31 F.4th 178 (4th Cir. 2022)
In any case, Defendants suggest that the foreign-affairs doctrine preempts Baltimore's Complaint. "Under the foreign[-]affairs doctrine, state laws that intrude on this exclusively federal power are [constitutionally] preempted." Movsesian v. Victoria Versicherung AG, 670 F.3d 1067, 1071 (9th Cir. 2012). This is so because the power to conduct international affairs is solely vested with the federal government, not the States. See United States v. Pink, 315 U.S. 203, 233-34, 62 S.Ct. 552, 86 L.Ed. 796 (1942); see also Hines v. Davidowitz, 312 U.S. 52, 63, 61 S.Ct. 399, 85 L.Ed. 581 (1941) ("The Federal Government ... is entrusted with full and exclusive responsibility for the conduct of affairs with foreign sovereignties."). The foreign-affairs doctrine may constitutionally preempt state laws through conflict preemption or field preemption. Movsesian, 670 F.3d at 1071-72. For a state law to give way under conflict preemption, there must be a "sufficiently clear conflict" between the state law and an express foreign policy. See Am. Ins. Ass'n v. Garamendi, 539 U.S. 396, 420-24, 123 S.Ct. 2374, 156 L.Ed.2d 376 (2003); see also Gingery v. City of Glendale, 831 F.3d 1222, 1228-29 (9th Cir. 2016). Field preemption applies "in the absence of a treaty" and when a state law or policy "disturb[s] foreign relations" or if a State attempts to "establish its own foreign policy." Zschernig v. Miller, 389 U.S. 429, 441, 88 S.Ct. 664, 19 L.Ed.2d 683 (1968). Field preemption asks whether the state law "has more than `some incidental or indirect effect in foreign countries[ ]'...." Id. at 434, 88 S.Ct. 664.
Taking up conflict preemption, Defendants do not identify any express foreign policy from the federal government that conflicts with Baltimore's state-law claims. See Defs.' Opening Br. 38-39. At best, Defendants reference the Kyoto Protocol, signed in 1997 by President Clinton but never ratified by the United States Senate. Nathan Richardson, The Rise and Fall of Clean Air Act Climate Policy, 10 Mich. J. Env't & Admin. L. 69, 75 (2020); see also Massachusetts v. Env't Prot. Agency, 549 U.S. 497, 509, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007). At worst, they point us to a slew of remarks from Presidents Ford, Carter, Reagan, H.W. Bush, Clinton, W. Bush, Obama, and Trump. See Defs.' Opening Br. 39 (citing J.A. 265-69). In and of themselves, those remarks are not explicit foreign policies that may create a conflict. See Garamendi, 539 U.S. at 401, 413-24, 123 S.Ct. 2374 (considering the preemption of California's Holocaust Victim Insurance Relief Act of 1999, Cal. Ins. Code §§ 13800-07, when the Executive Branch signed agreements with foreign nations). And those statements do not establish that Maryland common law, or even the common law of States generally, is an obstacle to the federal government's dealings with foreign nations. See Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 366-68, 383-85, 120 S.Ct. 2288, 147 L.Ed.2d 352 (2000) (noting and relying on the Executive Branch's direct remarks about a Massachusetts statute barring the purchase of goods from those "doing business with Burma"). Once again, in so much as Defendants fail to identify a conflict, the Court cannot find that they have carried their removal burden. Prince, 848 F.3d at 176.
As to field preemption, we do not believe that Baltimore's claims are precluded on this basis either. Defendants have not articulated how Baltimore's common law claims serve as Baltimore's assertion of its own foreign policy. See Defs.' Opening Br. 38-39. In Zschernig, an Oregon statute permitted escheat1 when "nonresident alien[s] claim[ed] real or personal property" and three conditions were satisfied. 389 U.S. at 430-31, 88 S.Ct. 664. The Court held that the Oregon statute unconstitutionally intruded upon the field of foreign affairs, reasoning that the statute required state courts to delve into the "actual administration of foreign law, ... credibility of diplomatic statements, and... speculation [concerning] the fact that some received delivery of funds should not preclude wonderment as to how many may have been denied the right to receive'...." Id. at 435, 88 S.Ct. 664 (citations omitted). The Court went on to examine how Oregon courts were addressing foreign relations, holding that their statute was impacting foreign relations "in a persistent and subtle way." Id. at 435-41, 88 S.Ct. 664.
Despite bearing the removal burden, Defendants have not provided us with even one decision from Maryland courts showing how any of Baltimore's state-law claims entail foreign relations. Even more importantly for field preemption, Defendants have not at all explained how common law claims under state law meaningfully "disturb foreign relations," nor have they delineated how Baltimore's claims are an attempt to "establish its own foreign policy." Id. at 441, 88 S.Ct. 664. Baltimore's Complaint does not contain any allegations that develop foreign policies with other countries, and nor does it undermine the federal government in the international arena. At best, it involves an intersection between Maryland law and private, international companies. See Md. Code Ann., Corps. & Ass'ns § 7-105 ("By doing intrastate, interstate, or foreign business in this State, a foreign corporation assents to the laws of this State." (emphasis added)). Thus, we find no persuasive reason to apply field preemption.
At bottom, we decline to apply the foreign-affairs doctrine as either a constitutional bar to Baltimore's Complaint or a valid means for removal under Grable jurisdiction. Our conclusion neatly aligns with our sister circuits' approach of applying the foreign-affairs doctrine to disputes only with direct impacts on foreign relations. Cf. City of Glendale, 831 F.3d at 1229-31 (holding the foreign-affairs doctrine does not preclude a local government's expression, in the form of a monument, about foreign affairs); Movsesian, 670 F.3d at 1070, 1075-77 (concluding the foreign-affairs doctrine applied when a state statute permitted state courts to entertain insurance claims of "Armenian Genocide victim[s]" against insurers covering persons and property in Europe and Asia between 1875 and 1923); Deutsch v. Turner Corp., 324 F.3d 692, 703-04, 708-16 (9th Cir. 2003) (applying the foreign-affairs doctrine to a state statute creating a cause of action against corporations for employing slave labor during the Second World War because it intruded upon the federal government's power to resolve war claims for committed wrongs).
Next is Defendants' argument that Baltimore's Complaint is completely preempted by the CAA. This argument fails as well.
As we have already stated, complete preemption requires "the congressional intent that state law be entirely displaced ... be clear in the text of the statute." Lontz, 413 F.3d at 441 (citing Metro. Life, 481 U.S. at 65-66, 107 S.Ct. 1542). The federal statute must show "Congress intended it to `provide the exclusive cause of action' for claims of overwhelming national interest." Id. (quoting Beneficial Nat'l Bank, 539 U.S. at 9, 11, 123 S.Ct. 2058). To date, the Supreme Court has only applied complete preemption to three federal statutes: (1) §§ 85 and 86 of the National Bank Act of 1863; (2) § 502 of the Employee Retirement Income Security Act of 1974 (ERISA); and (3) § 301 of the Labor Management Relations Act of 1947 (LMRA). See N.J. Carpenters & the Trs. Thereof v. Tishman Constr. Corp. of N.J., 760 F.3d 297, 302 (3d Cir. 2014) (collecting cases); see also Lontz, 413 F.3d at 441 (same). We have extended complete preemption to certain state-law claims implicating § 301(a) of the Copyright Act and § 10501(b) of the Interstate Commerce Termination Act. See Rosciszewski v. Arete Assocs., Inc., 1 F.3d 225, 230-33 (4th Cir. 1993) (section 301(a) of the Copyright Act); Skidmore, 1 F.4th at 212-17 (section 10501(b) of the Interstate Commerce Termination Act).
We turn to the history and text of the CAA as required by our complete-preemption inquiry. The CAA was enacted in 1963, and Congress declared that its express purpose was to "protect the Nation's air resources so as to promote the public health and welfare and the productive capacity of its population...." Clean Air Act, Pub. L. No. 88-206, § 1, 77 Stat. 392, 393 (1963) (codified as amended at 42 U.S.C. § 7401(b)(1)). In 1990, Congress further recognized that "air pollution prevention (that is, the reduction or elimination, through any measures, of the amount of pollutants produced or created at the source) and air pollution control at its source is the primary responsibility of the States and local governments. ..."2 Clean Air Act Amendments, Pub. L. No. 101-549, § 108, 104 Stat. 2399, 2468 (1990) (emphasis added) (codified at 42 U.S.C. § 7401(a)(3)). The CAA regulates air pollution from stationary sources, emission standards for moving sources, noise pollution, acid raid, and stratospheric ozone protection. 42 U.S.C. §§ 7401-7515, 7521-7590, 7641-7642, 7651-7651o, 7671-7671q. It also provides a means for citizen suits and outlines a permitting process for emission standards. Id. §§ 7604, 7661-7661f. The Supreme Court has suggested that the CAA has force under ordinary preemption principles and not under complete preemption principles. See Am. Elec. Power Co., 564 U.S. at 429, 131 S.Ct. 2527 ("In light of our holding that the Clean Air Act displaces federal common law, the availability vel non of a state law depends, inter alia, on the preemptive effect of the federal Act." (citing Int'l Paper Co. v. Ouellette, 479 U.S. 481, 489, 491, 497, 107 S.Ct. 805, 93 L.Ed.2d 883 (1987))).
First, primarily relying on § 7607(b)(1), Defendants correctly point out that the CAA allows parties to challenge various actions, regulations, and standards promulgated by the Administrator of the Environmental Protection Agency (EPA). However, § 7607(b)(1) has nothing to do with lawsuits against private parties as it explicitly authorizes a means for judicial review of the EPA's final actions and rulemaking. Baltimore's Complaint does not ask a court to review the legality of any of the EPA's decisions or regulations.3 And as we have explained above and more fully below, its state-law claims do not involve the regulation of emissions. Baltimore's causes of action simply do not "duplicate[ ], supplement[ ], or supplant[ ]" § 7607(b)(1)'s procedures for obtaining judicial review of actions by the EPA. See Aetna Health, 542 U.S. at 209, 124 S.Ct. 2488. Rather than establishing an exclusive federal scheme through § 7607(b)(1), Congress intended § 7401(a)(3) to vest state and local governments with the "primary responsibility" of controlling and preventing air pollution. State and local governments could not have any "primary responsibility" over air pollution if their laws were completely preempted and replaced by a federal regime. § 7401(a)(3).
Second, "[t]he presence of a savings clause counsels against a finding that Congress intended to sweep aside all state claims in a particular area." Pinney, 402 F.3d at 450. The CAA contains two savings clauses that preserve state and local governments' legal right to impose standards and limitations on air pollution that are stricter than national requirements. See §§ 7416, 7604(e). One concerns citizen suits under the CAA and specifically counsels: "Nothing in this section shall restrict any right which any person ... may have under any statute or common law to seek enforcement of any emission standard or limitation or to seek any other relief [.]" § 7604(e) (emphases added). The second savings clause provides:
[N]othing in this chapter shall preclude or deny the right of any State or political subdivision thereof to adopt or enforce (1) any standard or limitation respecting emissions of air pollutants or (2) any requirement respecting control or abatement of air pollution; except that if an emission standard or limitation is in effect under an applicable implementation plan ..., such State or political subdivision may not adopt or enforce any emission standard or limitation which is less stringent than the standard or limitation under such plan or section.
§ 7416 (emphases added). Under §§ 7604(e) and 7416, except to the extent a state law falls below a federal requirement under a limitation plan, the plain language of the CAA's savings clauses evidence no congressional intent for the CAA to be the exclusive cause of action for air pollution claims. Section 7604(e) permits parties to resort to state statutes and state common law to enforce emission standards or "to seek any other relief." Section 7416 permits States and political subdivisions to "adopt or enforce ... any" standard, limitation, or requirement about air pollution that are more demanding than federal provisions, and this broad language encompasses state-law claims that may be used to rein in air pollution. See City of Oakland, 969 F.3d at 907-08 (holding that the CAA did not satisfy the requirements of complete preemption for state-law claims involving public nuisance after considering § 7416's impact). These sweeping clauses—both of which show respect for state law—fail to show how Congress clearly and manifestly intended to completely preempt the types of claims Baltimore presents here, tipping the scale against complete preemption. See Johnson, 781 F.3d at 703 (holding that a savings clause counseled against finding complete preemption of § 332 of the Communications Act); Her Majesty the Queen in Right of Ont. v. City of Detroit, 874 F.2d 332, 342-43 (6th Cir. 1989) (noting that § 7604(e) of the CAA "clearly indicates that Congress did not wish to abolish state control" and declining to apply complete preemption to a Michigan statute).
In the face of the CAA's savings clauses, Defendants posit that the CAA "authorizes states to impose additional restrictions only on in-state emissions[ ] and ... provide[s] remedies only for localized injuries stemming from in-state air pollution." Defs.' Opening Br. 50. But Defendants' argument continues to rest on a fundamental confusion of Baltimore's claims. None of Baltimore's claims concern emission standards, federal regulations about those standards, or pollution permits. Their Complaint is about Defendants' fossil-fuel products and extravagant misinformation campaign that contributed to its injuries. Indeed, since we are operating under the well-pleaded complaint rule, Aetna Health, 542 U.S. at 207, 124 S.Ct. 2488, we take Baltimore at its word when it claims that it "does not seek to impose liability on Defendants for their direct emissions of greenhouse gases and does not seek to restrain Defendants from engaging in their business operations." J.A. 47.
In sum, there is simply nothing within the "text of the statute" suggesting that state-law claims are completely displaced by the CAA. See Lontz, 413 F.3d at 441. And more specifically, we do not see anything within the CAA requiring the complete preemption of state-law claims that seek to impose liability upon fossil-fuel products that are allegedly harmful to the public at large. We join our sister circuits and reject this complete-preemption argument from Defendants, especially when Defendants do not identify any statutory sections that indicate the complete preemption of Baltimore's state-law claims. See Bd. of Cnty. Comm'rs of Boulder Cnty., 25 F.4th at 1263-65 (noting that the CAA "does not provide an exclusive cause of action for suits against private polluters, nor does it completely displace all state law in that area" and rejecting Defendants' argument); City of Oakland, 969 F.3d at 907-08 (holding that the CAA did not satisfy the requirements of complete preemption for state-law claims involving public nuisance). Thus, we affirm the district court's rejection of complete preemption under the CAA and find no federal-question jurisdiction on this basis.
Relying upon a federal-enclaves theory, Defendants assert that federal jurisdiction is appropriate because a "substantial portion" of their operations occurred on federal land, including the Elk Hills Naval Petroleum Reserve in Kern County, California, and multiple naval installations. Defs.' Opening Br. 46-47. Defendants are correct that naval installations are generally considered federal enclaves. See Allison v. Boeing Laser Tech. Servs., 689 F.3d 1234, 1235 (10th Cir. 2012) (observing that federal enclaves include "military bases, federal facilities, and even some national forests and parks"). However, federal-question jurisdiction is not conferred merely because some of Defendants' activities occurred on military installations. We decline to endorse Defendants' overreaching approach to federal-question jurisdiction premised on federal enclaves.
Congress possesses the power to "exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, ... become the Seat of the Government of the United States, and ... exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings[.]" U.S. Const. art. I, § 8, cl. 17. The federal government thus possesses "sole jurisdiction" over its enclaves. Surplus Trading Co. v. Cook, 281 U.S. 647, 652, 50 S.Ct. 455, 74 L.Ed. 1091 (1930). Accordingly, "[f]ederal courts have federal question jurisdiction over tort claims that arise on `federal enclaves.'" Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1250 (9th Cir. 2006) (citations omitted); see also Akin v. Ashland Chem. Co., 156 F.3d 1030, 1034 (10th Cir. 1998) ("Personal injury actions which arise from incidents occurring in federal enclaves may be removed to federal district court as a part of federal question jurisdiction.").
When deciding if a federal enclave confers jurisdiction, this Court has considered whether the injury itself was sustained within the federal enclave. See Stokes v. Adair, 265 F.2d 662, 663, 665-66 (4th Cir. 1959). In Stokes, we were tasked with deciding whether a district court possessed federal-question jurisdiction over an automobile accident that caused a plaintiff to sustain injuries "on the United States Military Reservation of Fort Leavenworth in the State of Kansas...." Id. at 663. We held that the district court had federal-question jurisdiction because Kansas ceded Fort Leavenworth to the federal government, and we specifically noted that personal-injury actions occurring "on a federal reservation" were not precluded from trial in state courts. Id. at 665-66. Other federal courts have similarly reasoned that federal-question jurisdiction only lies over federal enclaves when personal injuries are sustained within an enclave's boundaries. See Akin, 156 F.3d at 1034-36 (holding that federal-question jurisdiction was not ascertainable from a complaint when it stated that a plaintiff's injuries were "sustained `while working at'" a federal enclave, but jurisdiction was conferred when an interrogatory eventually provided "sufficient notice" that the relevant conduct took place "wholly within the enclave"); Mater v. Holley, 200 F.2d 123, 123-25 (5th Cir. 1952) (holding there was federal-question jurisdiction when a claimant suffered personal injuries "within the boundaries" of Fort McPherson, Georgia, and Fort McPherson was ceded to the United States by Georgia).
On the Complaint's face, Baltimore specifically states that "`Baltimore' refers to Baltimore City's geographic area, and specifically to non-federal lands within its boundaries, unless otherwise stated." J.A. 43. Baltimore therefore excludes federal enclaves from its Complaint "unless otherwise stated." J.A. 43. As to where Baltimore's climate-change injuries have occurred, the Complaint emphasizes they have taken place within Baltimore's borders and not on a federal enclave. For instance, the Complaint maintains that climate change, resulting from Defendants' fossil-fuel products and marketing campaign, has damaged Baltimore's internal infrastructure, including its railways and roads, and increased the costs of maintaining, repairing, and replacing infrastructure within Baltimore. See J.A. 144-45. It also describes the adverse impacts that climate change will have on the health of Baltimore's citizens as opposed to those living on federal enclaves. See J.A. 146-47. None of these allegations suggest that Baltimore's injuries occurred or will occur on federal enclaves. All of Baltimore's harms are pleaded within the confines and boundaries of Baltimore City. See J.A. 139-48. So given Baltimore's alleged injuries have not occurred on a federal enclave, it seeks relief for harms sustained on non-federal land, which precludes the exercise of federal-question jurisdiction. See Bd. of Cnty. Comm'rs of Boulder Cnty., 25 F.4th at 1271-72 (rejecting Defendants' broad theory of federal enclaves and holding federal-question jurisdiction was an improper basis for removal when injuries on federal lands were expressly disclaimed).
Again, federal-question jurisdiction tied to federal enclaves "generally requires `that all pertinent events t[ake] place on a federal enclave.'" Id. at 1271 (quoting Rosseter v. Indus. Light & Magic, No. C 08-04545 WHA, 2009 WL 210452, at *1 (N.D. Cal. Jan. 27, 2009)). The district court reasonably concluded that "the claims appear to arise in Baltimore, where the City allegedly suffered and will suffer harm." BP P.L.C., 388 F. Supp. 3d at 566. We agree with the district court and affirm its firm rejection of jurisdiction based on this doctrine.
Continuing on their quest for federal jurisdiction, Defendants invoke the OCSLA's jurisdictional grant to reach federal court. They believe "[Baltimore]'s claims as alleged encompass all of Defendants `exploration and production' of fossil fuels on the OCS...." Defs.' Opening Br. 43. Rejecting Defendants jurisdictional invocation of the OCSLA, the district court held that Defendants failed to show a but-for connection between Baltimore's causes of action and the Outer Continental Shelf (OCS). BP P.L.C., 388 F. Supp. 3d at 566-67. Defendants do not believe a but-for connection is a requirement under the OCSLA's jurisdictional grant, and, even if it is, they maintain it is satisfied. We disagree with Defendants on both fronts.
We first consider whether the OCSLA's jurisdictional grant requires a but-for connection between a cause of action and the OCS. In full, the OCSLA provides federal district courts with original jurisdiction to hear cases involving the OCS4:
[T]he district courts of the United States shall have jurisdiction of cases and controversies arising out of, or in connection with (A) 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, or (B) the cancellation, suspension, or termination of a lease or permit under this subchapter.
43 U.S.C. § 1349(b)(1) (emphasis added). Section 1349(b)(1) is a "broad" grant of federal jurisdiction. Texaco Expl. & Prod., Inc. v. AmClyde Engineered Prods. Co., Inc., 448 F.3d 760, 768 (5th Cir. 2006). When assessing jurisdiction under this provision, we consider 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." In re Deepwater Horizon, 745 F.3d 157, 163 (5th Cir. 2014) (citation omitted). Since Baltimore does not contest Defendants' "operations" on the OCS, we are only concerned with the meaning of "arising out of, or in connection with," which the OCSLA does not define. Departing from the Fifth Circuit, Defendants preliminarily contest whether those phrases impose a but-for connection at all. We thus resort to our tools of statutory construction to determine if those phrases require a but-for connection between a plaintiff's case and operations on the OCS. Those tools include: (1) statutory text; (2) statutory structure; (3) legislative history; (4) judicial interpretations; (5) related statutes; and (6) congressional purpose. See Brown & Williamson Tobacco Corp. v. Food & Drug Admin., 153 F.3d 155, 162 (4th Cir. 1998); United States v. Jackson, 759 F.2d 342, 344 (4th Cir. 1985).
Examining the text alongside relevant case law resolves this matter. To "arise" means "[t]o originate; to stem (from)" or "[t]o result (from)." Arise, BLACK'S LAW DICTIONARY (11th ed. 2019). "Connection" denotes a "contextual relation or association" or "relationship in fact." Connection, MERRIAM-WEBSTER, https://www.merriam-webster.com/dictionary/connection (last visited Feb. 27, 2022). Under their plain meanings, "arising out of" and "in connection with" both require a causal relationship to determine if a given controversy actually "result[s] (from)" or possesses a "relationship in fact [with]" activities conducted on the OCS. See Burrage v. United States, 571 U.S. 204, 214, 134 S.Ct. 881, 187 L.Ed.2d 715 (2014) (holding that "results from" imposes but-for causation); Levine v. Diamanthuset, Inc., 950 F.2d 1478, 1485-86 (9th Cir. 1991) (noting that "in connection with" requires a causal relationship for actions under Rule 10b-5, which implements section 10(b) of the Securities and Exchange Act of 1934); Arthur Young & Co. v. Reves, 937 F.2d 1310, 1327-28 (8th Cir. 1991) (stating that "in connection with" is satisfied under Rule 10b-5 when but-for causation is shown). We are not alone in this conclusion. Federal courts interpreting "arise out of, or in connection with" under the OCSLA have consistently determined that it imposes a but-for relationship between a party's case and operations on the OCS. See Bd. of Cnty. Comm'rs of Boulder Cnty., 25 F.4th at 1272-75; In re Deepwater Horizon, 745 F.3d at 163; Tenn. Gas Pipeline v. Hous. Cas. Ins. Co., 87 F.3d 150, 155 (5th Cir. 1996); Recar v. CNG Producing Co., 853 F.2d 367, 369 (5th Cir. 1988). We decline to disrupt this settled and sensible trend.
Accordingly, we join our sister circuits and find that invoking jurisdiction under § 1349(b)(1) requires a but-for connection between a claimant's cause of action and operations on the OCS. See Bd. of Cnty. Comm'rs of Boulder Cnty., 25 F.4th at 1272-75; In re Deepwater Horizon, 745 F.3d at 163.
When applying a but-for test, we must ask if Baltimore's injuries "would not have occurred" but for Defendants' conduct on the OCS. See Wright v. Lassiter, 921 F.3d 413, 419 (4th Cir. 2019) (explaining but-for causation); see also Martin v. Duffy, 977 F.3d 294, 299 (4th Cir. 2020) (same); Talkington v. Atria Reclamelucifers Fabrieken BV (Cricket BV), 152 F.3d 254, 264 (4th Cir. 1998) (same). Requiring a but-for connection still "implies a broad jurisdictional grant under [the OCSLA]...." Tenn. Gas Pipeline, 87 F.3d at 155. But a "mere connection" between a claimant's case and operations on the OCS is insufficient to show federal jurisdiction if the relationship is "too remote." In re Deepwater Horizon, 745 F.3d at 163 (citation omitted); see also Plains Gas Sols., LLC v. Tenn. Gas Pipeline Co., LLC, 46 F. Supp. 3d 701, 704-05 (S.D. Tex. 2014) (noting that the but-for test is not "limitless" under the OCSLA).
Here, Baltimore's allegations and injuries are not confined to Defendants' fossilfuel activities on the OCS. Defendants are also being sued for unlawfully marketing, promoting, and ultimately selling their fossil-fuel products, which includes their collective failure to warn the public of the known dangers associated with their fossil-fuel products. See J.A. 43, 150-71. Defendants' marketing practices, which led to increased consumption of their fossil-fuel products and then climate change, are far removed from their OCS activities and their tort liability. In other words, irrespective of Defendants' activities on the OCS, Baltimore's injuries still exist as a result of that distinct marketing conduct. Regardless, Defendants concede that some of their fossil-fuel production occurred out-side of the OCS. Defs.' Opening Br. 41, 46-47; J.A. 41 (Defendants' noting that their oil and gas activities occurred within the National Wildlife Refuge System). And Baltimore's Complaint contains examples of Defendants' land-based activities that contributed to its injuries and are hundreds of miles away from the OCS. See J.A. 66 (mentioning CONSOL's coal mines in Appalachia). Because Baltimore's injuries remain even after we disregard "whatever slice" of Defendants' fossil-fuel production occurred on the OCS, we cannot find a but-for connection satisfying the OCSLA's jurisdictional grant. See Bd. of Cnty. Comm'rs of Boulder Cnty., 25 F.4th at 1272-75 (rejecting Defendants' invocation of jurisdiction under the OCSLA using the but-for cause inquiry).
Case law supports this finding since Baltimore's Complaint only has a "mere connection" to the OCS. In Tennessee Gas Pipeline, a barge physically "allided" with a fixed platform on the OCS, and the Fifth Circuit found a but-for connection, concluding "there would not have been an accident had Tennessee Gas not built its platform to extract minerals from the OCS." 87 F.3d at 152, 155. Most recently, in In re Deepwater Horizon, the Fifth Circuit found a but-for connection when it was "undeniable" that contaminants would not have entered the State of Louisiana's territorial waters but for drilling and exploration on the OCS. 745 F.3d at 163-64. Additional case law features tort claims involving personal injuries with a direct connection to an OCS operation. See Barker v. Hercules Offshore, Inc., 713 F.3d 208, 213 (5th Cir. 2013) ("Barker's employment on the jack-up rig was directly related to the development of minerals or other natural resources on the OCS." (citation omitted)); Hufnagel v. Omega Serv. Indus., Inc., 182 F.3d 340, 350 (5th Cir. 1999) ("Hufnagel's injuries occurred on a stationary drilling platform involved in the `exploration, development, or production' of minerals on the shelf." (citation omitted)); Ronquille v. Aminoil Inc., C/A No. 14-164, 2014 WL 4387337, at *2 (E.D. La. Sept. 4, 2014) (finding the but-for test satisfied where a plaintiff alleged he was exposed to asbestos when he provided direct support for "Shell Oil's rigs within [the OCS]"). Baltimore's Complaint does not align with cases finding connections to the OCS. Instead, the allegations contained therein turn on Defendants' deceptive marketing practices as well as the resulting impacts of their fossil-fuel products, both of which are far removed from any production occurring on the OCS. See Bd. of Cnty. Comm'rs of Boulder Cnty., 25 F.4th at 1273-75; see also Plaquemines v. Total Petrochemical & Refining USA, Inc., 64 F. Supp. 3d 872, 898 (E.D. La. 2014) (declining to find jurisdiction under the OCSLA when there were "injuries sustained in state waters from activities that occurred off the shelf" and finding a relationship to the OCS as "too remote and attenuated"). Contrary to dangerous contaminants entering a State's territorial waters as a result from drilling on the OCS, or the worker who is injured on an OCS platform, Baltimore's claims of Defendants' trickery and deceit, conduct leading to climate change, bear a weak relationship to the OCS. Plaquemines, 64 F. Supp. 3d at 898. We find that this is all "too remote and attenuated" for a but-for connection under OCSLA. Id.
Ignoring the OCSLA's text and judicial decisions applying it, Defendants argue that the OCSLA's policy aims will be frustrated and a parade of horrible outcomes will ensue if we decline federal jurisdiction. To them, if Baltimore is ultimately granted relief, "[s]uch relief would substantially discourage OCS production and jeopardize the future viability of the federal OCS leasing program, potentially costing the federal government hundreds of millions of dollars in revenues." Defs.' Opening Br. 45. Maybe so. But under our laws, "a defendant cannot establish removal jurisdiction by mere speculation and conjecture, with unreasonable assumptions." Ibarra v. Manheim Invs., Inc., 775 F.3d 1193, 1197 (9th Cir. 2015); see also Bd. of Cnty. Comm'rs of Boulder Cnty., 25 F.4th at 1275. Even if such speculative and policy-laden arguments were permitted, the authorities Defendants rely upon for their jurisdictional theory are markedly different from Baltimore's suit because they involve the intersection of commercial disputes satisfying the "operation" element of the OCSLA, not injurious torts impacting a municipality's citizenry and internal infrastructure. See Defs.' Opening Br. 45 (citing EP Operating Ltd. P'ship v. Placid Oil Co., 26 F.3d 563, 566 (5th Cir. 1994) (a party seeking partition by licitation); United Offshore Co. v. S. Deepwater Pipeline Co., 899 F.2d 405, 406 (5th Cir. 1990) (a claimant requesting the compulsion of arbitration and dissolution of an injunction); Amoco Prod. Co. v. Sea Robin Pipeline Co., 844 F.2d 1202, 1203-04 (5th Cir. 1988) (a party disputing its take-or-pay obligations in contracts for the purchase and sale of natural gas)). As it concerns physical damages to persons and property, we thus join other courts in rejecting this policy-based theory of jurisdiction under the OCSLA. See Bd. of Cnty. Comm'rs of Boulder Cnty., 25 F.4th at 1275; Plaquemines, 64 F. Supp. 3d at 896-98.
For the foregoing reasons, we affirm the district court's thoughtful rejection of the OCSLA's jurisdictional grant as a basis for federal jurisdiction over Baltimore's claims.
Defendants next press removal jurisdiction under the bankruptcy removal statute. The bankruptcy removal statute provides:
A party may remove any claim or cause of action in a civil action other than ... a civil action brought by a governmental unit's police or regulatory power, to the district court where such civil action is pending, if such district court has jurisdiction of such claim or cause of action under section 1334 of this title.
28 U.S.C. § 1452(a). In turn, § 1334(b) states that federal district courts shall have "original but not exclusive jurisdiction of all civil proceedings arising under title 11, or arising in or related to a case under title 11." Defendants do not argue that Baltimore's Complaint involves a bankruptcy proceeding under Title 11. Instead, they maintain that Baltimore's Complaint is "related to" bankruptcy cases because it primarily seeks to hold them liable for the "pre-bankruptcy conduct" of a Chevron subsidiary, Texaco, Inc. Defs.' Opening Br. 52. Defendants describe Texaco's bankruptcy plan, along with those of Defendants' other predecessors, subsidiaries, and affiliates, as confirmed. Id. But as with Defendants' reliance upon the OCSLA, Baltimore's suit is too remote for bankruptcy removal to lie.
Generally, at the pre-confirmation stage of a reorganization plan, we first stated that the "related to" test addressed "whether the outcome of [a civil] proceeding could conceivably have any effect on the estate being administered in bankruptcy." In re Celotex Corp., 124 F.3d 619, 625 (4th Cir. 1997) (quoting Pacor, Inc. v. Higgins, 743 F.2d 984, 994 (3d Cir. 1984)). However, we then endorsed a "close nexus" test at the post-confirmation stage, allowing jurisdiction over "[m]atters that affect the interpretation, implementation, consummation, execution, or administration of the confirmed plan...." Valley Historic Ltd. P'ship v. Bank of N.Y., 486 F.3d 831, 836-37 (4th Cir. 2007) (alteration in original) (quoting In re Resorts Int'l, Inc., 372 F.3d 154, 167 (3d Cir. 2004)); see also In re Kirkland, 600 F.3d 310, 317 (4th Cir. 2010) (same). Essentially, a plaintiff's suit "must affect an integral aspect of the bankruptcy process" for "related to" jurisdiction to exist. In re Kirkland, 600 F.3d at 317 (citation omitted).
Defendants explicitly rely upon a 1988 confirmed plan from Chevron's subsidiary, Texaco, to contend we possess bankruptcy jurisdiction.5 First, we find it hard to fathom how Baltimore's suit, filed thirty years later, has any "close nexus" to Texaco's confirmed planned because it is so far removed from the initial bankruptcy confirmation. See Nuveen Mun. Tr. ex rel. Nuveen High Yield Mun. Bond Fund v. WithumSmith Brown, P.C., 692 F.3d 283, 294 (3d Cir. 2012) (noting that bankruptcy jurisdiction "wanes" after the confirmation of a case). Secondly, Baltimore's claims are completely independent and distinct from Texaco's bankruptcy plan, there is no indication that the bankruptcy plan involved climate change, and Defendants do not explain how a judgment more than thirty years later could impact Texaco's estate. See Valley Historic, 486 F.3d at 837 (finding no "related to" jurisdiction when a bankruptcy plan was "substantially consummated"); New Horizon of N.Y. LLC v. Jacobs, 231 F.3d 143, 154-55 (4th Cir. 2000) (holding there was no "related to" jurisdiction for state-law claims that were "completely unrelated to the ... administration of the bankruptcy estates"). For those reasons, we conclude Baltimore's suit is too far removed from Texaco's 1988 confirmed plan for us to find a "close nexus" warranting bankruptcy jurisdiction.
Citing to a powerpoint presentation they filed in the district court, Defendants speculate that other corporate entities related to Defendants "may also be operating under confirmed bankruptcy cases." Defs.' Opening Br. 52 (citing Ex. 20 to Decl. of Joshua S. Lipshutz, Mayor & City Council of Balt. v. BP P.L.C., 388 F. Supp. 3d 538 (D. Md. 2019) (No. 1:18-cv-02357-ELH), ECF No. 125-20 at 3)). Interestingly, Defendants' filed presentation includes 134 bankruptcy filings from energy companies from 2015 to 2017. Yet, Defendants do not specify if any of those corporate entities are actually related to any of them, nor do they indicate if or when those bankruptcy cases were confirmed by federal courts. By failing to direct us to anything further, we find this is insufficient to carry any burden for bankruptcy removal and decline to do counsel's work. Prince, 848 F.3d at 176; N.Y. Rehab. Care Mgmt., LLC v. Nat'l Lab. Rels. Bd., 506 F.3d 1070, 1076 (D.C. Cir. 2007) ("It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel's work." (citation omitted)).
Accordingly, we dispense with Defendants' primary arguments because they have failed to show that Baltimore's suit has a "close nexus" or is "related" to any bankruptcy plan involving any of its predecessors, subsidiaries, or affiliates under § 1452(a).
Even were we to find bankruptcy jurisdiction is proper, removal is still inappropriate if the proceeding is a civil action by a "governmental unit to enforce such governmental unit's police or regulatory power...." § 1452(a). Baltimore's suit is such an action, and we note that Defendants only advance one sentence concerning whether this "police or regulatory power" exception is inapplicable to their bankruptcy removal invocation. See Defs.' Opening Br. 52-53.
Baltimore clearly qualifies as a "governmental unit" since it is a municipality under Title 11 and, thus, for the purposes of § 1452(a) as well. See 11 U.S.C. § 101(27) (defining a "governmental unit" as a "municipality"). This Court has not yet interpreted a governmental unit's "police or regulatory power" under § 1452(a). But we have interpreted "police and regulatory power" under § 362(b)(4) of the bankruptcy code, which is an exception to the automatic stay of actions brought by creditors against debtors after bankruptcy petitions are filed. See Safety-Kleen, Inc. (Pinewood) v. Wyche, 274 F.3d 846, 864-66 (4th Cir. 2001). In Safety-Kleen, this Court held that a "police and regulatory power" is being exercised if the purpose of a state law is to effectuate public policy or promote the public safety and welfare. Id. at 865 (citations omitted). We stated that this is an objective analysis that requires a court to "determine the primary purpose of the law that the state is attempting to enforce." Id. (citations omitted).
As noted above, Baltimore brings eight different claims against Defendants, and all of those claims seek to shift the costs of climate-change injuries onto Defendants as opposed to burdening "local taxpayers, residents, or broader segments of the public." J.A. 47. In its public nuisance claim, for example, Baltimore asserts that Defendants' interference with its property, infrastructure, and public resources will be "borne by [Baltimore's] citizens" because they will purportedly suffer economic losses and negative, public-health consequences. J.A. 151. This is easily said for Baltimore's other claims as well. Baltimore thus seeks to protect its citizens, property, and resources by suing Defendants, all of whom are private parties, for the detrimental impacts of their fossil-fuel products. See J.A. 150-71. We have no doubt this suit is a valid exercise of Baltimore's police power. See Crutcher v. Kentucky, 141 U.S. 47, 61, 11 S.Ct. 851, 35 L.Ed. 649 (1891) ("[T]he police power of the state extends to almost everything within its borders,—to the suppression of nuisances; [and] to the prohibition of manufactures deemed injurious to the public health...." (citations omitted)); Sansotta v. Town of Nags Head, 724 F.3d 533, 541 (4th Cir. 2013) ("The Town's actions to abate a nuisance were reasonable ... uses of its police power...." (citation omitted)). Accordingly, we hold that the exception to bankruptcy removal is applicable, precluding Defendants' ability to remove under § 1452(a). See In re Methyl Tertiary Butyl Ether ("MTBE") Prods. Liab. Litig., 488 F.3d 112, 133 (2d Cir. 2007) (holding that "police or regulatory powers" were exercised under § 1452(a) when California and New Hampshire sought to "remedy and prevent environmental damage with potentially serious consequences for public health"); Safety-Kleen, 274 F.3d at 866 (holding there was a "clear exercise" of South Carolina's regulatory power when it sought to deter environmental misconduct through financial assurance regulations).
Thus, we find no federal jurisdiction under the bankruptcy removal statute and affirm the district court in this regard.
With few theories remaining, Defendants attempt to reach federal court by appealing to our admiralty jurisdiction under the Constitution and 28 U.S.C. § 1333(1). They believe that admiralty jurisdiction is conferred merely because "fossil-fuel extraction occurs on vessels engaged in maritime commerce[.]" Defs.' Opening Br. 53. We reject Defendants' far-reaching view of admiralty jurisdiction.
The Constitution extends our judicial power to "all Cases of admiralty and maritime Jurisdiction." U.S. Const. art. III, § 2. Congress provides that "[t]he district courts shall have original jurisdiction, exclusive of the courts of the States, of: ... Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled." 28 U.S.C. § 1333(1). The saving-to-suitors clause of § 1333(1) "preserves remedies and the concurrent jurisdiction of state courts over some admiralty and maritime claims." Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438, 445, 121 S.Ct. 993, 148 L.Ed.2d 931 (2001) (citations omitted). The Supreme Court previously emphasized that claims brought under the saving-to-suitors clause in state court are not removable to federal court based on federal-question jurisdiction. See Romero v. Int'l Terminal Operating Co., 358 U.S. 354, 371-75, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959). We have likewise stated that the savings-to-suitors clause "preserves a maritime suitor's election to pursue common-law remedies in state court." Servis v. Hiller Sys. Inc., 54 F.3d 203, 206 (4th Cir. 1995). Yet, "[a]dmirality and maritime cases may ... be removable to federal court when there exists some independent basis for federal jurisdiction, such as diversity of citizenship or when federal jurisdiction is independently established by a federal maritime statute." Id. at 207 (citations omitted) (cleaned up); see also In re Lockheed Martin Corp., 503 F.3d 351, 356 (4th Cir. 2007).
Adhering to those precedents, Baltimore argues that its state-law claims are not removable under § 1441, the general removal statute, if they sound in admiralty unless there is "some independent jurisdictional basis, such as diversity or federal question jurisdiction." Baltimore's Resp. Br. 52-53. Defendants aptly point out that the Venue Clarification Act of 2011 eliminated a portion of § 1441(b) that federal courts previously believed blocked the removal of admiralty claims without another jurisdictional basis. Pub. L. No. 112-63, § 103, 125 Stat. 758, 759 (2011); see also Lu Junhong v. Boeing Co., 792 F.3d 805, 817-18 (7th Cir. 2015) (holding that § 1441 permits removal when there is an admiralty case under § 1333(1)). The parties, however, only devote one paragraph each to this admittedly complicated issue that has divided federal courts. Thomas J. Schoenbaum, Admiralty and Maritime Law § 4.3, Westlaw (database updated Dec. 2021) ("After 2011, courts split on whether the working of the amended statute changes the rule for removal of maritime claims."). Because of their inadequate briefing, we decline to formally decide whether § 1441 permits removal based on the admiralty jurisdiction grant under § 1333(1). United States v. Banks, 884 F.3d 998, 1011 n.3 (10th Cir. 2018) ("Given the unsettled nature of this question and the parties' inadequate briefing, we decline to decide this question here."); see also Covey v. Assessor of Ohio Cnty., 777 F.3d 186, 198 n.11 (4th Cir. 2015) (same); Brownfield v. City of Yakima, 612 F.3d 1140, 1149 n.4 (9th Cir. 2010) (same). Instead, we press ahead under the assumption § 1441 permits removal because of the original jurisdiction grant of § 1333(1).
To invoke admiralty jurisdiction, a party must satisfy "conditions both of location and of connection with maritime activity." Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995). To satisfy the location test, a tort must either "occur on navigable waters, or, if suffered on land, at least be caused by a vessel on navigable water." White v. United States, 53 F.3d 43, 45 (4th Cir. 1995) (citing Grubart, 513 U.S. at 534, 115 S.Ct. 1043). For the connection test, a court must decide: (1) "whether the general features of the type of incident involved' have a potentially disruptive impact on maritime commerce[,]'" and (2) "whether the general character of the activity giving rise to the incident shows a substantial relationship to traditional maritime activity." Id. at 46 (quoting Grubart, 513 U.S. at 534, 115 S.Ct. 1043). Defendants never argue that either condition is satisfied in their Opening Brief. See Grayson O Co., 856 F.3d at 316 (noting that parties waive arguments not raised in their opening brief). But we nevertheless find that Defendants' admiralty invocation begins and ends with the location test.
To begin, Baltimore pleads that its injuries involve damage to its "highways, rail lines, emergency response facilities, waste water facilities, and power plants...." J.A. 143. And, according to Baltimore, those land-based injuries stem from "sea level rise and associated impacts, increased frequency and severity of extreme precipitation events, increased frequency and severity of draught, [and the] increased frequency and severity of heat waves and extreme temperatures...." J.A. 140 (emphasis added). While Baltimore alleges "sea level rise" as one of the many sources of its injuries, the actual torts involving Baltimore's property have occurred on land as opposed to navigable waters. Grubart, 513 U.S. at 533, 115 S.Ct. 1043. Baltimore's Complaint never mentions any tort that occurred on navigable waters, and Defendants do not identify one.
Still, the location test may be satisfied when a land-based tort is caused by a vessel on navigable waters. Grubart, 513 U.S. at 534, 115 S.Ct. 1043 (citing 46 U.S.C. § 30101). Defendants seem to argue that their "floating oil rigs" and "floating drilling platforms" are vessels meeting the location test. Without giving us more, we disagree. Whether a craft or structure qualifies as a "vessel" is typically a question of law, but it sometimes comes down to the facts. Manuel v. P.A.W. & Drilling & Well Serv., Inc., 135 F.3d 344, 347 (5th Cir. 1998). Here, we deem it a question of law. The term "vessel" is "generally defined broadly[.]" Bernard v. Binnings Constr. Co., Inc., 741 F.2d 824, 828 (5th Cir. 1984). Usually, "[c]onventional ships and barges as well as such unconventional craft as submersible drilling barges and floating dredges which are designed for navigation and commerce are vessels within general maritime ... jurisdiction and retain such status even while moored, dry-docked, or otherwise immobilized and secured to land." Cook v. Belden Concrete Prods., Inc., 472 F.2d 999, 1001 (5th Cir. 1973) (emphasis added) (citations omitted). Defendants never suggest that their floating rigs and platforms were either designed for navigation or used for navigation when Baltimore suffered its injuries. They exclusively posit that their structures are used for oil and gas production, not for any navigation purposes. See Defs.' Reply 28. This is fatal to a characterization of Defendants' floating rigs and platforms as vessels for admiralty jurisdiction. See Bernard, 741 F.2d at 831 (noting that a structure is typically not a "vessel" under the Jones Act, 46 U.S.C. § 30104, when it is constructed primarily for use as a work platform); Gremillion v. Gulf Coast Catering Co., 904 F.2d 290, 291 n.2, 294 (5th Cir. 1990) (holding a barge used as a "floating hotel" was not a vessel under the Jones Act); Cook, 472 F.2d at 1002 (holding that there was no vessel for maritime jurisdiction when a "floating construction platform was not designed for the purpose of navigation," and it was "engaged in its primary function as a stationary construction platform"). But see Barker, 713 F.3d at 215 (considering "jack-up drilling platforms" as vessels).
Even if we credit Defendants with having vessels, Baltimore never alleges that any vessel on navigable waters caused any of its land-based injuries. Instead, Baltimore repeatedly references "flood-associated damages" and "heavy rains" that have destroyed its infrastructure and exacerbated the health and environmental risks of its citizens. J.A. 145. There are no allegations that its injuries were either "caused by the vessel itself or its appurtenances." Egorov, Puchinsky, Afanasiev & Juring v. Terriberry, Carroll & Yancey, 183 F.3d 453, 456 (5th Cir. 1999) (declining to find admiralty jurisdiction because neither the vessel nor its appurtenances caused physical damage on land or the alleged tort of tortious interference with contract); see also MLC Fishing, Inc. v. Velez, 667 F.3d 140, 141-42 (2d Cir. 2011) (holding that a claimant's slip-and-fall on a ramp leading from a floating dock was not caused by a vessel or its appurtenances); Corrigan v. Harvey, 951 F. Supp. 948, 950, 952-53 (D. Haw. 1996) (holding admiralty jurisdiction did not lie when a plaintiff failed to allege any facts about his injury being caused by a vessel, and the parties agreed that the injury resulted from a physical fight on a pier). Since no vessel is alleged to have caused any of the committed torts, we find this issue easily resolved under the wellpleaded complaint rule. Metro. Life, 481 U.S. at 63, 107 S.Ct. 1542.
Accordingly, Defendants have failed to carry their removal burden of showing how their floating rigs and platforms qualify as vessels for the location test. We conclude that they are not, as a matter of law, especially since Baltimore's Complaint never invokes them as the cause of its land-based torts. Cf. Grubart, 513 U.S. at 529-30, 534-35, 115 S.Ct. 1043 (holding that the location test was satisfied when a crane, attached to a barge, was used to lift and replace pilings around a bridge pier and a tunnel flooded after an accident). As such, we find no merit to Defendants' invocation of admiralty jurisdiction and affirm the district court's rejection of this basis for federal jurisdiction.6
At this juncture, the only remaining path to federal court is Defendants' theory of federal officer removal. In their Supplemental Brief, which was filed after their litigation in the Supreme Court, Defendants reiterate that Baltimore's case is removable on the grounds that it originally raised on appeal, including federal officer removal. Defs.' Suppl. Br. 2 n.1. Defendants do not present any new arguments or shortcomings concerning our previous holding that rejected the propriety of federal officer removal. The Supreme Court only required us to consider Defendants' other removal grounds on remand and never addressed our holding concerning federal officer removal. Compare BP P.L.C., 141 S. Ct. at 1543, with BP P.L.C., 952 F.3d at 461-71. Nevertheless, because the Supreme Court vacated the entirety of our prior opinion, it has no precedential effect. Accordingly, we deem it appropriate to adopt and include our prior opinion and its reasoning, which rejects Defendants' ability to remove under the federal officer removal statute.
The federal officer removal statute authorizes the removal of state-court actions filed against "any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, for or relating to any act under color of such office." 28 U.S.C. § 1442(a)(1). Its "basic purpose" is to protect against the interference with federal operations that would ensue if a state were able to arrest federal officers and agents acting within the scope of their authority and bring them to trial in a state court for an alleged state-law offense. Watson v. Philip Morris Co., 551 U.S. 142, 150, 127 S.Ct. 2301, 168 L.Ed.2d 42 (2007) (explaining that state-court proceedings may (1) "reflect `local prejudice' against unpopular federal laws or federal officials"; (2) "impede [enforcement of federal law] through delay"; or (3) "deprive federal officials of a federal forum in which to assert federal immunity defenses" (citations omitted)).
Thus, to remove a case under § 1442(a)(1), a private defendant must show: "(1) that it act[ed] under' a federal officer, (2) that it has a colorable federal defense,' and (3) that the charged conduct was carried out for [or] in relation to the asserted official authority." Sawyer v. Foster Wheeler LLC, 860 F.3d 249, 254 (4th Cir. 2017) (first alteration in original) (citations omitted). Here, Defendants assert that Baltimore's state-court action is removable under the federal officer removal statute "because the City `bases liability on activities undertaken at the direction of the federal government.'" BP P.L.C., 388 F. Supp. 3d at 567 (citation omitted). It is the first and third prongs that are therefore in dispute. See Baltimore's Resp. Br. 14-21. We begin with the first, though the acting-under and causal-nexus prongs often "collapse into a single requirement." In re MTBE, 488 F.3d at 124; see also 28 U.S.C. § 1442(a)(1) (targeting for removal state-court actions "for or relating to any act under color of [federal] office").
The statutory phrase "acting under" describes "the triggering relationship between a private entity and a federal officer." Watson, 551 U.S. at 149, 127 S.Ct. 2301. Although the words "acting under" are "broad," the Supreme Court has emphasized that they are not "limitless." 229 229 Id. at 147, 127 S.Ct. 2301. In cases involving a private entity, the "acting under" relationship requires that there at least be some exertion of "subjection, guidance, or control" on the part of the federal government. See id. at 151, 127 S.Ct. 2301 (quoting Webster's New International Dictionary 2765 (2d ed. 1953)). Additionally, "precedent and statutory purpose" make clear that "`acting under' must involve an effort to assist, or to help carry out, the duties or tasks of the federal superior." Id. at 152, 127 S.Ct. 2301.
In Watson, the Supreme Court held that "simply complying with the law" does not constitute the type of "help or assistance necessary to bring a private [entity] within the scope of the statute," id., no matter how detailed the government regulation or how intensely the entity's activities are supervised and monitored, see id. at 153, 127 S.Ct. 2301. In doing so, the Court distinguished several decisions cited by the defendant there in which lower courts had held that private contractors fell within the terms of § 1442(a)(1), at least where the relationship was "an unusually close one involving detailed regulation, monitoring, or supervision." Id. at 153, 127 S.Ct. 2301 (citing Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387 (5th Cir. 1998)). The difference between those cases and a case involving a highly regulated private firm, the Court reasoned, was the fulfillment of a government need:
The answer to this question lies in the fact that the private contractor in such cases is helping the Government to produce an item that it needs. The assistance that private contractors provide federal officers goes beyond simple compliance with the law and helps officers fulfill other basic governmental tasks. In the context of Winters, for example, Dow Chemical fulfilled the terms of a contractual agreement by providing the Government with a product that it used to help conduct a war. Moreover, at least arguably, Dow performed a job that, in the absence of a contract with a private firm, the Government itself would have had to perform.
Id. at 153-54, 127 S.Ct. 2301.
The Supreme Court found these circumstances sufficient to distinguish Dow Chemical (the contractor in Winters) from the regulated tobacco companies who sought removal in Watson, and so it did not address "whether and when particular circumstances may enable private contractors to invoke the statute." Id. at 154, 127 S.Ct. 2301. Nevertheless, in light of the Court's reasoning, we have relied on Watson to hold that certain private contractors "act under" federal officials. See Sawyer, 860 F.3d at 255. In Sawyer, we observed that "courts have unhesitatingly treated the `acting under' requirement as satisfied where a contractor seeks to remove a case involving injuries arising from equipment that it manufactured for the government." Id. Thus, in that case, we found that the defendant "acted under" the United States Navy when it manufactured boilers to be used aboard naval vessels per a detailed government contract. See id. at 252-53, 255.
Here, Defendants collectively seek removal under § 1442 based on three contractual relationships between certain Defendants and the federal government: (1) fuel supply agreements between one Defendant (Citgo) and the Navy Exchange Service Command ("NEXCOM") from 1988 to 2012; (2) oil and gas leases administered by the Secretary of the Interior under the OCSLA; and (3) a 1944 unit agreement between the predecessor of another Defendant (Chevron) and the U.S. Navy for the joint operation of a strategic petroleum reserve in California known as the Elk Hills Reserve. For the reasons that follow, we agree with Baltimore that none of these relationships are sufficient to justify removal under the federal officer removal statute in this case, either because they fail to satisfy the acting-under prong or because they are insufficiently related to Baltimore's claims for purposes of the nexus prong.
First, we have little trouble concluding that the NEXCOM fuel supply agreements do not satisfy the "acting under" requirement. These agreements required Defendant Citgo to advertise, supply, and distribute gasoline and diesel to NEXCOM, which NEXCOM resold at a discount to "active duty military, retirees, reservists, and their families" at "service stations operated by NEXCOM on Navy bases located in a number of states across the country." J.A. 216. Although Defendants contend that Citgo helped "the Government to produce an item that it needs" by selling NEXCOM fuel for resale on Navy bases, see Watson, 551 U.S. at 153, 127 S.Ct. 2301, such logic would bring every seller of contracted goods and services within the ambit of § 1442 when the government is a customer.
We refuse to adopt such a sweeping interpretation of Watson. In our view, the key lesson from Watson is that closely supervised government contractors are distinguishable from intensely regulated private firms because the former assist the government in carrying out basic governmental functions. See 551 U.S. at 153-54, 127 S.Ct. 2301 ("The assistance that private contractors provide federal officers goes beyond simple compliance with the law and helps officers fulfill other basic governmental tasks.... [And they are tasks that] the Government itself would [otherwise] have ... to perform."). And the provision of means to engage in chemical warfare, as in Winters, or even the provision of specific component parts to be used aboard military vessels, as in Sawyer, is different in kind from the provision of motor vehicle fuel for resale on Navy bases—both in terms of the nature of the "item" provided and the level of supervision and control that is contemplated by the contract.
To be sure, other circuits have applied the Watson dictum beyond the militaryprocurement-contract context, and we do not suggest that only defense contractors may invoke the federal officer removal statute.7 Yet none of those cases have confronted a contract like the one we have here, which involves the sale of a standardized consumer product. Indeed, the Ninth Circuit has held, albeit in an unpublished decision, that the fact that the federal government purchases "off-the-shelf" products from a manufacturer "does not show that the federal government [has] supervised [the] manufacture of [such products] or directed [that they be] produce[d] in a particular manner, so as to come within the meaning of `act[ed] under.'" Washington v. Monsanto Co., 738 F. App'x 554, 555 (9th Cir. 2018) (sixth alteration in original) (quoting 28 U.S.C. § 1442(a)(1)).
Although Defendants strongly resist the off-the-shelf-products analogy by pointing to particular provisions in the fuel supply agreements, we find those provisions unavailing. Defendants emphasize that the agreements: (1) "set forth detailed fuel specifications' that required compliance with specified American Society for Testing and Materials standards, and compelled NEXCOM to have a qualified independent source analyze the products' for compliance with those specifications"; (2) "authorized the Contracting Officer to inspect delivery, site, and operations"; and (3) "established detailed branding and advertising requirements." Defs.' Reply Br. 19-20 (footnotes omitted). But we have reviewed the contractual provisions cited by Defendants, and they are a far cry from the type of close supervision that existed in both Sawyer and Winters. See Sawyer, 860 F.3d at 253 (noting that the Navy provided "highly detailed ship [and military] specifications" that boilers were required to match and exercised "intense direction and control ... over all written documentation to be delivered with its naval boilers," including warnings); Winters, 149 F.3d at 398-99 (noting that the Department of Defense required Dow Chemical to provide Agent Orange under threat of criminal sanctions, maintained strict control over the chemical's development, and required that it be produced according to its specifications); cf. Isaacson v. Dow Chem. Co., 517 F.3d 129, 138 (2d Cir. 2008) (rejecting "off-the-shelf argument" because "commercially available products did not contain the Agent Orange herbicides in a concentration as high as that found in Agent Orange"). Rather, the cited provisions seem typical of any commercial contract. They are incidental to sale and sound in quality assurance.8
Next up are the oil and gas leases. Defendants allege that Chevron and "other Defendants" have extracted oil and gas on the federal OCS pursuant to a leasing program administered by the Secretary of the Interior under the OCSLA. J.A. 212; see, e.g., J.A. 233-39 (boilerplate lease); see also Ctr. for Sustainable Econ. v. Jewell, 779 F.3d 588, 592 (D.C. Cir. 2015) ("The [OCSLA] created a framework to facilitate the orderly and environmentally responsible exploration and extraction of oil and gas deposits on the OCS. It charges the Secretary of the Interior with preparing a program every five years containing a schedule of proposed leases for OCS resource exploration and development.").
The leases grant lessees "the exclusive right and privilege to drill for, develop, and produce oil and gas resources" in the submerged lands of the OCS in exchange for certain royalties on production, see J.A. 233-34, and requires them to exercise diligence in the development of the leased area by engaging in exploration, development, and production activities in accordance with government-approved plans, see J.A. 234; see also 30 C.F.R. §§ 550.200-.299 (expounding plans referenced in lease). The leases also place certain conditions on the disposition of oil and gas that is produced. Defendants highlight two such conditions. The first mandates that twenty percent of production be offered to "small or independent refiners." J.A. 235. The second gives the government a right of first refusal to purchase all production "[i]n time of war or when the President of the United States shall so prescribe." J.A. 235.
Defendants argue that the foregoing provisions demonstrate that the Defendant lessees were "acting under" the Secretary of the Interior in extracting, producing, and selling fossil-fuel products on the OCS. We disagree.
For starters, we note that many of lease terms are mere iterations of the OCSLA's regulatory requirements. Though OCS resource development is highly regulated, "differences in the degree of regulatory detail or supervision cannot by themselves transform ... regulatory compliance into the kind of assistance" that triggers the "acting under" relationship. See Watson, 551 U.S. at 157, 127 S.Ct. 2301. Of course, the presence of a contractual relationship (here, a lease) is an important distinction. But we are skeptical that the willingness to lease federal property or mineral rights to a private entity for the entity's own commercial purposes, without more, could ever be characterized as the type of assistance that is required to trigger the government-contractor analogy. See, e.g., Bd. of Cnty. Comm'rs of Boulder Cnty. v. Suncor Energy (U.S.A.) Inc., 405 F. Supp. 3d 947, 977 (D. Colo. 2019) ("At most, the leases appear to represent arms-length commercial transactions whereby ExxonMobil agreed to certain terms (that are not in issue in this case) in exchange for the right to use government-owned land for their own commercial purposes."), aff'd, 25 F.4th at 1250-54.
Moreover, we need not decide whether the OCSLA leases are distinguishable from other more run-of-the-mill natural-resources leases because they implicate national energy needs. Either way, we are not convinced that the supervision and control to which OCSLA lessees are subject connote the sort of "unusually close" relationship that courts have previously recognized as supporting federal officer removal. See Watson, 551 U.S. at 153-54, 127 S.Ct. 2301; see also supra Part IV.H.1 (discussing Winters and Sawyer). As Baltimore points out, the leases do not appear to dictate that Defendants "extract fossil fuels in a particular manner." Baltimore's Resp. Br. 18. Nor do they appear to vest the government with control over "the composition of oil or gas to be refined and sold to third parties," let alone purport to affect "the content or methods of Defendants' communications with customers, consumers, and others about Defendants' [fossil-fuel] products." Id.; accord Suncor Energy, 405 F. Supp. 3d at 976-77.9
Finally, even to the extent that the OCSLA leases toe the "acting under" line, we still agree with the district court's analysis as to § 1442's third prong. Any connection between fossil-fuel production on the OCS and the conduct alleged in the Complaint is simply too remote.
To satisfy the third prong, the conduct charged in the Complaint need only "relate to" the asserted official authority. See Sawyer, 860 F.3d at 257-58; see also 28 U.S.C. § 1442(a)(1) ("for or relating to any act under color of such office" (emphasis added)). That is, there must be "a connection or association between the act in question and the federal office." Sawyer, 860 F.3d at 258 (emphasis omitted) (quoting Papp v. Fore-Kast Sales Co., 842 F.3d 805, 813 (3d Cir. 2016)). We elaborated upon this requirement in Sawyer. There, we held that the district court imposed "a stricter standard of causation than that recognized by the statute" by demanding a showing of "specific government direction" as to whether the defendant manufacturer should have warned shipyard workers who assembled boilers for use aboard naval vessels about the dangers of asbestos, which was a component of the boilers manufactured by the defendant under a contract with the Navy. See id. at 252, 258. Notably, the Navy required the use of asbestos in boilers despite its known dangers and dictated the content of the warnings that accompanied the boilers. The defendant manufacturer complied with those requirements. Accordingly, we concluded that the defendant's performance of the contract was "sufficient to connect the plaintiffs' claims, which fault[ed] warnings that were not specified by the Navy, to the warnings that the Navy specified and with which [the defendant] complied." Id. at 258 (emphasis added); see also id. ("These claims undoubtedly `relat[e] to' all warnings, given or not, that the Navy determined in its discretion." (alteration in original)).
In this case, the district court held that even if the "acting under" and "colorable federal defense" requirements were satisfied, Defendants did not plausibly assert that the charged conduct was carried out "for or relating to" the alleged official authority, given the "wide array of conduct" for which they were sued. See BP P.L.C., 388 F. Supp. 3d at 568-69. Specifically, the court explained that Defendants were sued "for their contribution to climate change by producing, promoting, selling, and concealing the dangers of fossil[-]fuel products," and yet failed to show that a federal officer "controlled their total production and sales of fossil fuels," or "directed them to conceal the hazards of fossil fuels or prohibited them from providing warnings to consumers." Id. at 568.
On appeal, Defendants take issue with primarily two aspects of the district court's analysis. First, they argue that the lack of direction as to concealment or warnings is irrelevant to some of Baltimore's claims, namely, strict liability for design defect. Second, they contend that a lack of control as to total production and sales is not dispositive under Sawyer's relaxed reading of the third "nexus" prong.
We disagree with Defendants on both fronts. When read as a whole, the Complaint clearly seeks to challenge the promotion and sale of fossil-fuel products without warning and abetted by a sophisticated disinformation campaign. Of course, there are many references to fossil-fuel production in the Complaint, which spans 132 pages. But, by and large, these references only serve to tell a broader story about how the unrestrained production and use of Defendants' fossil-fuel products contribute to greenhouse gas pollution. Although this story is necessary to establish the avenue of Baltimore's climate-change-related injuries, it is not the source of tort liability. Put differently, Baltimore does not merely allege that Defendants contributed to climate change and its attendant harms by producing and selling fossil-fuel products; it is the concealment and misrepresentation of the products' known dangers—and the simultaneous promotion of their unrestrained use—that allegedly drove consumption, and thus greenhouse gas pollution, and thus climate change.10
For this reason, the lack of federal control over the production and sale of all fossil-fuel products is relevant to the nexus analysis, and the district court did not err in relying upon that fact when finding that any connection between the charged conduct and the asserted official authority was even further diminished. If production and sales went to the heart of Baltimore's claims, we might be inclined to think otherwise. After all, the alleged government-directed conduct (here, the production and sale of fossil fuels extracted on the OCS) need only "relate to" the conduct charged in the Complaint. But given the foregoing allegations, we agree with the district court's conclusion that the relationship between Baltimore's claims and any federal authority over a portion of certain Defendants' production and sale of fossil-fuel products is too tenuous to support removal under § 1442.
In sum, we hold that the Defendants who participated in the OCSLA leasing program were not "acting under" federal officials in extracting and producing fossil fuels on the OCS, and any connection between such activity and Baltimore's claims is too attenuated in any event.
That leaves the 1944 unit agreement governing the operation of the Elk Hills Reserve. Because the agreement has a complicated history, we begin with its origin and purpose, followed by a general overview of its terms (or at least those in dispute). In the end, however, we decline to pass on the question of whether it satisfies the "acting under" prong. Like the OCSLA leases, we hold that the agreement fails to meet the third prong.
The Elk Hills Reserve is located in Kern County, California, and originated from a 1912 Executive Order.