No. 13-1424

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

IN THE

Supreme Court of the United States ————

STATE OF LOUISIANA EX REL. CHARLES J. BALLAY, DISTRICT ATTORNEY FOR THE

PARISH OF PLAQUEMINES, ET AL., Petitioners,

v.

BP EXPLORATION & PRODUCTION, INC., ET AL., Respondents.

————

On Petition for a Writ of Certiorari to the United States Court of Appeals

for the Fifth Circuit

————

BRIEF IN OPPOSITION OF HALLIBURTON ENERGY SERVICES, INC.

———— JEFFREY A. LAMKEN MARTIN V. TOTARO MOLOLAMKEN LLP The Watergate, Suite 660 600 New Hampshire Ave., NW Washington, D.C. 20037 (202) 556-2000

ANDREW R. DEVOOGHT MOLOLAMKEN LLP 300 N. LaSalle Street Chicago, IL 60654 (312) 450-6700

DONALD E. GODWIN Counsel of Record

MELISSA J. SWINDLE GODWIN LEWIS PC 1201 Elm, Suite 1700 Dallas, TX 75270-2041 (214) 939-4400 Don.Godwin@GodwinLewis.com

R. ALAN YORK MISTY HATAWAY-CONÉ GODWIN LEWIS PC 1331 Lamar, Suite 1665 Houston, TX 77010 (713) 595-8300

Counsel for Respondent Halliburton Energy Services, Inc.

(i)

QUESTION PRESENTED Petitioners seek to impose penalties under a state law

statute for injuries to wildlife and natural resources arising from an oil spill that originated on the Outer Continental Shelf, fifty miles off the Louisiana coast and well beyond state territorial waters.

The question presented is:

Whether the Fifth Circuit erred in determining that federal law, not state law, governs oil pollution claims arising from a federally controlled point source far outside State borders.

ii

CORPORATE DISCLOSURE STATEMENT Pursuant to this Court’s Rule 29.6, respondent

Halliburton Energy Services, Inc. (“HESI”) is 100 percent owned by its parent corporation, Halliburton Company, a publicly traded company. No other publicly held company owns 10% or more of its stock.

(iii)

TABLE OF CONTENTS

Page Statement ...................................................................... 1

I. Statutory and Historical Background .......... 1 A. Early Federal Common Law ................... 1 B. Federal Statutory Law ............................. 2

1. The Outer Continental Shelf Lands Act (“OCSLA”) ........................ 2

2. The Clean Water Act (“CWA”) ................................................ 3

3. The Oil Pollution Act (“OPA”) ................................................. 5

II. Proceedings Below .......................................... 5 A. The Macondo Oil Spill and

Resulting Litigation .................................. 5 B. District Court Proceedings ...................... 7 C. The Fifth Circuit’s Decision ..................... 8

Reasons for Denying the Petition ............................. 11 I. The Petition Identifies No Important and

Recurring Issue Warranting This Court’s Review ............................................................... 12 A. There Is No Conflict with the

Decisions of Any Other Court of Appeals or This Court............................... 12

B. The Issue Raised Is Neither Important Nor Recurring ........................ 14

II. The Decision Below Is Correct ...................... 17 A. The Decision Below Correctly

Ruled That the CWA Preempts State Law.................................................... 17

iv

TABLE OF CONTENTS—Continued Page

B. The Savings Clauses Cannot Preserve Regulatory Authority States Never Had ...................................... 24 1. OPA’s Savings Clauses Do Not

Preserve Petitioners’ Claims ............. 24 2. The CWA’s Savings Clauses Do

Not Preserve Petitioners’ Claims ................................................... 27

III. This Case Is a Poor Vehicle ........................... 29 A. Petitioners’ Claims Invoke

Federal Jurisdiction and Arise Under General Maritime Law .............. 29

B. Petitioners’ Claims Are Displaced by OPA ..................................................... 31

Conclusion ..................................................................... 33

v

TABLE OF AUTHORITIES

Page(s)

CASES

Askew v. Am. Waterways Operators, Inc., 411 U.S. 325 (1973) .................... 13, 14, 22, 23

Baldwin v. Fish & Game Comm’n, 436 U.S. 371 (1978) ............................................. 13

City of Milwaukee v. Illinois, 451 U.S. 304 (1981) ..................................... 3, 18, 31

Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437 (1987) .................................... 27

Douglas v. Seacoast Prods., Inc., 431 U.S. 265 (1977) ............................................. 13

E. River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858 (1986) .................... 30

EP Operating Ltd. P’ship v. Placid Oil Co., 26 F.3d 563 (5th Cir. 1994) ........................ 30

Gabarick v. Laurin Mar. (Am.) Inc., 623 F. Supp. 2d 741 (E.D. La. 2009) ........ 31, 32

Global Reinsurance Corp. v. Equitas Ltd., 969 N.E.2d 187 (N.Y. 2012) ..................... 16

Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473 (1981) ..................................... 2, 3, 9

Hillsborough County v. Automated Med. Labs., Inc., 471 U.S. 707 (1985) ........................ 18

Illinois v. City of Milwaukee, 406 U.S. 91 (1972) ......................................... 2, 15

Int’l Paper Co. v. Ouellette, 479 U.S. 481 (1987) .............................................................. passim

Just v. Chambers, 312 U.S. 383 (1941) ................. 14 Lacoste v. Dep’t of Conservation,

263 U.S. 545 (1924) ....................................... 12, 13

vi

TABLE OF AUTHORITIES—Continued

Page(s)

Missouri v. Illinois, 200 U.S. 496 (1906) ............. 1, 2 Morrison v. Nat’l Austl. Bank Ltd.,

561 U.S. 247 (2010) ............................................. 16 N.J. Retail Merchs. Ass’n v. Sidamon-

Eristoff, 669 F.3d 374 (3d Cir. 2012) ............... 15 Nat’l Shipping Co. of Saudi Arabia v.

Moran Mid-Atlantic Corp., 924 F. Supp. 1436 (E.D. Va. 1996) ................... 32

New Jersey v. City of New York, 283 U.S. 473 (1931) ............................................. 2

Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207 (1986) ............................................. 14

Pac. Operators Offshore, LLP v. Valladolid, 132 S. Ct. 680 (2012) ...................... 16

S. Port Marine, LLC v. Gulf Oil Ltd. P’ship, 234 F.3d 58 (1st Cir. 2000) ........... 31, 32

Sullivan v. Oracle Corp., 254 P.3d 237 (Cal. 2011) ............................................................ 16

Tenn. Gas Pipeline v. Houston Cas. Ins. Co., 87 F.3d 150 (5th Cir. 1996) ................ 16, 30

United States v. Am. Commercial Lines, LLC, No. 13-30358, 2014 WL 3511882 (5th Cir. July 16, 2014) .............................. 31, 33

United States v. Locke, 529 U.S. 89 (2000) .......... 26

STATUTES Act of Aug. 5, 1886, ch. 929, § 3,

24 Stat. 329 .......................................................... 15 Act of Mar. 3, 1899, ch. 425, § 13,

30 Stat. 1152 ........................................................ 15 26 U.S.C. § 9509 ....................................................... 25

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Clean Water Act, Pub. L. No. 92-500, 86 Stat. 816 (codified as amended at 33 U.S.C. §§ 1251 et seq.) ........................... passim

33 U.S.C. § 1251 .............................................. 28 33 U.S.C. § 1321 ...................................... 5, 20, 23 33 U.S.C. § 1321(b) ................................. 10, 21 33 U.S.C. § 1321(b)(7)(A) ............................... 3 33 U.S.C. § 1321(o) ........................... 4, 20, 27, 28 33 U.S.C. § 1321(o)(1) .......................... 4, 11, 28 33 U.S.C. § 1321(o)(2) ....................... 4, 11, 28, 29 33 U.S.C. § 1321(o)(3) .......................... 4, 11, 29 33 U.S.C. § 1342 ...................................... 4, 20

Oil Pollution Act of 1990, Pub. L. No. 101-380, 104 Stat. 484 (codified as amended at 33 U.S.C. §§ 2701 et seq.) ..... passim

33 U.S.C. § 2701(20) ............................... 5, 32 33 U.S.C. § 2702(b)(2) .................................... 23 33 U.S.C. § 2702(b)(2)(A) ....................... 5, 32 33 U.S.C. § 2702(b)(2)(D) ............................... 21 33 U.S.C. § 2706 .............................................. 5 33 U.S.C. § 2706(d)(3) .................................... 32 33 U.S.C. § 2718 ...................................... 24, 25 33 U.S.C. § 2718(a) ......................................... 25 33 U.S.C. § 2718(a)(1) ..................................... 25 33 U.S.C. § 2718(a)(1)(A) ....................... 25, 26 33 U.S.C. § 2718(b) ......................................... 25 33 U.S.C. § 2718(c) ............................ 24, 25, 26, 27 33 U.S.C. § 2718(c)(2) ............................. 5, 11

viii

TABLE OF AUTHORITIES—Continued

Page(s)

33 U.S.C. § 2751(e) ......................................... 32 Outer Continental Shelf Lands Act,

Pub. L. No. 83-212, 67 Stat. 462 (codified as amended at 43 U.S.C. §§ 1331 et seq.) ............................................. passim

43 U.S.C. § 1331(k)(2) .................................... 3 43 U.S.C. § 1331(l) .......................................... 3 43 U.S.C. § 1332(2) ......................................... 30 43 U.S.C. § 1333(a)(1) .......................... 2, 15, 30 43 U.S.C. § 1333(a)(1)(A) ............................... 30 43 U.S.C. § 1333(a)(2)(A) ............................... 3 43 U.S.C. § 1349 .............................................. 30 43 U.S.C. § 1349(b)(1) ......................... 3, 7, 8

La. Rev. Stat. 56:40.1 ...................................... passim

LEGISLATIVE MATERIALS S. Rep. No. 101-94 (1989) ....................................... 5

OTHER AUTHORITIES Gressman et al., Supreme Court Practice

(9th ed. 2007) ....................................................... 12

IN THE

Supreme Court of the United States ————

NO. 13-1424

STATE OF LOUISIANA EX REL. CHARLES J. BALLAY, DISTRICT ATTORNEY FOR THE

PARISH OF PLAQUEMINES, ET AL., Petitioners,

v.

BP EXPLORATION & PRODUCTION, INC., ET AL., Respondents.

————

On Petition for a Writ of Certiorari to the United States Court of Appeals

for the Fifth Circuit ————

BRIEF IN OPPOSITION ————

STATEMENT This case concerns the law governing environmental

harm from an oil spill that originated in the Outer Continental Shelf (“OCS”), deep within waters long regulated by federal law.

I. STATUTORY AND HISTORICAL BACKGROUND A. Early Federal Common Law

For at least a century, federal law—even in the absence of a federal statute—has governed pollution that originates outside State boundaries. In Missouri v. Illinois, 200 U.S. 496 (1906), for example, this Court

2

addressed whether Missouri could bring a federal common law claim against Illinois alleging that Chicago sewage had poisoned the Mississippi River. Id. at 517. The Court declined to grant relief, citing deficiencies in the complaint. Id. at 526. But the Court stated that “[w]hat the future may develop, of course we cannot tell.” Ibid. In New Jersey v. City of New York, 283 U.S. 473 (1931), this Court expressly recognized a federal common law action against New York City based on allegations that the City “dump[ed] noxious, offensive and injurious materials * * * into the ocean” that had washed up on New Jersey’s beaches. Id. at 476.

Federal common law precluded States from attempting to enforce their own local laws to regulate contamination that originated outside the States’ boundaries. As the Court explained in Illinois v. City of Milwaukee, 406 U.S. 91 (1972) (Milwaukee I), “[w]hen we deal with air and water in their ambient or interstate aspects, there is a federal common law.” Id. at 103. Thus, “it [wa]s federal, not state, law that in the end control[led] the pollution of interstate or navigable waters.” Id. at 102.

B. Federal Statutory Law Beginning in the second half of the 20th century,

Congress enacted a series of federal statutes to regulate environmental contamination, often displacing formerly governing federal common law.

1. The Outer Continental Shelf Lands Act (“OCSLA”)

In 1953, Congress enacted the Outer Continental Shelf Lands Act, 67 Stat. 462, codified as amended at 43 U.S.C. §§ 1331 et seq. OCSLA “declares the [OCS] to be an area of ‘exclusive federal jurisdiction.’ ” Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 479 (1981) (quoting 43

3

U.S.C. § 1333(a)(1)). OCSLA provides jurisdiction over “cases and controversies arising out of, or in connection with * * * any operation conducted on the [OCS] which involves exploration, development, or production of the minerals, of the subsoil and seabed of the [OCS], or which involves rights to such minerals.” 43 U.S.C. § 1349(b)(1); see also id. § 1331(k)(2), (l).

Congress enacted OCSLA “in the wake of decisions” holding “that the Federal Government enjoyed sov-ereignty and ownership of the seabed and subsoil of the [OCS] to the exclusion of adjacent States.” Gulf Offshore, 453 U.S. at 479 n.7. “[T]he purpose of OCSLA was ‘to assert the exclusive jurisdiction and control of the Federal Government of the United States over the seabed and subsoil of the [OCS], and to provide for the development of its vast mineral resources.’ ” Ibid. (quoting S. Rep. No. 411, 83d Cong., 1st Sess., 2 (1953)).

When there is a gap in federal law, OCSLA allows the borrowing of state law to serve as governing federal law under certain circumstances. But Congress has deter-mined that such borrowing may occur only where state law is “not inconsistent with * * * other Federal laws and regulations.” 43 U.S.C. § 1333(a)(2)(A). Otherwise, fed-eral law controls.

2. The Clean Water Act (“CWA”) Enacted in 1972, the CWA imposes civil penalties on

“[a]ny person who is the owner, operator, or person in charge of any vessel, onshore facility, or offshore facility from which oil or a hazardous substance” is wrongfully discharged. 33 U.S.C. § 1321(b)(7)(A). In City of Milwaukee v. Illinois, 451 U.S. 304 (1981) (Milwaukee II), this Court determined that the CWA “supplanted federal common law.” Id. at 310 n.4. Under the CWA, “[e]ven though it may be harmed by the discharges, an

4

affected State only has an advisory role in regulating pollution that originates beyond its borders.” Int’l Paper Co. v. Ouellette, 479 U.S. 481, 490 (1987). The CWA thus “precludes a court from applying the law of an affected State against an out-of-state source.” Id. at 494.

The CWA also establishes the National Pollutant Dis-charge Elimination System (“NPDES”) to place oper-ating restrictions on potential sources of water pollution. See 33 U.S.C. § 1342. NPDES permits set the maximum amount of covered pollutants that the permit-holder may discharge. Ibid.

The CWA contains limited savings clauses. See 33 U.S.C. § 1321(o). Section 1321(o)(1) provides that “[n]oth-ing in this section shall affect or modify in any way the obligations of any owner or operator of any vessel, or of any owner or operator of any onshore facility or offshore facility to any person or agency under any provision of law for damages to any * * * property resulting from a discharge of any oil or hazardous substance or from the removal of any such oil or hazardous substance.” 33 U.S.C. § 1321(o)(1) (emphasis added). Section 1321(o)(2) states that “[n]othing in this section shall be construed as preempting any State or political subdivision thereof from imposing any requirement or liability with respect to the discharge of oil or hazardous substance into any waters within such State, or with respect to any removal activities related to such discharge.” Id. § 1321(o)(2) (emphasis added). And § 1321(o)(3) declares that “[n]oth-ing in this section shall be construed as affecting or modifying any other existing authority of any Federal department, agency, or instrumentality, relative to onshore or offshore facilities under this chapter or any other provision of law, or to affect any State or local law not in conflict with this section.” Id. § 1321(o)(3) (empha-

5

sis added). By their own terms, these savings clauses do not preserve state law from preemption by federal law other than in “this section,” i.e., § 1321, of the CWA.

3. The Oil Pollution Act (“OPA”) Following the Exxon Valdez oil spill, Congress

enacted the Oil Pollution Act of 1990, 33 U.S.C. §§ 2701 et seq. Under OPA, parties—including States—may re-cover from a responsible party “[d]amages for injury to, destruction of, loss of, or loss of use of, natural resources.” 33 U.S.C. § 2702(b)(2)(A). Congress passed OPA to “build[ ] upon” the CWA and “create a single Federal law providing cleanup authority, penalties, and liability for oil pollution.” S. Rep. No. 101-94, at 9 (1989).

OPA contains a limited savings clause. It states that “[n]othing in this Act * * * shall in any way affect * * * the authority of the United States or any State or political subdivision thereof * * * to impose * * * any fine or penalty (whether criminal or civil in nature) for any violation of law * * * relating to the discharge * * * of oil.” 33 U.S.C. § 2718(c)(2) (emphasis added). OPA also con-tains extensive provisions addressing environmental harms—injuries to “natural resources”—detailing who may bring suit, which monetary recoveries are available, and the permissible uses of any sums recovered. 33 U.S.C. §§ 2701(20), 2706.

II. PROCEEDINGS BELOW A. The Macondo Oil Spill and Resulting Litiga-

tion Petitioners’ alleged claims arise from the April 20,

2010 blowout and explosion of the Macondo well in the Gulf of Mexico, approximately fifty miles off the Louisi-ana coast. Pet. App. 1a-3a, 5a. The Macondo well was being drilled by the mobile offshore drilling unit

6

Deepwater Horizon, owned by Respondent Transocean.1 Pet. 6. Respondent BP was the owner and operator of a lease to conduct exploration, development, and produc-tion activities in the Macondo prospect.2 See id. at 5-6. HESI’s involvement with the Macondo well primarily focused on cement design and testing. See id. at 6.

As a result of the blowout, explosion, fire, and subsequent sinking of the Deepwater Horizon, oil was released into the Gulf of Mexico, ultimately affecting the coasts and wetlands of several Gulf States. Pet. App. 2a-3a. Following the incident, thousands of cases filed against BP, Transocean, HESI, and other defendants were transferred and consolidated for case management by the Judicial Panel on Multidistrict Litigation to the Eastern District of Louisiana. Ibid. Among those were lawsuits filed in Louisiana state court by eleven Louisiana Parishes “to recover penalties under the Louisiana Wildlife Protection Statute (‘Wildlife Statute’) for the pollution-related loss of aquatic life and wildlife.” Id. at 1a-2a (citing La. Rev. Stat. 56:40.1).3 The Wildlife Statute purports to impose “civil penalties” against any “person who kills * * * or injures any * * * wildlife and

1 “Transocean” refers to Transocean Deepwater, Inc., Transocean Offshore Deepwater Drilling, Inc., Transocean Holdings, LLC, and Transocean Ltd. Pet. App. 1a. 2 “BP” refers to BP America Production Co., BP Exploration and Production, Inc., BP Products North America, Inc., and BP p.l.c. Pet. App. 1a. 3 Some petitioners did not file claims against HESI. Pet. 7 n.1. According to petitioners, the court-appointed plaintiffs’ steering committee’s Master Complaint urged claims on behalf of all petitioners against all defendants. Ibid. HESI disputes the effect of that complaint on HESI’s status as a party to petitioners’ claims.

7

aquatic life in violation of ” state or federal law. La. Rev. Stat. 56:40.1.

B. District Court Proceedings The district court organized the various claims into

pleading bundles, placing petitioners’ claims into Plead-ing Bundle “C,” which encompassed public monetary claims. Pet. App. 4a, 35a-36a. Although some petitioners filed motions to remand, the court upheld its removal jurisdiction, stating that “it is clear that original juris-diction rests with” the court under 43 U.S.C. § 1349(b)(1), OCSLA’s jurisdictional provision, even though petition-ers had alleged only a cause of action for penalties accruing under state law. Pet. App. 155a.

In a later order addressing motions to dismiss non-governmental economic and property damage claims (Pleading Bundle “B1”), the court ruled that the case also fell within its federal admiralty jurisdiction because: (1) the alleged torts occurred in navigable waters; and (2) the operations of the Deepwater Horizon, a vessel in navigation, “bore a substantial relationship to traditional maritime activity.” Pet. App. 102a-103a. The court further held that because the case fell within federal admiralty jurisdiction, substantive maritime law applied. Id. at 103a.

The district court later turned to the public monetary claims (Pleading Bundle “C”). The court held that Alabama’s and Louisiana’s claims under state law were preempted by the CWA. Pet. App. 60a-77a. The court ruled that, under Ouellette, “only the law of the source State and federal law may apply.” Id. at 68a. Because “the source of this discharge occurred within an exclusive federal jurisdiction, the OCS, the only available law is federal law.” Id. at 69a. The court also noted that “an NPDES permit regulated BP’s discharges” on the OCS.

8

Id. at 66a-67a. The court likewise dismissed petitioners’ Wildlife Statute claims. Id. at 45a. The court stated that, just as the States’ claims were preempted, petitioners’ claims under the state Wildlife Statute were preempted as well. Id. at 43a n.5.

C. The Fifth Circuit’s Decision A panel of the Fifth Circuit unanimously affirmed.

Pet. App. 1a-33a.

The Fifth Circuit first rejected petitioners’ argument that OCSLA did not provide federal jurisdiction over their claims. Pet. App. 5a-8a. OCSLA provides jurisdic-tion over “cases and controversies arising out of, or in connection with * * * any operation conducted on the [OCS] which involves exploration, development, or pro-duction of the minerals, of the subsoil and seabed of the [OCS], or which involves rights to such minerals.” 43 U.S.C. § 1349(b)(1). The court noted that it “cannot be contested” that the oil spill occurred because of “ ‘operations’ in exploring for and producing oil on the [OCS].” Pet. App. 6a. And the court rejected petitioners’ assertion that their claims did not “ar[i]se out of or in connection with the oil production operation.” Ibid. Because it was “undeniable” that oil and other contaminants would not have entered Louisiana waters but for the Macondo drilling and exploration operation, id. at 7a, federal jurisdiction extended to petitioners’ claims.

The Fifth Circuit then addressed “whether [Louisi-ana’s] Wildlife Statute’s penalties can be applied against” respondents for damage resulting from the oil spill, ruling that “[f]ederal law covers the disaster in two ways.” Pet. App. 9a, 12a. First, “pursuant to OCSLA, ‘[a]ll law applicable to the [OCS] is federal law,’ and all cases ‘involving events occurring on the Shelf [are]

9

governed by federal law.’ ” Id. at 12a (quoting Gulf Offshore, 453 U.S. at 480-481). Second, “maritime law applies here because the Deepwater Horizon is a vessel.” Id. at 13a. “[E]ither regime,” the court explained, “in-cludes the federal statutes regulating water pollution and oil pollution. ” Id. at 14a.

The court explained that, “had the blowout occurred in Texas state waters and caused pollution in Louisiana, [petitioners’] Louisiana law claims would be squarely foreclosed.” Pet. App. 14a. Preemption would have applied under federal common law because States do not have “historic police powers to apply their local law to interstate water pollution [where] the pollution origi-nated outside the state.” Id. at 20a. Rather, States “had to rely on the common body of federal law” to vindicate their rights. Id. at 20a-21a; see pp. 1-2, supra.

The result, the court ruled, remains the same under federal statutory law. Discussing this Court’s decision in Ouellette, the court of appeals explained that “the enact-ment of the federal CWA displaced federal common law” but “retain[ed] primary federal responsibility to elimi-nate water pollution.” Pet. App. 15a. Consequently, the “ ‘CWA precludes a court from applying the law of an affected State against an out-of-state source.’ ” Ibid. (quoting Ouellette, 479 U.S. at 494). Because the oil discharge at issue here occurred on the OCS—an out-of-state source—the court held that Ouellette controls. Ibid.

The court of appeals rejected petitioners’ attempt to distinguish Ouellette as involving water pollution, not oil pollution. This Court’s decision in Ouellette, the Fifth Circuit reasoned, “speaks plainly: ‘We hold that when a court considers a State-law claim concerning interstate water pollution that is subject to the CWA, the court

10

must apply the law of the state in which the point source is located.’ ” Pet. App. 23a (quoting Ouellette, 479 U.S. at 487). Otherwise, multiple States could apply multiple laws to the same (out-of-state) conduct. The court also noted that Ouellette involved an alleged permit violation, and “[a] permit violation constitutes a ‘discharge’ prohibited by Section 1321(b).” Ibid. Ouellette’s “logic must extend to oil discharges,” the court explained, because oil discharges “are illegal under the same provision.” Ibid. The point source here—the OCS—is a federal enclave, and federal law therefore controls. Ibid.

The decision below also rejected, as a “weaker argu-ment,” petitioners’ contention that Ouellette does not apply because the point source in that case was another State rather than a federal enclave. Pet. App. 24a. “Allowing up to five states along the Gulf Coast to apply their individual laws,” the court stated, “would foster the legal chaos described by Ouellette.” Ibid. Because “[t]he reasons for avoiding redundant or conflicting legal regimes are equally potent whether the point source is located in a state or a federal enclave,” Ouellette squarely applies. Id. at 24a-25a.

Finally, the Fifth Circuit rejected petitioners’ reliance on the CWA’s and OPA’s savings clauses. The court ruled that, “[w]ith Ouellette as the controlling law, there are no state remedies to ‘save.’ ” Pet. App. 25a. The savings clauses, the court stated, cannot “create state law claims.” Ibid. The clauses merely “preserve” them. Ibid. Because OPA and CWA “furnish[ ] a comprehen-sive remedial regime” for pollution originating in a federal enclave, there are no state laws to preserve. Ibid.

The court also found the savings clauses “powerless to ‘save’ [petitioners’] claims under the Wildlife Statute” for “additional reasons.” Pet. App. 26a. The CWA’s savings

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clauses, by their own terms, do not apply. Section 1321(o)(1) applies only to claims for “damages,” not “penalties” that the Wildlife Statute contemplates. Id. at 27a. Section 1321(o)(2) applies only to claims for the “discharge of oil or hazardous substance into any waters within such State”; this case concerns a discharge into waters well beyond the State. Id. at 26a-27a (emphasis added). And Section 1321(o)(3), a “catch-all provision, saves state laws not in conflict with the section itself.” Id. at 27a. The court explained that reading the catch-all to extend state authority into discharges outside of state waters would be inconsistent with the immediately preceding provision, which expressly limited savings to discharges into waters within the State. “To construe the catch-all harmoniously with Section 1321(o)(2), which is limited to discharges within state waters, and avoid rendering the companion provision superfluous, the catch-all must be similarly limited.” Ibid.

The decision also rejected petitioners’ reliance on OPA’s savings clause. OPA’s savings clause, the court explained, “does not apply beyond * * * OPA itself and two other laws,” not including the CWA. Pet. App. 29a; see 33 U.S.C. § 2718(c)(2). Under petitioners’ construc-tion, OPA’s savings clause would “ ‘supersede’ the CWA and Ouellette by allowing all affected states to layer their unique penalty and regulatory laws on top of those governing this OCSLA blowout.” Pet. App. 30a. But “the result would be an implied repeal of CWA preemption,” and implied repeals are “disfavored.” Ibid.

REASONS FOR DENYING THE PETITION The decision below does not conflict with any decision

of this Court or any court of appeals. The question pre-sented is neither important nor recurring. Indeed, the decision below is the first to address it. As a result, this

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Court’s consideration of the issue would be premature. The decision below is, in any event, correct, and this case presents an inadequate vehicle for the issue’s further consideration.

I. THE PETITION IDENTIFIES NO IMPORTANT AND RE-CURRING ISSUE WARRANTING THIS COURT’S REVIEW A. There Is No Conflict with the Decisions of Any

Other Court of Appeals or This Court The court of appeals held that the CWA preempts

state-law penalties for harm to wildlife resulting from oil spills that originate in the OCS, waters subject to exclusive federal control. Petitioners do not contend that, in so holding, the decision below created a conflict with the decision of any other court of appeals. Petitioners, in fact, do not cite any other court of appeals decision that has even addressed the issue. Nor do they show intolerable uncertainty in the law that might warrant this Court’s immediate intervention.

To the contrary, as the petition makes clear, the decision below is the first to have addressed this issue, which alone makes review by this Court premature. This Court regularly declines to review issues—even important ones—until multiple courts of appeals have had the opportunity to address them “so [this Court] can avail itself of the wisdom of other courts before settling” the matter. Gressman et al., Supreme Court Practice 504 (9th ed. 2007).

Unable to find a circuit conflict, petitioners claim the decision below conflicts with decisions of this Court. There is no conflict with Lacoste v. Department of Conservation, 263 U.S. 545 (1924), Pet. 9-10, 38, which addressed Commerce Clause, due process, and equal protection challenges to a Louisiana statute assessing a severance tax on “skins taken from” the “wild fur-

13

bearing animals and alligators of this state.” 263 U.S. at 547 n.1. In rejecting those challenges, the Court did note that the protection of wildlife “is peculiarly within the police power, and the state has great latitude in determining what means are appropriate for its protection.” Id. at 552. Lacoste, however, has nothing to do with OCSLA, the CWA, OPA, or discharges into the ocean outside the State’s waters. It involved a tax on animal skins taken inside Louisiana. It thus has no bearing on whether a State is able to impose state-law penalties for injuries caused by activities in a federal enclave well beyond the State’s borders.

As this Court explained over fifty years after Lacoste, “the States’ interest in regulating and controlling those things they claim to ‘own,’ including wildlife, is by no means absolute.” Baldwin v. Fish & Game Comm’n, 436 U.S. 371, 385 (1978). “A State’s control over its re-sources” does not “preclude the proper exercise of federal power.” Id. at 386. “Under modern analysis, the question is simply whether the State has exercised its police power in conformity with the federal laws and Constitution.” Douglas v. Seacoast Prods., Inc., 431 U.S. 265, 284-285 (1977). Here, the question before the Fifth Circuit was whether the State has authority, in the face of specific federal statutes, to impose penalties for injuries that result from activities in federally regulated waters. Lacoste says nothing about that.

The claimed conflict with Askew v. American Waterways Operators, Inc., 411 U.S. 325 (1973), fares no better. See Pet. 10-12, 38. Askew concerned whether a Florida statute that “impose[d] strict liability for any damage incurred by the State or private persons as a result of an oil spill in the State’s territorial waters” was preempted by the Water Quality Improvement Act of

14

1970. 411 U.S. at 327-328. Askew, however, says nothing about pollution that does not originate within state waters.

While Askew noted that sea-to-shore pollution was “historically within the reach of the police power of the States,” 411 U.S. at 343, the Court was contemplating a statute addressing an “oil spill in the State’s territorial waters,” id. at 327 (emphasis added). In so doing, the Court noted that its previous decisions “gave broad ‘recognition of the authority of the States to create rights and liabilities with respect to conduct within their borders.’ ” Id. at 340 (quoting Just v. Chambers, 312 U.S. 383, 391 (1941) (emphasis added)). By contrast, this case concerns an accident on the OCS, an area beyond state authority and subject only to federal law. See Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 217 (1986). Askew did not address a State’s ability to regulate conduct outside its borders.

B. The Issue Raised Is Neither Important Nor Recurring

Petitioners claim that this case is important because it involves the preemption of “historic police powers” of States. Pet. 9; see also, e.g., id. at 13, 14, 15, 24. Petitioners thus urge that the Fifth Circuit improperly invaded Louisiana’s power to protect wildlife by imposing penalties on sea-to-shore pollution. Id. at 9-10. But pollution originating from outside a State’s borders has been a matter of federal law, not state law, for over a century. See pp. 1-2, supra. Even before federal statutes addressed the issue, the question was governed by federal common law. “[F]ederal, not state, law * * *

15

control[led] the pollution of interstate or navigable waters.” Milwaukee I, 406 U.S. at 102.4

The decision below made precisely that point—that, even in the absence of a federal statutory scheme, petitioners would have “had to rely on the common body of federal law” rather than state law. Pet. App. 20a-21a.5 Petitioners’ failure to offer any response is telling. While prior decisions applying federal law generally involved pollution originating in another State, petitioners nowhere explain why federal law would not likewise apply to pollution originating in an area subject to exclusive federal control. Id. at 15a. Simply put, petitioners’ claim of importance rests on the assertion of a traditional state police power—to punish injuries resulting from pollution originating outside the State’s jurisdiction—that does not exist at all.

Even if any state police power once existed, it has been preempted by federal law. A State’s police powers must give way to a lawful exercise of federal power. See p. 13, supra. Oil and gas activities on the OCS fall within an area of exclusively federal jurisdiction. See 43 U.S.C.

4 “It is undisputed that state law can be preempted by federal common law as well as federal statutes.” N.J. Retail Merchs. Ass’n v. Sidamon-Eristoff, 669 F.3d 374, 392 (3d Cir. 2012). 5 Congress has regulated in this area for well over a century. The Rivers and Harbors Act of 1899, for example, made it unlawful “to throw, discharge, or deposit” garbage from a “ship, barge, or other floating craft” into “any navigable water of the United States.” Act of Mar. 3, 1899, ch. 425, § 13, 30 Stat. 1152 (now codified at 33 U.S.C. § 407). And Congress has targeted its legislation at pollution enter-ing specific States. See Act of Aug. 5, 1886, ch. 929, § 3, 24 Stat. 329 (prohibiting the deposit of any “refuse or mill-waste of any kind” from a “wharf” or a “ship” into the “New York Harbor”). But state law had no place in regulating pollution originating from an out-of-state source.

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§1333(a)(1); Tenn. Gas Pipeline v. Houston Cas. Ins. Co., 87 F.3d 150, 153 (5th Cir. 1996) (“OCSLA is an assertion of national authority over the OCS at the expense of both foreign governments and the governments of the individual states.”); Pac. Operators Offshore, LLP v. Valladolid, 132 S. Ct. 680, 685 (2012).

Petitioners’ speculation that the issue will recur, moreover, is legally unfounded. Petitioners claim that many States regulate sea-to-shore pollution, but identify no state statutes that explicitly target contamination originating outside state territorial boundaries (much less discharges from an exclusively federal enclave). See generally Pet. 36-38. There is good reason to doubt many States would read their statutes as extending that far: Many have adopted “the presumption against extrater-ritoriality.” Morrison v. Nat’l Austl. Bank Ltd., 561 U.S. 247, 273 (2010); see, e.g., Sullivan v. Oracle Corp., 254 P.3d 237, 248 (Cal. 2011); Global Reinsurance Corp. v. Equitas Ltd., 969 N.E.2d 187, 195 (N.Y. 2012).

The expansive remedies available under federal law further undermine the need for review by this Court.6 Petitioners themselves explain that five States have asserted preempted state law claims in this case. Pet. 37-38. Petitioners express concern that, if those “States are successful in their OPA claims, they may opt not to appeal the dismissal of their state law penalty claims.” Id. at 38. But the availability of comprehensive federal remedies satisfactory to the States undermines any claim

6 For that reason, preemption of the Wildlife Statute does not “diminish the incentives for compliance with the CWA or the OPA.” Pet. App. 32a. The CWA and OPA include “extravagant penalties, fines, criminal liability, and damage exposure that may be imposed on entities associated with oil pollution.” Ibid.

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of importance, as well as the likelihood that this issue will recur.

II. THE DECISION BELOW IS CORRECT At bottom, petitioners ask this Court to review the

decision below because, in their view, it is incorrect. Petitioners contend the Wildlife Statute applies by virtue of a “conflict preemption analysis” that the Fifth Circuit purportedly “failed to conduct.” Pet. 14; but see id. at 15 (“[T]he Fifth Circuit state[s] that the State’s claims were barred by conflict preemption, * * * .”). That is a red herring. The Fifth Circuit properly determined, under conflict preemption principles, that the Wildlife Statute cannot apply to out-of-state pollution sources, much less activities on the OCS.

A. The Decision Below Correctly Ruled That the CWA Preempts State Law

The Fifth Circuit concluded that the CWA preempts petitioners’ state penalty claims under this Court’s decision in Ouellette, 479 U.S. 481. See Pet. App. 25a, 33a. Petitioners’ attempts to distinguish Ouellette lack merit.

In Ouellette, a group of Vermont property owners sued a New York company for damages, claiming that pollution the company discharged into Lake Champlain from the New York side of the lake flowed into Vermont waters, creating a “continuing nuisance” under Vermont law. 479 U.S. at 483-484. This Court concluded that the CWA preempted the lawsuit. Id. at 500.

The Court began its analysis by examining the regulatory framework imposed by the CWA. 479 U.S. at 487. The amendments enacted in connection with the CWA, it explained, were the “ ‘most comprehensive and far reaching provisions’ Congress ever had passed in this

18

area,” such that “federal legislation now occupied the field, pre-empting all federal common law.” Id. at 489 (quoting Milwaukee II, 451 U.S. at 317-318). The Court then examined one of the “primary features of the 1972 amendments,” the regulatory framework imposed by the NPDES, a federal permit program designed to regulate the discharge of pollution into navigable waters. Ibid.

The Court noted that States play a prominent role in the permit program with respect to “point sources located within the state,” including being allowed to administer the program, issue permits, and “require discharge limitations more stringent than those required by the Federal Government.” 479 U.S. at 489-490 (emphasis added). While such “source States” have “a strong voice in regulating their own pollution,” the CWA “contemplates a much lesser role” for a so-called “affected State” that shares an interstate waterway with the source State, “[e]ven though it may be harmed by the discharges.” Id. at 490. The CWA “makes it clear that affected States occupy a subordinate position to source States in the federal regulatory program.” Id. at 491. States have only an “advisory role” in regulating out-of-state pollution sources. Id. at 490.

The Court then addressed whether the CWA “pre-empts Vermont common law to the extent that law may impose liability on a New York point source.” 479 U.S. at 491. The Court noted that preemption “may be pre-sumed when the federal legislation is ‘sufficiently comp-rehensive to make reasonable inference that Congress left no room for supplementary state regulation.’ ” Ibid. (quoting Hillsborough County v. Automated Med. Labs., Inc., 471 U.S. 707, 713 (1985)). The Court further explained that a state law is preempted “to the extent

19

that it ‘actually conflicts with a * * * federal statute.’ ” Ibid.

The Court observed that in light of the CWA’s “pervasive regulation and the fact that the control of interstate pollution is primarily a matter of federal law * * * it is clear that the only state suits that remain available are those specifically preserved by the Act.” 479 U.S. at 492. “After examining the CWA as a whole, its purposes and its history,” the Court was “convinced that if affected States were allowed to impose separate discharge standards on a single point source, the inevitable result would be a serious interference with the achievement of the ‘full purposes and objectives of Congress.’ ” Id. at 493-494. For example, “[i]n this case the application of Vermont law against [the company] would allow Respondents to circumvent the NPDES permit system, thereby upsetting the balance of public and private interests so carefully addressed by the Act.” Id. at 494. “The inevitable result of such suits,” the Court explained, “would be that Vermont and other States could do indirectly what they could not do directly—regulate the conduct of out-of-state sources.” Id. at 495.

The Court further noted that such state law claims were preempted because “[a]pplication of an affected State’s law to an out-of-state source * * * would under-mine the important goals of efficiency and predictability in the permit system.” 479 U.S. at 496. The Court thus held that “when a court considers a state-law claim concerning interstate water pollution that is subject to the CWA, the court must apply the law of the State in which the point source is located.” Id. at 487 (emphasis added). The CWA “precludes a court from applying the law of an affected State against an out-of-state source.” Id. at 494.

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The Fifth Circuit properly concluded that petitioners’ state penalty claims in this case are likewise preempted by the CWA. See Pet. App. 25a, 33a. The court explained: “Congress could and did supplant federal common law with an overarching regulatory framework to protect the nation’s waters.” Id. at 21a. Thereafter, “[t]o effectuate the full purposes of the regulations, Ouellette held that the states’ ability to apply local law to out-of-state point sources of alleged water pollution was in conflict with the CWA.” Ibid. Applying Ouellette to this case, the Fifth Circuit observed that “Ouellette forms a controlling backdrop for resolving claims caused by the blowout.” Id. at 25a. “Federal law, the law of the point source, exclusively applies to the claims generated by the oil spill in any affected state or locality.” Ibid.

That ruling should be unassailable. The discharge resulting from the blowout occurred on the OCS—a federal enclave—not in any particular State’s waters. Accordingly, each of the States impacted by the oil spill, including Louisiana, is an “affected State.” Ouellette made clear that the CWA “precludes a court from applying the law of an affected State against an out-of-state source.” 479 U.S. at 494. Petitioners’ state penalty claims are preempted.

In this Court, petitioners repeat their efforts to distinguish Ouellette. Pet. 21. They argue that Ouellette did not explicitly discuss CWA § 1321(o), which relates specifically to oil spills and, according to petitioners, § 1321 excludes from its scope discharges under permits issued pursuant § 1342. Ibid. But the Court’s opinion in Ouellette “resists such limitation.” Pet. App. 23a. Rather, this Court’s holding was broad: “We hold that when a court considers a State-law claim concerning interstate water pollution that is subject to the CWA, the

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court must apply the law of the state in which the point source is located.” Ouellette, 479 U.S. at 487. This Court did not limit Ouellette to any specific provisions of the CWA, as the Fifth Circuit recognized. Pet. App. 23a (“There is no mincing about the precise preemptive provisions of the federal CWA.”).

Moreover, the decision in Ouellette rejected the Vermont property owners’ assertion that the defendant violated the terms of its NPDES permit. 479 U.S. at 498 n.18. Instead, the Court explained that the Vermont plaintiffs could bring a citizen suit under the CWA to compel compliance; they could not claim a violation to seek damages under State law. Ibid. As the Fifth Cir-cuit noted, “[a] permit violation constitutes a ‘discharge’ prohibited by Section 1321(b).” Pet. App. 23a. Accord-ingly, the Court’s reasoning in Ouellette “must extend to oil discharges, which are illegal under the same provision.” Ibid. Ouellette provides “an analogous answer” for oil discharges originating on the OCS because “the affected parties can sue for the generous remedies, including for loss of wildlife, that OPA offers.” Ibid. (citing 33 U.S.C. § 2702(b)(2)(D)).

Petitioners urge that Ouellette rested on “the needs of uniformity and furtherance of the goals of the CWA.” Pet. 18. According to petitioners, those needs and goals are not implicated here because “1) there is no permitted discharge as to which differing state standards could apply; and 2) there is no source state whose permitting process could be undermined by impacted states applying their own law.” Ibid. Petitioners thus appear to repeat their argument that there is no interference with the CWA because the discharges here were “universally unlawful,” i.e., prohibited whether one looks to state or federal law. Pet. App. 67a. But that hardly distinguishes

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Ouellette. “[F]atal to the States’ argument,” the district court below explained, “is the fact that the Vermont plaintiffs in Ouellette specifically alleged that the discharges violated the New York paper mill’s NPDES permit. In other words, like the instant matter, the discharge in Ouellette was alleged to be universally unlawful.” Pet. App. 67a-68a (emphasis added). The district court further observed that “[n]otwithstanding this allegation, the Ouellette Court concluded that the only available remedies were those provided under the source-State’s law and the CWA.” Id. at 68a. Conse-quently, even if “the discharge was universally unlawful, Ouellette’s instruction is clear: only the law of the source State and federal law may apply.” Ibid.

Nor is it any answer to argue that Ouellette dealt only with interstate water pollution, as opposed to pollution originating from a federally controlled point source. Pet. 12-13, 18. Addressing that “weaker” argument, the Fifth Circuit noted that “the federal government’s interest is no different from that of point-source states, which aim to encourage economic development while preserving optimal environmental conditions for their citizens.” Pet. App. 24a. Indeed, Ouellette’s reasoning is even stronger here, where parties seek to assert a patchwork of laws from various States to a source located well outside their territorial waters. Applying the law of every State affected by the spill would create conflicts and “foster the legal chaos” Ouellette described. Ibid.7

Petitioners urge that, “[u]nlike the permitting holding[ ] in Ouellette * * * , Askew specifically addressed

7 The district court also noted that the application of the laws of multiple States raises due process concerns, a result that can be avoided with a proper application of Ouellette. Pet. App. 76a-77a.

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oil spills and the savings provisions of Section 1321 of the CWA specific to oil spills.” Pet. 24.8 But Askew concerned discharges originating within a State’s waters. The case for preemption there is entirely different. See pp. 13-14, supra.

Ouellette, moreover, rejected petitioners’ argument that their claims would not violate federal law because they target a specific harm and their claims are not contrary to the CWA. See Pet. 22. This Court explained that the imposition of state-law damages might cause the polluter to “be compelled to adopt different or additional means of pollution control from those required by the [CWA], regardless of whether the purpose of the relief was compensatory or regulatory.” 479 U.S. at 498 n.19. Similarly here, imposing the penalties sought by petitioners would indirectly regulate drilling on the OCS. “[I]f entities engaged in developing the OCS were subjected to a multiplicity of state laws in addition to federal regulations, they could be forced to adopt entirely different operational plans or in the worst case be

8 The significance of petitioners’ reliance on Askew’s reference to the 1967 Torrey Canyon spill is unclear. According to petitioners, that spill occurred fifteen miles from the English coast and would have been outside state territorial waters had it occurred in the United States. Pet. 24 n.4. Askew mentioned the Torrey Canyon spill only in quoting a law review article discussing the impact on marine life that can be caused by oil pollution, 411 U.S. at 333 n.5, and in stating that the CWA did not provide a remedy for property owners “damaged by a massive oil slick such as hit England and France in 1967 in the Torrey Canyon disaster,” id. at 334-335. Neither reference undermines the fact that this Court in Askew addressed a statute governing “oil spill[s] in the State’s territorial waters.” Askew, 411 U.S. at 327. Besides, as a result of OPA, federal law now provides remedies for accidents like the Torrey Canyon spill. See 33 U.S.C. § 2702(b)(2); pp. 31-33, infra.

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deterred by the redundancy and lack of regulatory clarity from even pursuing their OCS plans.” Pet. App. 24a.

B. The Savings Clauses Cannot Preserve Regula-tory Authority States Never Had

Petitioners contend that any questions regarding congressional intent to preempt their claims are addressed not by “the inapposite holding in Ouellette,” but instead by the savings clauses of OPA and the CWA. Pet. 25. After disclaiming any reliance on federal law and urging that “historic police powers of the States” govern their claims, id. at 9, petitioners nonetheless rely on both OPA and the CWA in an attempt to preserve state remedies, id. at 26-36. That attempt fails. As the Fifth Circuit noted, “[w]ith Ouellette as the controlling law, there are no state remedies to ‘save.’ ” Pet. App. 25a. And the savings clauses themselves demonstrate that they do not preserve petitioners’ claims.

1. OPA’s Savings Clauses Do Not Preserve Petitioners’ Claims

Petitioners contend that their state penalty claims are expressly preserved under the savings clause found in § 2718(c) of OPA. Pet. 28-32.9 Petitioners do not rely

9 Section 2718 provides in relevant part:

(a) Preservation of State authorities; Solid Waste Disposal Act. Nothing in this Act or the Act of March 3, 1851 shall—

(1) affect, or be construed or interpreted as preempting, the authority of any State or political subdivision thereof from imposing any additional liability or requirements with respect to—

(A) the discharge of oil or other pollution by oil within such State[.]

* * *

25

upon OPA § 2718(a) or § 2718(b), and for good reason. Section 2718(a)(1) limits its application to “the discharge of oil or other pollution by oil within such state.” 33 U.S.C. § 2718(a)(1)(A) (emphasis added). Any discharge here did not occur within Louisiana waters. Likewise, Section 2718(b) is inapplicable as it retains State authority for the establishment of a fund to pay for costs or oil pollution damages.

Contrary to petitioners’ contentions, § 2718(c) does not evince an “unequivocal[ ] * * * intent to preserve the right of a State to exercise its historic police powers to protect the States’ assets and resources from pollution by unlawful oil spills, without respect to where such spills originated.” Pet. 27.10 The savings provision states that

(b) Preservation of State funds. Nothing in this Act or in

section 9509 of Title 26 shall in any way affect, or be construed to affect, the authority of any State—

(1) to establish, or to continue in effect, a fund any purpose of which is to pay for costs or damages arising out of, or directly resulting from, oil pollution or the substantial threat of oil pollution[.]

* * * (c) Additional requirements and liabilities; penalties. Nothing

in this Act, the Act of March 3, 1851 (46 U.S.C. 183 et seq.), or section 9509 Title 26, shall in any way affect, or be construed to affect, the authority of the United States or any State or political subdivision thereof— * * *

(2) to impose, or to determine the amount of, any fine or penalty (whether criminal or civil in nature) for any violation of law; relating to the discharge, or substantial threat of discharge, of oil.

33 U.S.C. § 2718. 10Section 2718(a)(1)(A) authorizes States and their political subdivisions to impose additional liability and penalties for “the discharge of oil or other pollution by oil within such State.” To

26

“[n]othing in this Act * * * shall in any way affect * * * the authority of the United States or any State [or locality] * * * to impose * * * any fine or penalty” relating to an oil discharge. 33 U.S.C. § 2718(c) (emphasis added). It does not purport to limit the effect of the CWA.

Properly understood, § 2718(c) “saves from the OPA’s diminution” certain state and federal requirements “relating to oil discharges,” but it does not restore authority already displaced by the CWA. Pet. App. 30a (emphasis added).11 Indeed, in Ouellette, the Court found that a savings clause beginning with similar “nothing in

interpret § 2718(c)’s catch-all provision to disregard this geographic limitation would render § 2718(a)(1)(A) meaningless. See also p. 29, infra (addressing the CWA’s catch-all provision). 11 Citing United States v. Locke, 529 U.S. 89 (2000), petitioners con-tend that Congress in § 2718(c) “unequivocally expressed its intent to preserve the right of a State to exercise its historic police powers to protect the States’ assets and resources from pollution by unlawful oil spills.” Pet. 27-28.Locke does not support petitioners’ assertion. There, the Court held that § 2718(c) did not save state laws regulating oil tanker “operation, design, [and] manning.” 529 U.S. at 105. The Court explained that “Congress intended to preserve state laws of a scope similar to the matters contained in Title I of OPA, not all state laws similar to the matters covered by the whole of OPA or to the whole subject of maritime oil transport.” Ibid. The Court further explained that “[t]he evident purpose of [§ 2718(c)] is to preserve state laws which, rather than imposing substantive regulation of a vessel’s primary conduct, establish liability rules and financial requirements relating to oil spills.” Ibid. As the district court below recognized, petitioners seek to draw an “overly broad interpretation” from Locke’s description of § 2718(c). Pet. App. 117a. Specifically, as the district court explained, this Court’s discussion of § 2718(c) in a case involving a “Washington statute [that] governed tankers operating in Washington state waters,” did not “declare a rule so broad as to allow state liability statutes to apply to oil spills outside of state waters.” Ibid.

27

this section” language was “by its terms limited to pre-emption caused by that section alone.” Ibid.

According to petitioners, even if the CWA preempted state penalties with respect to oil spills, “Congress superseded” the preemptive effect of the CWA as recognized in Ouellette when it enacted OPA. Pet. 29. OPA, however, was “designed to complement, not compete with the CWA.” Pet. App. 29a. As such, the CWA and OPA must be construed “in pari materia.” Ibid. Petitioners’ reading, moreover, would result in an implied repeal of the CWA’s preemptive scope. Such implied repeals are disfavored. See Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 442 (1987). Given Congress’ “presumed awareness” of Ouellette when it enacted OPA in 1990, and Congress’ “failure to change the scope of CWA preemption despite its intent generally to broaden remedies against oil pollution,” Pet. App. 31a, the Fifth Circuit correctly concluded that §2718(c) does not overrule Ouellette. Instead, § 2718(c) authorizes the point source State, if any, and its political subdivisions in certain circumstances to impose additional liability, requirements, fines, and penalties. Ibid.

2. The CWA’s Savings Clauses Do Not Preserve Petitioners’ Claims

Petitioners next contend that savings provisions in the CWA preserve their state penalty claims. Pet. 33-36. Specifically, petitioners contend that § 1321(o) “broadly preserves all state laws imposing liability for damages caused by oil spills as well as laws imposing standards not in conflict with the CWA.” Id. at 33-34.12

12Section 1321(o) provides:

(o) Obligation for damages unaffected; local authority not preempted; existing Federal authority not modified or affected.

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The plain language of the CWA savings clauses demonstrates that they cannot save petitioners’ state penalty claims. As the Fifth Circuit properly recognized, “Section 1321(o)(1) expressly saves damage claims, not penalties under the Wildlife Statute.” Pet. App. 27a (emphasis added). Section 1321(o)(1) is also irrelevant as it pertains to the obligation of an “owner or operator” of a vessel or facility. HESI is not the owner or operator of the rig or well.

With regard to § 1321(o)(2), petitioners recognize that it is limited to discharge “into any waters within such state.” Pet. 35; see 33 U.S.C. § 1321(o)(2). They likewise concede that, as a result, it cannot save state laws where, as here, the discharge did not occur “within” the State. Pet. 35.

(1) Nothing in this section shall affect or modify in any way

the obligations of any owner or operator of any vessel, or of any owner or operator of any onshore facility or offshore facility to any person or agency under any provision of law for damages to any publicly owned or privately owned property resulting from a discharge of any oil or hazardous substance or from the removal of any such oil or hazardous substance.

(2) Nothing in this section shall be construed as pre-empting any State or political subdivision thereof from imposing any requirement or liability with respect to the discharge of oil or hazardous substance into any waters within such State, or with respect to any removal activities related to such discharge.

(3) Nothing in this section shall be construed as affecting or modifying any other existing authority of any Federal department, agency, or instrumentality, relative to onshore or offshore facilities under this Chapter [33 U.S.C. §§ 1251 et seq.] or any other provision of law, or to affect any State or local law not in conflict with this section.

33 U.S.C. § 1321(o).

29

Finally, the “catch-all provision” in § 1321(o)(3) cannot save petitioners’ claims. It extends only to state laws “not in conflict” with the section itself. 33 U.S.C. § 1321(o)(3) (emphasis added). Petitioners’ effort to extend the catch-all provision to reach claims based on discharges outside the State’s waters would conflict with § 1321(o)(2), which is limited to discharges within the State’s waters. Id. § 1321(o)(3); see Pet. App. 27a.

* * * * *

Both the OPA and CWA savings clauses preserve certain state law claims for oil pollution arising within the geographic boundaries of that State. To read the savings clauses to extend to state claims arising from out-of-state pollution sources would contravene the plain language of the statutes and result in an implied repeal of the CWA. See Pet. App. 30a (“[T]o ‘supersede’ the CWA and Ouellette by allowing all affected states to layer their unique penalty and regulatory laws on top of those governing this OCSLA blowout * * * would be an implied repeal of CWA preemption.”). Such an interpretation should be rejected.

III. THIS CASE IS A POOR VEHICLE This case is a poor vehicle because, regardless of the

effect of the CWA, petitioners’ claims are displaced by OPA. Federal maritime law, as opposed to state law, applies to petitioners’ claims. And OPA displaces that federal maritime law.

A. Petitioners’ Claims Invoke Federal Juris-diction and Arise Under General Maritime Law

It is undisputed that petitioners’ state penalty claims arise out of BP’s oil and gas exploration operations at the Macondo well, approximately fifty miles off the Louisiana coast. It is also undisputed that the Macondo well is

30

located on the OCS, far outside the territory of any State. Thus, the district court properly exercised jurisdiction over petitioners’ claims pursuant to OCSLA. See 43 U.S.C. § 1349; EP Operating Ltd. P’ship v. Placid Oil Co., 26 F.3d 563, 568-569 (5th Cir. 1994). OCSLA de-clares the OCS to be an area of “exclusive federal jurisdiction.” 43 U.S.C. § 1333(a)(1).

The district court further found that it had admiralty jurisdiction. With admiralty jurisdiction “comes substan-tive maritime law.” Pet. App. 107a. And “[w]hile OCSLA was intended to apply to the full range of disputes that might occur on the OCS, it was not intended to displace general maritime law.” Tenn. Gas Pipeline, 87 F.3d at 154. Instead, “where OCSLA and general maritime law both could apply, the case is to be governed by maritime law.” Ibid. Thus, when federal maritime law applies of its own force, state law, like that which forms the basis of petitioners’ claims, may not be adopted as surrogate federal law under OCSLA. Pet. App. 107a.

Moreover, although “[a]dmiralty does not entirely exclude state law * * * and States may ‘create rights and liabilities with respect to conduct within their borders,’ ” this oil spill originated in the OCS—an area of “exclusive federal jurisdiction.” Pet. App. 109a (citing 43 U.S.C. §§ 1332(2), 1333(a)(1)(A)). And the savings clauses in OPA and the CWA do not otherwise preserve petitioners’ state penalty claims. See pp. 27-29, supra.

Petitioners have no ability to pursue state penalty claims in these circumstances. Rather, “general mari-time law—an amalgam of traditional common law rules, modifications of those rules, and newly created rules—applies to this matter to the extent it is not displaced by federal statute.” Pet. App. 107a-108a (citing E. River S.S.

31

Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 864 (1986) (emphasis added)).

B. Petitioners’ Claims Are Displaced by OPA “[P]reemption refers to whether federal statutory law

supersedes state law, while ‘displacement’ applies when * * * a federal statute governs a question previously gov-erned by federal common law.” United States v. Am. Commercial Lines, LLC, No. 13-30358, 2014 WL 3511882, at *1 n.1 (5th Cir. July 16, 2014). Although in the preemption scenario, courts assume that “the historic police powers of the States were not to be superseded by [federal law] unless that was the clear and manifest purpose of Congress,” displacement analysis assumes that “it is for Congress, not federal courts, to articulate the appropriate standards to be applied as a matter of federal law.” Milwaukee II, 451 U.S. at 316-317. By enacting OPA, Congress intended to build upon the CWA to “create a single Federal law providing cleanup authority, penalties, and liability for oil pollution.” S. Rep. No. 101-94, at 9 (1989). Even petitioners concede that OPA “was passed for the express purpose of providing a comprehensive single body of law with respect to oil spills.” Pet. 32.

OPA establishes a comprehensive federal scheme for oil pollution and liability. See 33 U.S.C. §§ 2701 et seq.; Gabarick v. Laurin Mar. (Am.) Inc., 623 F. Supp. 2d 741, 744 (E.D. La. 2009). OPA is intended to be the exclusive, mandatory federal law governing oil spills. S. Port Marine, LLC v. Gulf Oil Ltd. P’ship, 234 F.3d 58, 64-66 (1st Cir. 2000) (“Congress intended the OPA to be the sole federal law applicable in this area of maritime pollution.”); see also Nat’l Shipping Co. of Saudi Arabia v. Moran Mid-Atl. Corp., 924 F. Supp. 1436, 1447 (E.D. Va. 1996), aff’d, 122 F.3d 1062 (4th Cir. 1997) (“Because

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OPA provides a comprehensive scheme for the recovery of oil spill cleanup costs and the compensation of those injured by oil spills, the general maritime law does not apply to recovery of these types of damages.”).

To that end, OPA provides for the recovery of an expansive range of economic damages from an oil spill, including all natural resources damages and damages specific to governmental entities. See 33 U.S.C. § 2702(b)(2)(A). And OPA defines “natural resources” broadly to include: “land, fish, wildlife, biota, air, water, ground water, drinking water supplies, and other such resources belonging to, managed by, held in trust by, appertaining to, or otherwise controlled by the United States (including the resources of the exclusive economic zone), any State or local government or Indian tribe, or any foreign government.” Id. § 2701(20). Petitioners seek recovery for alleged death and injury to fish, wild birds, wild quadrupeds, and other wildlife and aquatic life—natural resources as defined by OPA.13

Consequently, OPA provides the exclusive federal remedy for recovery of petitioners’ oil spill-related damages, displacing non-OPA-based claims (i.e., mari-time claims) for recovery of the kinds of damages pro-vided for in OPA. S. Port Marine, 234 F.3d at 65; Gab-arick, 623 F. Supp. 2d at 750-751 (“This Court finds * * * that OPA preempts general maritime law claims that are recoverable under OPA.”); 33 U.S.C. § 2751(e) (“Except as otherwise provided in this Act, this Act does not affect—(1) admiralty and maritime law[.] (emphasis

13If OPA did not preempt or displace petitioners’ state penalty claims, there would be a risk of double-recovery—first under OPA, then under state law. OPA forbids that result. See 33 U.S.C. § 2706(d)(3); Pet. App. 43a-44a.

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added)). As an intervening Fifth Circuit decision ex-plains, “OPA provides the exclusive source of law for an action involving a responsible party’s liability for removal costs governed by OPA.” American Commercial Lines, 2014 WL 3511882, at *3. This Court’s resolution of the question presented would thus have no effect on the outcome of this case because petitioners’ claims are preempted by OPA in any event.14

CONCLUSION The petition should be denied.

14We also note that petitioners initially challenged federal juris-diction. Pet. App. 2a. The prospect that this Court might have to address an otherwise uncertworthy jurisdictional issue before reaching the (also uncertworthy) question presented weighs against review.

JEFFREY A. LAMKEN MARTIN V. TOTARO MOLOLAMKEN LLP The Watergate, Suite 660 600 New Hampshire Ave., NW Washington, D.C. 20037 (202) 556-2000

ANDREW R. DEVOOGHT MOLOLAMKEN LLP 300 N. LaSalle Street Chicago, IL 60654 (312) 450-6700

Respectfully submitted.

DONALD E. GODWIN Counsel of Record

MELISSA J. SWINDLE GODWIN LEWIS PC 1201 Elm, Suite 1700 Dallas, TX 75270-2041 (214) 939-4400 Don.Godwin@GodwinLewis.com

R. ALAN YORK MISTY HATAWAY-CONÉ GODWIN LEWIS PC 1331 Lamar, Suite 1665 Houston, TX 77010 (713) 595-8300

Counsel for Respondent Halliburton Energy Services, Inc.

SEPTEMBER 2014