In Re DEEPWATER HORIZON, 745 F.3d 157

Background

The Deepwater Horizon blowout (Macondo well, April 2010) released oil from an Outer Continental Shelf (OCS) drilling operation, contaminating Gulf coastal and state waters and harming wildlife.
Eleven Louisiana parishes sued BP and other defendants under Louisiana’s Wildlife Protection Statute seeking civil penalties for injury to fish, wild birds, and aquatic life.
Defendants removed the suits to federal court invoking OCSLA jurisdiction; district court denied remand and later dismissed the Parishes’ state-law penalty claims as preempted by federal law.
The Fifth Circuit reviewed de novo whether removal under OCSLA was proper and whether federal law preempted the Parishes’ Wildlife Statute claims.
Court held OCSLA removal was proper because the injuries occurred "but for" the OCS drilling operation; choice-of-law analysis required application of federal law (OCSLA or maritime law).
Applying Clean Water Act (CWA) preemption principles from International Paper Co. v. Ouellette and the Oil Pollution Act (OPA) framework, the court concluded federal law preempted the Parishes’ state penalty claims and affirmed dismissal.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Removal jurisdiction under OCSLA (43 U.S.C. § 1349/§ 1333)	Parishes: injuries occurred in state waters only; no "arising out of or in connection with" OCS operations	Defendants: but‑for causation from OCS drilling satisfies OCSLA; removal proper	Removal proper — OCSLA jurisdiction met by but‑for connection
Choice of law (whether state Wildlife Statute applies)	Parishes: locus of injury in state waters preserves state police power; OCSLA choice‑of‑law inapplicable	Defendants: OCSLA (or maritime law) governs; federal law applies as law of the point source	Federal law (OCSLA or admiralty) governs; state law displaced
CWA preemption of affected‑state claims (Ouellette)	Parishes: Ouellette limited to NPDES/point‑source permitting and interstate state‑to‑state pollution; savings provisions preserve state penalties	Defendants: Ouellette bars affected states from imposing their laws on an out‑of‑state (or OCS) point source; uniform federal scheme required	Ouellette controls; CWA preempts application of affected‑state law to OCS point source
Applicability of CWA §1321(o) and OPA §2718(c) (savings clauses)	Parishes: savings clauses preserve state penalty claims even for OCS‑origin discharges	Defendants: savings clauses do not overcome CWA preemption as interpreted in Ouellette; statutory text and structure limit their reach	Savings clauses do not preserve the Parishes’ Wildlife Statute penalties against OCS point source; preemption remains

Key Cases Cited

Oviedo v. Hallbauer, 655 F.3d 419 (5th Cir. 2011) (standard: de novo review of remand and subject‑matter jurisdiction)
O’Hara v. Gen. Motors Corp., 508 F.3d 753 (5th Cir. 2007) (preemption summary‑judgment review de novo)
Tenn. Gas Pipeline v. Hous. Cas. Ins. Co., 87 F.3d 150 (5th Cir. 1996) (broad reading of OCSLA jurisdiction)
EP Operating Ltd. P’ship v. Placid Oil Co., 26 F.3d 563 (5th Cir. 1994) (OCSLA’s expansive substantive reach)
Hufnagel v. Omega Serv. Indus., Inc., 182 F.3d 340 (5th Cir. 1999) (but‑for test for OCSLA jurisdiction)
Recar v. CNG Producing Co., 853 F.2d 367 (5th Cir. 1988) (application of OCSLA to injury connected to OCS operations)
Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473 (1981) (all law applicable to OCS is federal law)
Int’l Paper Co. v. Ouellette, 479 U.S. 481 (1987) (CWA preemption: affected states cannot apply their law to out‑of‑state point sources)
Arkansas v. Oklahoma, 503 U.S. 91 (1992) (affirming Ouellette’s reach regarding interstate discharges)
Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527 (1995) (tests for admiralty jurisdiction applicability to damage claims)
Union Tex. Petroleum Corp. v. PLT Eng’g, Inc., 895 F.2d 1043 (5th Cir. 1990) (PLT test for OCSLA choice‑of‑law—recognized as limited)