the supreme court’s decision in ouellette is explicit: a ‘court must apply the law lex loci delicti theory. federal law covers the disaster in two ways. first, cases “arising out of, or in connection with” ocs operations, 43 u.s.c. § 1349, if the pollution originated outside the state. the supreme court’s discussion of edith h. jones, circuit judge: 24 15 behalf of the parishes and need not reach appellees’ contention that the opa’s proscription protect their ability to levy wildlife statute fines. each argument must be prefatory language here. if section 2718(c) were interpreted, as the parishes only because the parishes erroneously relied on it.5 the parishes’ inconsistent positions reveal a basic flaw. the question here (3) nothing in this section shall be construed in the gulf of mex., on april 20, 2010 (in re: oil spill), 747 f. supp. 2d 704, court responds to the plaintiffs’ allegations that the point source violated the is not, in short, a challenging case for asserting original federal jurisdiction, and 11 inc., 281 f.3d 487, 491-92 (5th cir. 2002); recar, 853 f.2d at 368-70. federal reinforcement of federal law. only to the cwa’s permitting provision (33 u.s.c. § 1342), not to the oil the parishes filed suit against bp exploration & production, inc.; bp products north conducting offshore drilling operations, and the disaster had a significant effect historic police powers to deter oil pollution in their waters and protect their 560 u.s. 242, 251, 130 s. ct. 2149, 2156 (2010), and, in the absence of ambiguity, remedial efforts for the macondo well blowout occurred under the auspices of case: 12-30012 document: 00512542591 page: 14 date filed: 02/24/2014 case: 12-30012 document: 00512542591 page: 2 date filed: 02/24/2014 district court dismissed the parishes’ claims against moex. (applying ocsla to a personal injury suit when a platform worker was injured (b) any removal activities in connection 8 section 1321(o) because it lacks the narrowing reference to state waters. by the blowout. federal law, the law of the point source, exclusively applies to 814 n. 18. a permit violation constitutes a “discharge” prohibited by section “emitting” does not change this analysis. “emit” means to send out or release. preempting, the authority of any state or seas act savings clause only preserves state courts’ jurisdiction to provide of cwa preemption despite its intent generally to broaden remedies against oil chaotic confrontations among states could erupt over conflicting standards suits that have the potential to undermine this regulatory structure. but all have appealed the refusal to remand. pre-empted an action based on the law of the affected state and that the only in sum, even if the parishes state and its political subdivisions to impose any additional liability, federal law. consistent with this conclusion, the supreme court in ouellette to an interstate pollution dispute arising under the clean air act. north and oil pollution (oil section 2718(a). relationship to other law courts may have jurisdiction to adjudicate a dispute under ocsla, but they navigable waters within a state, section 2718(c) authorizes the point source case: 12-30012 document: 00512542591 page: 23 date filed: 02/24/2014 lyle w. cayce 28 u.s.c. § 1441(b). dollars in property and environmental damage and spawning a litigation frenzy. section 2718(c), from their standpoint, preserves “all state penalty provisions relating to the discharge . . . of oil. 20 sec. 4202, pub. l. no. 101-380, 104 stat. 484, 532 (codified as 33 u.s.c. law by federal common law articulated in illinois v. city of milwaukee additional requirements; or 4 had not attempted to waive reliance on ocsla, the federal law articulated by alternatively, maritime law applies here because the deepwater disposal act explained that federal common law had, until 1971, governed “the use and 9 delegating to states the authority to issue npdes effluent discharge permits to (e.d. la. nov. 14, 2011). finally, when considering the local government 2012. the parishes’ claims commenced prior to that date. the language of section 1441(b) to the discharge of oil or hazardous substance into any the parishes’ claims is affirmed. contend that there is a situs requirement for ocsla jurisdiction under the case: 12-30012 document: 00512542591 page: 17 date filed: 02/24/2014 “the district court’s denial of the motion to remand, the propriety of (2) affect, or be construed or interpreted to eleven louisiana coastal parishes (the “parishes”) filed suits against bp elimination system (“npdes”) permit no. gmg290000. gulf restoration elsewhere. see alleman, 580 f.3d at 286 (ocsla applies to helicopter accident 6 “emitting” must take on an active cast. see third nat’l bank in nashville v. 23 of the state in which the point source is located.’” id. at 306 (citation omitted). reinforces our interpretation because, taken in context with the other gerunds, the “efficient exploitation of resources from the ocs,” nor do they “threaten the continental shelf and to all . . . devices permanently or temporarily attached to includes the federal statutes regulating water pollution and oil pollution, to see ouellette, 479 u.s. at 492-93, 107 s. ct. at 812 (rejecting application of two fifth circuit savings provision does not apply beyond the opa itself and two other laws. liability with respect to the discharge of oil . . . into any waters within such of course, the parishes cannot prevent the application of ocsla as a litigation choice or conflicting legal regimes are equally potent whether the point source is arguments. first, their attempt to intertwine the section 1349 jurisdictional navigable waters and the waters of the ocs, 33 u.s.c. 1321(b), allowing all (5th cir. 2009) (en banc); offshore co. v. robison, 266 f.2d 769, 776 wildlife statute. section 1321(o)(3), a catch-all provision, saves state laws not both the cwa and the opa contain provisions that save state law causes rely on. second, since ouellette considered only interstate water pollution, the 107 s. ct. at 812. the citizen suit savings clause was preceded by the qualifier, texas, 36 f.3d 1325, 1335 (5th cir. 1994). apart from omitting reference to supported by the expansive substantive reach of the ocsla.”). moreover, provided for the payment of civil penalties to the state of louisiana, conditioned on the state were the parishes’ lawsuits, some of which had been removed from state court. the crux of the parishes’ argument is this analogy: “if someone commits murder on no. 12-30012 permitting system by redundant or conflicting state legal regimes. terms limited to preemption caused by that section alone. see 479 u.s. at 493, jurisdiction notwithstanding that the cases alleged only penalties accruing under point sources within their borders while retaining primary federal responsibility amicus briefs in this appeal, and all five gulf coast states filed suits11 the point source state. according to the court, neither savings clause, carefully in the parishes’ appeal. we concur with the district court that the state law governed by federal law . . ..” gulf offshore co. v. mobil oil corp., 453 u.s. 473, law. second, they assert that both above-cited federal savings clauses expressly we are convinced that if affected states were allowed to impose applies to damages where drill barge flooded underwater tunnel and buildings waters within such state, or with respect to any 92 s. ct. at 1393-94. a federal common law of nuisance, not the competing laws network v. salazar, 683 f.3d 158, 164-66 (5th cir. 2012). under the within louisiana state waters, and louisiana has the right to exercise its or permit status. the fourth circuit confirmed ouellette’s reach by applying it clauses must be read with particularity and, as ouellette demonstrates, a preempted; existing federal authority not modified or affected subsequent order concerning the “c” pleading bundle cases, brought by the case: 12-30012 document: 00512542591 page: 19 date filed: 02/24/2014 any civil action of which the district courts have original jurisdiction founded 479 u.s. at 494, 107 s. ct. at 813. such suits could “effectively override both the were met here, removal jurisdiction existed. claims were removable pursuant to the jurisdictional provision of the outer and other defendants (“appellees”)1 goal in ouellette was to prevent disruption of the point-source effluent no. 12-30012 which we now turn. “objective territorial principle,” theories associated only with international law, apply to the affected states’ laws, evidence a clear congressional policy of deterrence and committed in louisiana waters, unlike the pollution that simply migrated into state waters. oscla section 1333(a)(1) and admiralty law constitute alternative, not federal jurisdiction, this court deems § 1349 to require only a “but-for” ocsla § 23(b)(1), states: over a general statutory provision is not easily adapted to this statutory scheme. because jurisdiction is invested in the district courts by this statute, “[a] plaintiff (a) preservation of state authorities; solid waste out-of-state source.” 479 u.s. at 494, 107 s. ct. at 813. the court stated: read, would stand for so broad a proposition. 479 u.s. at 492-93, caused pollution in louisiana, the parishes’ louisiana law claims would be no. 12-30012 squarely foreclosed. federal preemption of interstate waterpollution claims has of section 1441(b) in effect at the time of the district court’s ruling required no. 12-30012 dismiss the “b1” pleading bundle cases, filed for private or “non-governmental source to a place within the state rather than the mere passive migration or an injured party’s right to seek relief under “any statute or common law,” permit. see generally gulf restoration network, 683 f.3d at 165-66. the federal consistently maintained, ocsla situs is lacking, ocsla cannot apply.”) the 107 s. ct. at 809. the court described how the enactment of the federal cwa . . of the united states are extended to the subsoil and seabed of the outer 503 u.s. 91, 100, 112 s. ct. 1046, 1053-54 (1992). in these circumstances. alleman v. omni energy servs. corp., 580 f.3d 280, 283 n.2 of texas, mississippi, alabama, and florida. the cwa and the opa “savings” ii. choice of law a. general principles (a) the discharge of oil or other pollution this argument, however, cannot be squared with applicable fifth circuit indeed, its principles were affirmed by the court in arkansas v. oklahoma, removal activities related to such discharge. state waters meaningless. viewed in light of congress’ presumed awareness of no. 12-30012 injuries arising from activity on an ocsla situs even if the injury occurs for illegal discharges. 33 u.s.c. § 1321(b)(3),(6) (“administrative penalties”), (7) notably, ouellette also confronted and rejected the contention that two matter jurisdiction here are all interrelated questions of law subject to de novo 3 no. 12-30012 requirements, fines, and penalties. preemption is limited to situations in which david w. robertson & michael f. sturley, recent developments in admiralty & maritime law discharge prohibition (33 u.s.c. § 1321(o)). relatedly, the savings provisions pollution act (“opa”)), 33 u.s.c. § 2718(c), and preserve some state remedies. a worker on a stationary drilling platform in the ocs was injured); tenn. gas sheets are somewhat ambiguous about which parishes are included in the ruling and order, district court noted, in pari materia. 33 u.s.c. § 1342. on the other hand, they contend, because the cwa essentially superseded by any later supreme court decision nor, as we shall see, by statute. states or . . . any state or political subdivision thereof– mobile offshore drilling unit deepwater horizon is a vessel. demette v. (c) additional requirements and liabilities; penalties pursuant to ocsla, “[a]ll law applicable to the outer continental shelf is 7 signals congressional intent not to modify this portion of the cwa. see opa that ouellette found inapposite are different from the provisions the parishes 869, 120 s. ct. 1913, 1919 (2000). be read to include “any means by which oil enters state waters.” according to federal preemption issues here. (“opa”) in 1990. 33 u.s.c. §§ 2701-62. congress intended that the opa would disaster occurred while the vessel was engaged in the maritime activity of on river bank); theriot v. bay drilling corp., 783 f.2d 527, 538-39 the macondo well, which was being drilled by the mobile offshore drilling no. 12-30012 section 2718(c) saves from the opa’s diminution the ability of the united states (1) affect, or be construed or interpreted as 2010). that court concluded, “[t]here is no question that the law of the states (1) nothing in this section shall affect or modify 5 13 479 u.s. 481, 107 s. ct. 805 (1987). in ouellette, the court resolved conflicting wild quadrupeds, and other wildlife and aquatic life.” in sum, ouellette forms a controlling backdrop for resolving claims caused connection with activities above the ocs), and the opa, 33 u.s.c. § 2701(32)(c) 10 law.”8 collided with a platform, even though the accident was argued to be a a. cwa § 1321(o) discussion platform). ocsla allows the borrowing of state law as surrogate federal law i. removal jurisdiction tallentire, 477 u.s. 207, 224-25, 106 s. ct. 2485, 2495 (1986) (death on the high savings provisions of the cwa); geier v. am. honda motor co., 529 u.s. 861, rendering the companion provision superfluous, the catch-all must be similarly 12 held that a savings clause commencing with “nothing in this section” is by its law, including common law. for the eastern district of louisiana oil on the outer continental shelf (“ocs”) cannot be contested. state . . . .” the provision only saves state laws imposing liability or additional cwa. that the opa in fact amended cwa section 1321(o)(2) to add the phrase (5th cir. 1996); ep operating ltd. p’ship v. placid oil co., 26 f.3d 563, 569 impact on the overlay of state laws on a federally controlled point source. on the while they purport to abjure the application of federal law, however, the with ouellette as the controlling law, there are no state remedies to “save.” the navigable waters within the state of louisiana, admiralty law might apply to any civil in conflict with the section itself. to construe the catch-all harmoniously with rights to such minerals . . .. state law by other provisions of the act”); see also united states v. locke, b. section 2718(c) states shall be removeable without regard to the citizenship or residence of the cases and controversies arising out of, or in connection with . . . any implied repeals, however, are disfavored. crawford fitting co. v. j.t. gibbons, case: 12-30012 document: 00512542591 page: 24 date filed: 02/24/2014 webster’s third new international dictionary 742 (3d ed. 1986). the principle (milwaukee i), 406 u.s. 91, 92 s. ct. 1385 (1972). ouellette, 479 u.s. at 487, total recovery of federally-owned resources.” id. at 570. “mere connection” to section 1333(a)(2)(a) does not), clearly controls.10 although victims fell into the sea after the helicopter crashed into an offshore prohibits “discharges” of “oil or hazardous substances” into the nation’s the parishes’ pleadings expressly allege, inter alia, that appellees caused the provisions led the district court to declare the cwa’s savings provision more 17 operation conducted on the outer continental shelf which involves 33 u.s.c. § 1251-1376, and its implementing regulations comprehensively (o) obligation for damages unaffected, local authority not instead that a federal basis for original jurisdiction exist (ocsla) and that no pipeline, 87 f.3d at 155 (using “but-for” test to find jurisdiction when a boat 6 regulation, contains the provisions that prohibit oil discharges and set penalties state claims upon which relief could be granted and must be dismissed. statement is not limited to the specific provisions of the cwa at issue in horizon is a vessel. a strong argument exists for the proposition that the the opa’s provision is differently worded: the more difficult question in this appeal is whether the wildlife statute’s “arises out of, or in connection with” the operation. see, e.g., ep operating ltd. both the cwa, 33 u.s.c. § 1321(b)(1) (the cwa applies to oil discharges in the local government entity master complaint alleges breach of tort duties under no. 12-30012 case, as the injury there originated in the land-based operation of the helicopter. see, e.g., askew v. am. waterways operators, inc., 411 u.s. 325, 93 s. ct. 1590 (1973), does government's interest is no different from that of point-source states, which aim no. 12-30012 must extend to oil discharges, which are illegal under the same provision. with conditions for their citizens. allowing up to five states along the gulf coast to to wildlife made subject of the district attorneys’ suit occurred exclusively pollution was in conflict with the cwa. 479 u.s. at 494, 107 s. ct. at 812-13. the parishes urge that the opa, being specific with regard to oil pollution, america, inc.; bp america production company; and bp p.l.c. (collectively “bp”); transocean opa. the section states that “[n]othing in this act [opa] . . . shall in any way the application of competing state laws to interstate water pollution but has no drilling and exploration operation.” in re: oil spill, 747 f. supp. 2d at 708. this the district court referred to this provision by section number of the clean water act that is subject to the cwa, the court must apply the law of the state in which 479 u.s. at 493, 107 s. ct. at 812 (citation omitted). 1. does ouellette control? falcon drilling co., 280 f.3d 492, 498-99 (5th cir. 2002), overruled in part, on even assuming the parishes have some residual police power to apply local horizon, the vessel, bore a substantial relationship to maritime activity. subjects addressed in other titles of the opa or other acts). vessel). the but-for test does not include a purposive element as the parishes of certain duplicative damages preempts the wildlife statute claims. (5th cir. 1959). both briefs assert that, for this reason, the ocsla choice of law federal, or maritime law applies to a particular case. (choice of law will be precisely states, “nothing in this act, the act of march 3, 1851 (46 u.s.c. § 183 governed by maritime law or because the broader language of section 1333(a)(1), savings provision than it can bear. borrows state law as surrogate federal law to regulate certain ocsla activity.7 case: 12-30012 document: 00512542591 page: 21 date filed: 02/24/2014 located in a state or a federal enclave. remedies for fatalities in state waters).12 to recover carolina ex rel. cooper v. tenn. valley auth., 615 f.3d 291, 306-07 (4th cir. floating of oil into state waters. contrary to the parishes’ view, the word because both of those preconditions preempted by federal law. in interest properly joined and served as defendants is a citizen of the state in ouellette’s interpretation of preemption under the cwa has not been the court then applied the standards of conflict preemption, concluding that the nor does this construction deprive the savings provision of utility, as the technological decisions are required. lawsuits based on affected states’ common inquiry, their statutory wildlife claims arose out of or in connection with the oil the seabed . . . [for the purpose of resource exploitation].”) federal law governs any state or political subdivision thereof . . ..” statutory construction begins federal law,” and all cases “involving events occurring on the shelf [are] pursue relief based on the opa and the cwa or the law of the point-source.14 jurisdiction over it. 28 u.s.c. § 1441(a). the defendants bear the burden of (emphasis added). “transocean”); halliburton energy services, inc. and its related entities (collectively aquatic life and wildlife are preserved notwithstanding the application of federal limited. when a court considers a state-law claim concerning interstate water pollution 708-09 (e.d. la. 2010). next, considering various defendants’ motions to case: 12-30012 document: 00512542591 page: 13 date filed: 02/24/2014 prescribing reimbursement for cleanup costs and injuries to third parties. the regulations . . ..” 43 u.s.c. § 1333(a)(2)(a). the borrowing provision does not as with entities operating in point-source states, if entities engaged in requirements with respect to the “discharge” of oil “into any waters within such 43 u.s.c. § 1349(b)(1)(a). see in re: oil spill by the oil rig “deepwater horizon” section 2718(c) as plainly more specific both because it resides in the opa and of action, including penalty claims, under certain circumstances. the cwa any provision of law for damages to any publicly owned (2) nothing in this section shall be construed as complement, not compete with the cwa. that the opa was enacted more finally, we note that this interpretation does not diminish the incentives dock co., 513 u.s. 527 passim, 115 s. ct. 1043 passim (1995) (maritime law not precedential because the case was unpublished; we reference golden here the point source is located.” 479 u.s. at 487, 107 s. ct. at 809. there is no finally, a construction of section 2718(c) that limits its effect to discharges which such action is brought. judicial panel on multidistrict litigation to the eastern district of louisiana this court’s “plt test,” which we have used to determine when state law may apply imposed on a single point source. in sum, 3 was developed under a plethora of federal regulations, including an npdes to eliminate water pollution. ouellette, 479 u.s. at 488-91, 107 s. ct. at 809-11. stewart, 253 u.s. 149, 162, 40 s. ct. 438, 441 (1920); offshore logistics, inc. v. caused the injury constituted an “operation” “conducted on the outer continental valdez, alaska oil spill catastrophe, congress passed the oil pollution act it preserves state penalty actions. we do not, however, perceive the applicability of any oil or hazardous substance . . .. the parishes do not concede, however, that, under the second half of the entity master complaint and certain other cases within pleading bundle “c,” the ocsla displaces state law. further, as the supreme court has ruled, penalties, furnishes a comprehensive remedial regime for affected states’ exact language of section 2718(c) differs critically from the cwa’s section 1321(o)(1) expressly saves damage claims, not penalties under the nothing in this act . . . shall in any way affect, or ltd.; transocean offshore; transocean deepwater; and transocean holdings (collectively (5th cir. 1999) (applying the “but-for” test and finding § 1349 jurisdiction where to rely on the common body of federal law to do so. the claim by the states (and specific than those in the opa. the parishes, in contrast, characterize handling oil spill responses, allocating responsibility among participants and 4 traditional police power . . . by pursuing penalty claims under louisiana state 2. effect of savings clauses 9 states’ ability to apply local law to out-of-state point sources of alleged water 479 u.s. at 495, 107 s. ct. at 813. the efficiency and predictability of the permit textual analysis of case law and statutes. clarity from even pursuing their ocs plans. the reasons for avoiding redundant the statute, however, “discharge” “includes, but is not limited to, any spilling, the macondo well operations pursuant to national pollutant discharge offshore 2007 llc and moex usa corp. (collectively “moex”); mitsui oil exploration co., the language chosen by congress, and the omission here is telling. thus, while occur “within” the state. the parishes contend that the term “discharge” should 14 production operation. following the migration of contaminants from the well, leaking, pumping, pouring, emitting, emptying or dumping . . ..” 33 u.s.c. analysis of federal law thus inevitably precedes the parishes’ simplistic 18 plaintiff means that it cannot raise an eleventh amendment bar to removal. f i l e d subsoil and seabed of the outer continental shelf, or which involves plaquemines), and the court’s pertinent order was issued on october 6, 2010. the docket other grounds, by grand isle shipyard, inc. v. seacor marine, llc, 589 f.3d 778 state law applicable to an interstate discharge is ‘the law of the state in which standard of review mincing about the precise preemptive provisions of the federal cwa. later, the in the cwa or when it passed the opa. the judgment of the court dismissing would apply.” gulf offshore, 453 u.s. at 482 n.8, 101 s. ct. at 2877 n.8. permit system that sets clear standards, to tolerate common-law discharges may offer comments before permits are issued, but they have no other of noscitur a sociis, that words grouped in a list should be given related meaning, authorized the nuisance suit under the affected state’s law rather than that of but it is hard to square with section 1333(a)(1), where state law has no role. put in starkest terms, had the blowout occurred in texas state waters and the parishes’ claims as preempted by federal law. both decisions are challenged broad. see tenn. gas pipeline v. hous. cas. ins. co., 87 f.3d 150, 154 by oil within such state; or ouellette, 479 u.s. at 493, 487, 107 s. ct. at 812, 809) (emphasis added). this no. 12-30012 2 holding that “the clean water act taken ‘as a whole, its purposes and its history’ provisions of the cwa. the statutes, in other words, must be construed, as the settled by the supreme court’s decision in international paper co. v. ouellette, affect . . . the authority of the united states or any state [or locality] . . . to 21 defendant be a citizen of the forum state.6 because no claim based on federal law appeared on the face of the parishes’ well-pled deepwater horizon’s production activity on the high seas above the ocs. clause involved in this case is 33 u.s.c. § 1321(o), which states in pertinent part: 2 479 u.s. at 497, 107 s. ct. at 814. of section 2718(c) to, in effect, modify the scope of preemption under the cwa. developing the ocs were subjected to a multiplicity of state laws in addition to injuries without alluding to the blowout’s physical source, emissions from a well where emissions sources are located . . . applies in an interstate nuisance suit. older cwa apparatus for redressing the consequences of oil pollution. second, advocate. it is undeniable that “the oil and other contaminants would not have often ends there. two features of this prefatory language are notable. the the violation of any other state or federal law or regulation, kills or injures any fish, wild birds, nevertheless, for additional reasons, each savings clause is powerless to timely providing a release to moex. the state timely provided the release. accordingly, the affected states to impose their laws on the illegal activity creates not conflict, but result would be a serious interference with the achievement of the formulation conflicts with this court’s but-for test. see cases cited supra. third, no. 12-30012 the other subsections of section 1321(o) afford no benefit to the parishes. case: 12-30012 document: 00512542591 page: 10 date filed: 02/24/2014 19 before jones, barksdale and southwick, circuit judges. present purposes, however, the exact dichotomy is irrelevant as either regime only when state law is “not inconsistent with . . . other federal laws and 33 u.s.c. § 2718(c). first, they assert, the opa was enacted to supplement the this section. not support the parishes’ interpretation of section 1321 as preserving state law regulation of “halliburton”); m-i, llc; cameron international corp.; weatherford u.s., l.p.; anadarko clauses preserve but do not create state law claims. knickerbocker ice co. v. “[n]othing in this section,” while the states’ authority was saved for regulation the court predicated federal court jurisdiction on the parishes contend that ouellette is distinguishable. first, it applies within state waters would allegedly render the opa savings clause superfluous. case: 12-30012 document: 00512542591 page: 3 date filed: 02/24/2014 congress did not reject that interpretation explicitly or by negative implication murder under louisiana law.” it is a bad analogy because it assumes the murder was easily summarized. both briefs submitted by the parishes (authored on behalf claims, which the district court already deemed preempted, the cases failed to drilled in the ocs, or its human source, errors or omissions related to the misuse of interstate waters,” and the court reaffirmed the preemption of state addressed in the next section of this opinion.) any contrary implication in of course, if the in-state location of wildlife injury alone suffices to support 522 u.s. 156, 163, 118 s. ct. 523, 529 (1997). the pertinent provision, pollution (clean water act (“cwa”)), 33 u.s.c. § 1321(o),9 amount of, any fine or penalty rig deepwater horizon, experienced a catastrophic blowout and explosion with the language of the statute, hardt v. reliance standard life ins. co., 15 state law for pollution damage that occurred in state waters or along the evaluated at the time of removal. city of chicago v. int’l coll. of surgeons, suits filed originally in state court were removed to federal connection. see, e.g., hufnagel v. omega serv. indus., inc., 182 f.3d 340, 350 appellees’ responsibility, or respective shares of responsibility, for wildlife modifying “pollution by oil.” this does not wash grammatically; the geographic limitation waters and on land. the statutory wildlife claims, they assert, have no effect on among its reasons, the court noted that factors such as the impact of of each affected jurisdiction, was applied to interstate water pollution cases from provisions of the cwa, which preserved a state’s right to regulate its waters and we reject the assertion in alabama’s amicus brief that “effects jurisdiction” or the added). further, “[w]e review the district court’s grant of summary judgment test. 12 system would be undermined, to the disadvantage of private regulated entities. to begin, the canon of construction that mandates application of a specific the argument is also briefly made that the parishes’ wildlife statute claims are remand motions filed by three of these parishes, the court upheld its removal case: 12-30012 document: 00512542591 page: 20 date filed: 02/24/2014 the supreme court’s subsequent interpretation of oullette substantially contrary, the federal responsibility for the ocs is clear. the macondo well site petroleum corporation co. and anadarko e & p company lp (collectively “anadarko”); moex 7 “save” the parishes’ claims under the wildlife statute. in general, the savings from imposing any requirement or liability with respect at least three parishes filed motions to remand (st. bernard, terrebonne, conclusion the affected state is not the point source jurisdiction; affected states may still controls over the more general requirements of the cwa, which applies to both entered into the state of louisiana’s territorial waters ‘but for’ [appellees’] 406 u.s. at 107, 92 s. ct. at 1395, congress could and did supplant federal legal chaos described by ouellette. that three gulf coast states submitted 16 for compliance with the cwa or the opa or the point source states’ additional involved in the deepwater horizon oil 1321(b). 33 u.s.c. § 1321(a)(definition of “discharge”), (b)(3). the court’s logic waters within the state, however, there is no indication in section 2718(c) or the 13 or privately owned property resulting from a discharge 730. the opa prescribes a supplemental, comprehensive federal plan for louisiana’s exercise of its police power, why resort to federal savings clauses? in re: deepwater horizon it would be extraordinary for congress, after devising an elaborate because a rope broke and caused him to fall to the deck of an adjacent transport no. 12-30012 first explain further the pertinent background law. in the united states court of appeals between the united states and moex defendants. among other things, the consent decree to the united states as well as the states, rendering a geographic limitation to no. 12-30012 no. 12-30012 impose additional liability or requirements with respect to “the discharge of oil or other (§ 311), rather than by the u.s.c. number (§ 1321). at the national level & in the fifth & eleventh circuits, 33 tul. mar. l.j. 381, 464 (2009). illegal oil and hazardous substance discharges into navigable waters. third, the 33 u.s.c. § 2718(a), (c) (emphasis added). held that state law was preempted by maritime law. id. at 953-55. in a an early period. 406 u.s. at 106-07, 92 s. ct. at 1394-95. this is not to say the law or the facts before us. even though one can hypothesize a “mere connection” review.” oviedo v. hallbauer, 655 f.3d 419, 422 (5th cir. 2011) (emphasis it is also possible to understand why section 2718(c) omits a reference to stricter controls than the federal government. complex policy, scientific, and the laws of florida, alabama, mississippi, louisiana, and texas. interpretation within a statutory framework in which the opa was designed to remove a case from state court if the federal court would have had original case: 12-30012 document: 00512542591 page: 8 date filed: 02/24/2014 appellees’ reliance on 28 u.s.c. § 1331 “arising under” jurisdiction is unpersuasive 395 u.s. 352, 361, 89 s. ct. 1835, 1840 (1969); texaco exploration & prod., inc. second, the parishes nothing in this act . . . shall– ltd. (“moeco”). federal law. see in re: oil spill, mdl no. 2179, 2011 wl 5520295, at *3, 8 impac ltd., inc., 432 u.s. 312, 322-23, 97 s. ct. 2307, 2313-14 (1977).13 in april 2010 and caused hydrocarbon, mineral, and other contaminant pollution undeterred by this reasoning, the parishes raise additional but flawed all along the shores and estuaries of the gulf coast states, inflicting billions of the claims are preempted by the cwa as interpreted in ouellette, and that no. 12-30012 (1) to impose additional liability or penalties can be applied against the appellees. the parishes’ arguments are only of their own waters. id. in re: oil spill, 808 f. supp. 2d 943, 951 (e.d. la. 2011). the district court also “or with respect to any removal activities related to such discharge” without also decision has no bearing on discharges from the ocs. we find these distinctions (5th cir. 1994) (“[a] broad reading of the jurisdictional grant of section 1349 is provisions and the issues they raise are distinct. see, e.g., dahlen v. gulf crews, 10 case: 12-30012 document: 00512542591 page: 22 date filed: 02/24/2014 the accident); recar v. cng producing co., 853 f.2d 367, 369 (5th cir. 1988) preemption under the cwa. as the supreme court predicted in milwaukee i, retribution.15 compliance may vary widely among sources. point source states may require 480-81, 101 s. ct. 2870, 2876 (1981); see 43 u.s.c. § 1333(a)(1) (“the . . . laws . govern oil exploration and development on the ocs, including bp’s conduct of federal regulations, they could be forced to adopt entirely different operational undermines any cramped reading of the case. the court reiterated ouellette’s district court held, inter alia, that because the parishes only asserted state law “build[] upon section 311 of the clean water act [§ 1321] to create a single case: 12-30012 document: 00512542591 page: 9 date filed: 02/24/2014 establishing the basis for removal, and operative facts and pleadings are terms of its npdes permit by noting the availability of a citizen suit under the criminal liability, and damage exposure that may be imposed on entities oil pollution that originated outside state waters. the spill in that case occurred adjacent to most closely on point in the cwa is section 1321(o)(2), which provides savings clause does not disrupt the ordinary operation of conflict preemption. p’ship, 26 f.3d at 568-69. as the district court noted, the fact that the oil spill on maritime commerce. cf. jerome b. grubart, inc. v. great lakes dredge & amending the immediately preceding phrase “into any waters within such state” discharges on a waterway, the types of effluents, and the schedule for because the cwa was inadequate to provide complete remedies for the section 1441(b) was amended effective only for actions commenced after january 6, section 1321(o)(2), which is limited to discharges within state waters, and avoid contend, to “supersede” the cwa and ouellette by allowing all affected states to to encourage economic development while preserving optimal environmental golden v. omni energy servs. corp., 242 fed. app’x 965, 967 (5th cir. 2007), is occurred because of the appellees’ “operations” in exploring for and producing united states court of appeals no. 12-30012 unpersuasive. the court’s opinion, however, resists such limitation. in the paragraph parties. any other such action shall be removeable only if none of the parties impose . . . any fine or penalty . . .” relating to an oil discharge. of wildlife, that the opa offers. opa, 33 u.s.c. § 2702(b)(2)(d). case: 12-30012 document: 00512542591 page: 16 date filed: 02/24/2014 is not whether federal law plays a role in remediating the effects of the macondo therefore removal jurisdiction, under ocsla. provisions cannot apply to their claims. (“since, as the district attorneys have laws concerning oil pollution. the federal laws’ extravagant penalties, fines, § 1321(a)(2). these gerunds connote active conduct or movement from a point to pursue state law penalties against the appellees for pollution that migrated of orleans parish, et al. and new iberia parish, et al.) acknowledge that the 22

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