U.S. Fifth Circuit: The CWA and OPA Preempt State Law Claims for Pollution Incidents on the OCS

by King & Spalding

Offshore exploration in the Gulf of Mexico implicates maritime law, federal law, and the different laws of five coastal states. The manner in which these different substantive laws interact is often a critical, but unclear, issue. Nowhere is this more apparent than when pollution occurs during exploration on the Outer Continental Shelf due to a maritime tort and causes damage to multiple states' coastlines. In providing clarity on this complex issue by recently striking any state law claims, the U.S. Fifth Circuit warned of the operational burden and added compliance costs to the offshore industry if it were subject to multiple state pollution laws and unclear regulations.

The court recently addressed whether state law claims by local governments could co-exist and supplement the Clean Water Act (CWA) and the Oil Pollution Act (OPA). In re DEEPWATER HORIZON, 745 F.3d 157 (5th Cir. 2014). Specifically, the court addressed whether states retain the right under their historic police powers to deter oil pollution and protect wildlife notwithstanding the application of these federal statutes; and whether the savings clauses in both federal statutes were sufficiently broad to preserve the state law claims. The district court answered both issues in the negative, dismissing the state law claims on federal preemption grounds. The Fifth Circuit affirmed.

Eleven coastal Louisiana parishes filed suit attempting to recover damages under the Louisiana Wildlife Protection Statute that authorizes civil penalties against any person who "through violation of any other state or federal law or regulation" kills or injures fish or wildlife. The CWA prevents a court from applying the law of an affected state against an out of state source. The Fifth Circuit rejected the parishes attempt to limit this point source primacy to discharges in neighboring states as opposed to discharges occurring on a federal enclave such as the OCS. The court discerned no difference where a federal substantive law provides similar and adequate relief for a discharge occurring on the OCS. As the Fifth Circuit observed, "the affected parties can sue for the generous remedies, including for loss of wildlife, that the OPA offers." Id. at 170.

The Fifth Circuit expressly recognized that to hold otherwise would create a chilling effect on offshore exploration. The court importantly noted, "if 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 deterred by the redundancy and lack of regulatory clarity from even pursuing their OCS plans. The reasons for avoiding redundant or conflicting legal regimes are equally potent whether the point source is located in a state or a federal enclave." Id. at 171.

The savings clauses in the federal statutes did not otherwise preserve these state law claims. The court readily found the CWA savings clause, by its own terms, only saved those state laws where the discharge originated in the state—not where the discharge passively migrated into a state to cause damage.

Unlike the CWA, the OPA savings cause broadly preserves a state's right to impose any fine or penalty, regardless of the point of discharge. While the language may be broad, the OPA was designed and enacted to complement the CWA, requiring the statutes to be read in context with one another. Even though state law claims may be saved under the OPA, they must nevertheless yield to the federal preemption required by the CWA's point-source primacy. To hold otherwise, the court noted, would allow the OPA to impliedly repeal or modify a central tenet of the CWA, a result which is unsupported by the text or purpose of the OPA. As such, the parishes' state law claims are preempted by federal statute and not otherwise preserved by any savings statute.

The Fifth Circuit's decision on the preemption of state law claims provides important clarity on the risks that a company may face after an offshore pollution event. This decision eliminates the risk that operators and other parties may have to comply with a "multiplicity of state laws in addition to federal regulations." With this knowledge, companies operating on the OCS are better able to allocate pollution risk through their contractual allocation of risk, and the purchase of insurance.

Andrew Stakelum
+1 713 276 7341

View Profile »




Written by:

King & Spalding

King & Spalding on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.