23 F.4th 288
4th Cir.2022Background
- West Virginia State University (WVSU) owns property adjacent to a 433‑acre industrial site (the Institute Facility) where Union Carbide/other private companies operated chemical manufacturing and wastewater units; EPA oversight and RCRA corrective‑action permitting have governed remediation since the 1980s.
- From 2013–2016 EPA‑supervised investigations (via contractor CH2M Hill) detected VOCs migrating from the Facility onto WVSU property and recommended environmental covenants (restrict groundwater use and prohibit residential reuse) as the chosen remedial measure.
- EPA approved the remedial proposal (RCRA corrective action) and issued a permit; the proposed remedy for WVSU depended on WVSU’s consent to an environmental covenant, which WVSU refused unless compensated.
- WVSU sued in state court asserting only state‑law claims (negligence, nuisance, trespass, strict liability, unjust enrichment, declaratory/injunctive relief), seeking additional remedial measures and damages beyond EPA‑approved steps.
- Defendants removed to federal court invoking federal‑officer removal (28 U.S.C. § 1442) and federal‑question jurisdiction (28 U.S.C. § 1331); the district court remanded for lack of subject‑matter jurisdiction and the Fourth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument (WVSU) | Defendant's Argument (Dow/UCC) | Held |
|---|---|---|---|
| Whether § 1442 federal‑officer removal applies ("acting under" a federal officer) | WVSU: defendants were not acting under EPA control; they merely complied with RCRA and EPA oversight | Dow/UCC: long‑standing EPA direction/supervision of corrective actions means defendants acted under EPA and removal is proper | Court: No — defendants were complying with RCRA regulation, not performing tasks the government would have itself performed; § 1442 inapplicable |
| Whether defendants have a colorable federal defense (preemption) | WVSU: colorable defense irrelevant if § 1442 not satisfied; preemption not established | Dow/UCC: compliance with EPA/RCRA creates a colorable federal preemption defense | Court: Assumed colorable defense would exist only if acting‑under prong met; did not reach merits because acting‑under failed |
| Whether federal‑question jurisdiction exists because suit challenges EPA‑ordered cleanup (CERCLA/RCRA) | WVSU: claims arise under state law and do not challenge a CERCLA cleanup or raise necessarily federal questions | Dow/UCC: plaintiff’s claims effectively attack EPA remedial decision and thus raise substantial federal issues and implicate CERCLA/RCRA | Court: No — EPA did not order a CERCLA cleanup; the remedy was a RCRA corrective action and WVSU’s state claims do not necessarily raise substantial federal issues under Grable/Gunn |
| Whether RCRA or EPA actions preempt state‑law claims / create federal jurisdiction (Grable) | WVSU: RCRA includes a savings clause preserving state common‑law claims; state courts can adjudicate negligence/nuisance/trespass | Dow/UCC: RCRA/CERCLA scheme and EPA approvals compel federal jurisdiction and preemption | Court: No preemption; RCRA’s citizen‑suit savings clause preserves state claims and adjudication won’t disrupt federal‑state balance; federal jurisdiction not proper |
Key Cases Cited
- Watson v. Philip Morris Cos., 551 U.S. 142 (private compliance with federal regulation does not by itself satisfy "acting under")
- Willingham v. Morgan, 395 U.S. 402 (purpose of federal‑officer removal is to protect federal operations and defenses)
- Jefferson Cty. v. Acker, 527 U.S. 423 (causal nexus requirement for § 1442 removal)
- Mesa v. California, 489 U.S. 121 (limitations of well‑pleaded complaint rule and removal principles)
- Grable & Sons Metal Prods. v. Darue Eng’g, 545 U.S. 308 (test for when a state law claim "necessarily raises" a federal issue)
- Gunn v. Minton, 568 U.S. 251 (clarifying the substantial‑and‑capable‑of‑resolution factors for federal‑question jurisdiction over state claims)
- City of Baltimore v. BP P.L.C., 952 F.3d 452 (Fourth Circuit on limits of § 1442 and reviewability of remand orders)
- Ripley v. Foster Wheeler LLC, 841 F.3d 207 (Fourth Circuit on reviewing removal and federal‑officer removal standards)
- Sawyer v. Foster Wheeler LLC, 860 F.3d 249 (Fourth Circuit applying § 1442 elements to private contractors)
- Burlington N. & Santa Fe Ry. Co. v. United States, 556 U.S. 599 (describing CERCLA cleanup and federal interest in remediation)