Plaquemines Parish v. BP Am. Prod. Co.

103 F.4th 324

PLAQUEMINES PARISH, Plaintiff—Appellee,Louisiana State; Louisiana Department of Natural Resources, Office of Coastal Management,Thomas F. Harris, Secretary, Intervenors—Appellees, v. BP AMERICA PRODUCTION COMPANY, As Successor in Interest to Amoco Production Company;

Burlington Resources Oil & Gas Company, L.P.; Chevron USA, Incorporated,

As Successor in Interest to Chevron Oil Company, the California Company and Gulf Oil Corporation;

Exxon Mobil Corporation, As Successor in Interest to The Superior Oil Company; Shell Offshore,

Incorporated; Shell Oil Company; Chevron U.S.A. Holdings, Incorporated, As Successor in

Interest to Texaco E&P Incorporated. and Texaco Incorporated; Texas Company; Chevron Pipe Line Company,

As Successor in Interest to Gulf Refining Company, Defendants—Appellants,

Parish of Cameron, Plaintiff—Appellee,State of Louisiana, ex rel, on behalf of Jeff Landry; State of Louisiana,on behalf of Louisiana Department of Natural Resources, on behalf of Office of Coastal Management,on behalf of Thomas F. Harris, Intervenor Plaintiffs—Appellees, v. BP America Production Company; Chevron U.S.A. Incorporated, own capacity

& as successor in interest, on behalf of California Company;

Shell Oil Company; SWEPI, L.P., Defendants—Appellants.

No. 23-30294

CONSOLIDATED WITH No. 23-30422

United States Court of Appeals, Fifth Circuit

FILED May 29, 2024

Appeals from the United States District Courts for the Eastern and Western Districts of Louisiana, USDC Nos. 2:18-CV-5256, 2:18-CV-688, Jay C. Zainey, Robert R. Summerhays, U.S. District Judges

Victor L. Marcello, Esq., Donald T. Carmouche, Talbot, Carmouche & Marcello, Baton Rouge, LA, Andre' Collins Gaudin, Esq., Burglass Tankersley Gaudin & Phayer, Metairie, LA, for Plaintiff-Appellee Plaquemines Parish of No. 23-30294.

Donald Wayne Price, Special Counsel, Government] Department of Natural Resources for the State of Louisiana, Baton Rouge, LA, Ryan Michael Seidemann, Louisiana Department of Justice, Baton Rouge, LA, for Intervenors-Appellees of No. 23-30294.

George Arceneaux, III, Esq., Liskow & Lewis, Lafayette, LA, Jennifer Kwapisz, Nancy Gordon Milburn, Arnold & Porter Kaye Scholer, L.L.P., New York, NY, for Defendant-Appellant BP America Production Company of No. 23-30294.

Deborah DeRoche Kuchler, Kuchler Polk Weiner, L.L.C., New Orleans, LA, for Defendant-Appellant Burlington Resources Oil & Gas Company, L.P of No. 23-30294.

Paul D. Clement, Joseph DeMott, C. Harker Rhodes, IV, Clement & Murphy, P.L.L.C., Alexandria, VA, Peter D. Keisler, Esq., Jennifer Jo Clark, Eric Julian Mayer, Alexandra Giselle White, Susman Godfrey, L.L.P., Houston, TX, for Defendant-Appellant Chevron USA, Incorporated of Nos. 23-30294, 23-30422.

Robert Beattie McNeal, Esq., Liskow & Lewis, A.P.L.C., New Orleans, LA, for Defendant-Appellant Exxon Mobil Corporation of No. 23-30294.

Russell Keith Jarrett, Esq., Kelly Brechtel Becker, Esq., Liskow & Lewis, A.P.L.C., New Orleans, LA, David Charles Frederick, Daniel Severson, Kellogg, Hansen, Todd, Figel & Frederick, P.L.L.C., Washington, DC, for Defendants-Appellants Shell Offshore, Incorporated, Shell Oil Company of No. 23-30294, SWEPI, L.P. of 23-30422.

Peter D. Keisler, Esq., Jennifer Jo Clark, Eric Julian Mayer, Alexandra Giselle White, Susman Godfrey, L.L.P., Houston, TX, for Defendants-Appellants Chevron U.S.A. Holdings, Incorporated, Chevron Pipe Line Company of No. 23-30294.

Peter D. Keisler, Esq., Jennifer Jo Clark, Alexandra Giselle White, Susman Godfrey, L.L.P., Houston, TX, for Defendant-Appellant Texas Company of No. 23-30294.

Andrew Kim, William M. Jay, Goodwin Procter, L.L.P., Washington, DC, for Amici Curiae Chamber of Commerce for the United States of America, National Association of Manufacturers of No. 23-30294.

William Christopher Pooser, Jason T. Morgan, Stoel Rives, L.L.P., Seattle, WA, for Amici Curiae American Petroleum Institute, American Fuel and Petrochemical Manufacturers of No. 23-30294.

Victor L. Marcello, Esq., Talbot, Carmouche & Marcello, Baton Rouge, LA, for Plaintiff-Appellee Parish of Cameron of 23-30422.

Ryan Michael Seidemann, Louisiana Department of Justice, Baton Rouge, LA, for Intervenor Plaintiff-Appellee State of Louisiana of 23-30422.

Donald Wayne Price, Special Counsel, Department of Natural Resources for the State of Louisiana, Baton Rouge, LA, James B. Canfield, Executive Counsel, Department of Revenue & Taxation for Intervenor Plaintiff-Appellee State of Louisiana, Baton Rouge, LA, State of Louisiana of 23-30422.

George Arceneaux, III, Esq., Liskow & Lewis, Lafayette, LA, Jennifer Kwapisz, Nancy Gordon Milburn, Arnold & Porter Kaye Scholer, L.L.P., New York, NY, for Defendant-Appellant BP America Production Company.

Andrew Kim, William M. Jay, Goodwin Procter, L.L.P., Washington, DC, Andrew R. Varcoe, U.S. Chamber Litigation Center, Washington, DC, for Amicus Curiae Chamber of Commerce for the United States of America of 23-30422.

Andrew Kim, William M. Jay, Goodwin Procter, L.L.P., Washington, DC, Michael A. Tilghman, II, National Association of Manufacturers, Washington, DC, for Amicus Curiae National Association of Manufacturers of 23-30422.

William Christopher Pooser, Stoel Rives, L.L.P., Boise, ID, Jason T. Morgan, Stoel Rives, L.L.P., Seattle, WA, for Amici Curiae American Petroleum Institute, American Fuel and Petrochemical Manufacturers of 23-30422.

Before Davis, Engelhardt, and Oldham, Circuit Judges.

W. Eugene Davis, Circuit Judge:

This consolidated appeal concerns whether lawsuits commenced in state court by Louisiana parishes against various oil and gas companies for their alleged state-law violations give rise to federal jurisdiction. The companies removed these cases to federal court pursuant to the federal officer removal statute, 28 U.S.C. § 1442(a)(1), asserting that they satisfy each of the statute's requirements in light of their refining contracts with the government during World War II. The district courts granted the parishes' motions to remand these cases to state court after concluding that the oil companies did not meet their burden of establishing federal jurisdiction. The oil companies now appeal those decisions. Because we conclude these cases were not properly removed under the federal officer removal statute, we AFFIRM the district courts' orders remanding these cases to state court.

I.

This litigation has a long procedural history, including two prior appeals to this Court. It originated in 2013 when several Louisiana coastal parishes, joined by the Louisiana Attorney General and the Louisiana Secretary of Natural Resources, filed forty-two lawsuits against various oil and gas companies in state court alleging violations of Louisiana's State and Local Coastal Resources Management Act of 1978 ("SLCRMA").

SLCRMA took effect in 1980, and requires parties engaging in certain "uses" within Louisiana's "coastal zone" to comply with a permitting scheme.¹ It defines "use" to include any "activity within the coastal zone which has a direct and significant impact on coastal waters," and defines "Coastal Zone" to include "the coastal waters and adjacent shorelands," defined by Louisiana law, that "are strongly influenced by each other."² As relevant here, SLCRMA creates a cause of action against parties that violate or fail to obtain the requisite coastal use permit.³ However, there are several exemptions to SLCRMA's permitting requirement, including a "grandfather clause," which states that: "[i]ndividual specific uses legally commenced or established prior to the effective date of the coastal use permit program shall not require a coastal use permit."⁴

In each lawsuit, the coastal parishes sued various oil companies for their oil and gas exploration, production, and transportation operations in a different "Operational Area"⁵ of the Louisiana coast. The parishes' "materially identical" petitions "allege that the companies violated SLCRMA by failing to obtain necessary coastal use permits or by violating the terms of the permits they did obtain."⁶ Additionally, the parishes contend that the companies' pre-SLCRMA activities were not "lawfully commenced" and therefore do not fall within the grandfather clause exemption which would excuse such noncompliance.⁷ The parishes seek damages under SLCRMA, including for "restoration and remediation costs; actual restoration of disturbed areas to their original condition; costs necessary to clear, revegetate, detoxify and otherwise restore the affected portions of the . . . Coastal Zone as near as practicable to its original condition."

The oil companies have attempted to remove these cases to federal court on three separate occasions.⁸ First, in 2013, the companies removed these cases on the grounds of federal question, general maritime law, the Outer Continental Shelf Lands Act, and diversity jurisdiction. The federal district courts rejected all four jurisdictional bases and remanded the cases to state court.⁹

After returning to state court, the oil companies filed motions seeking clarification about the specific state law violations underlying the parishes' lawsuits.¹⁰ In response, in April of 2018, Plaquemines Parish issued an expert report—the Rozel report—in one of the pending cases, and certified that the report "represented the position of the Louisiana Department of Natural Resources in all forty-two cases."¹¹ The Rozel report "triggered" the potential application of SLCRMA's grandfather clause by placing at issue the companies' pre-SLCRMA conduct, including conduct that occurred during World War II.¹² Specifically, the Rozel report opined that the oil companies' pre-1980 production activities were not "lawfully commenced or established" for purposes of the grandfather clause because such activities did not begin in "good faith" by departing from prudent industry practices.¹³

According to the oil companies, the Rozel report "unveiled a new legal theory," which they relied on to remove these cases to the Eastern and Western Districts...