From WWII Oil Fields To Today’s Courts: Why Chevron V. Plaquemines Parish Matters To Everyone With Richard Wilson

In Podcast 157, longtime collaborators Richard Wilson and Jackalyn Rainosek, PhD take listeners inside a Supreme Court case that most Americans have never heard of—but one that could profoundly shape environmental litigation, federal power, and the balance between state and federal courts for decades to come.

At first glance, Chevron v. Plaquemines Parish, Louisiana appears to be a technical dispute about jurisdiction–question of whether a lawsuit belongs in state court or federal court. But as Wilson and Rainosek make clear, this case is anything but routine. Beneath the procedural surface lies a legal battle with sweeping implications for environmental accountability, corporate liability, wartime federal authority, and the growing strategy of using state courts to achieve national policy outcomes.

Understanding Jurisdiction: Why the Forum Matters

Richard Wilson, drawing on his deep experience as a practicing attorney, begins by walking listeners through the fundamentals of jurisdiction, why it exists, and how courts decide whether a case belongs in state or federal court. He explains the rarely understood but powerful doctrine of federal officer removal, which allows private companies to move cases into federal court when they were “acting under” federal direction.

This legal foundation is critical to understanding the Plaquemines Parish litigation, where oil companies argue that their World War II–era crude oil production—conduct now being challenged under Louisiana law—was intertwined with federally directed wartime efforts and therefore should be judged in federal court.

Why Parties Fight So Hard Over the Courtroom

Wilson and Rainosek then explore why jurisdiction matters so much. State and federal courts operate under different procedural rules, legal precedents, and institutional pressures. Plaintiffs often prefer state courts, where juries may be more localized and sympathetic, while defendants frequently seek federal courts for their uniformity and established doctrines such as federal preemption.

In this case, those preferences are anything but abstract. One related Louisiana parish case has already resulted in a $745 million judgment, and others have produced substantial settlements. Whether these cases remain in state court—or are moved wholesale into federal court—could determine not only the fate of those verdicts, but whether similar lawsuits across the country succeed or collapse.

Environmental Law, Federal Power, and the Bigger Picture

Jackalyn Rainosek, PhD, situates the case within a broader political and social context. She examines how Plaquemines Parish fits into a growing national trend in which state and local governments use litigation to pursue environmental and climate policy goals that have stalled legislatively. While supporters view these lawsuits as necessary accountability for powerful corporations, critics warn they represent a form of “lawfare” that allows courts to override national policy decisions through massive monetary judgments and sweeping injunctions.

Together, Wilson and Rainosek unpack the Fifth Circuit’s split decision, including Judge Oldham’s dissent, which warns that keeping these cases in state court risks undermining federal authority and rewriting the scope of federal officer protection. They also discuss what could happen if the Supreme Court sides with the energy companies—potentially vacating existing judgments, sending the cases to federal court, and triggering preemption rulings that could end the litigation entirely.

Why This Case Affects Everyday Life

As the hosts emphasize, this case is not just about oil companies or Louisiana wetlands. It raises fundamental questions about who gets to decide national policy, how far states can go in regulating conduct tied to federal action, and whether courts should become primary venues for resolving complex environmental and economic issues.

Listeners will come away understanding why Chevron v. Plaquemines Parish deserves far more attention than it has received—and why decisions about where a case is heard can matter just as much as what the case is about.

Podcast 157 is a deep, thoughtful conversation that blends legal expertise with civic insight, making a complex Supreme Court case understandable, relevant, and urgent.

Episode Summary Points:

The Central Focus: Jurisdictional Battles in Environmental Law

The episode centers on the complex legal battle of Chevron v. Plaquemines Parish, exploring how the outcome of a jurisdictional dispute—whether a case is heard in State or Federal court—can determine the future of environmental litigation in the United States.

Understanding the Legal Framework: Subject Matter Jurisdiction
- The Basics of Venue: Attorney Richard Wilson explains that “subject matter jurisdiction” determines which court has the authority to hear a case. While most money-related disputes are settled in State Court, specific triggers can move a case to the Federal level.
- Diversity and Federal Questions: Federal courts typically take cases involving “diversity jurisdiction” (parties from different states and high dollar values) or “federal questions” (issues involving the Constitution or federal statutes).
Case Study: Chevron v. Plaquemine Parish
- The State Court Advantage: Plaquemine Parish originally filed suit in State Court under Louisiana law to recover damages for coastal erosion. Plaintiffs generally prefer local state courts to avoid conservative federal appellate judges and to have access to local juries.
- The Dredging Crisis: The core environmental issue is dredging—the creation of deep channels for oil production that allowed saltwater to penetrate further inland, killing vegetation and causing massive soil loss.
The Removal Strategy: The “Federal Officer” Statute
- A Historical Pivot: Chevron attempted to “remove” the case to Federal Court by citing actions from the 1940s. They argued that because they were producing aviation fuel for the U.S. Army during World War II, they were acting as “Federal Officers.”
- The “Related To” Dispute: The legal battle hinges on a 2011 change to federal statute 1442. The court must decide if “related to” federal work means a direct causal link (narrow) or merely some loose association (broad).
- Potential Immunity: If the Supreme Court adopts a broad interpretation, energy companies could enjoy quasi-governmental immunity, effectively shielding them from environmental liability if their actions were even loosely connected to a government contract.
The Big Picture: Circuit Splits and Future Implications
- The Supreme Court’s Role: With federal appeals courts split on how to interpret “related to,” the Supreme Court must now decide the standard for the entire country.
- Strategic Litigation: Richard Wilson notes that to keep future cases in State Court, plaintiffs may need to “isolate” their claims—intentionally excluding historical periods or specific damages that might trigger federal jurisdiction.

References for Podcast 157:

Plaquemines Parish v. BP America Production Company, 103 F.4th 324 (5th Cir. 2024).
Skinner, O. H. (2025). Supreme Court’s Plaquemines Parish Case Deserves More Attention. Harvard Journal of Law & Public Policy: Per Curiam, No. 18 (Fall 2025).

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From WWII Oil Fields To Today’s Courts: Why Chevron V. Plaquemines Parish Matters To Everyone With Richard Wilson

I have a wonderful attorney with me who is a dear friend, Richard Wilson. He is going to answer all the legal questions, because I am certainly not that, but I will be able to add some things that will be important for all of our audience. What I want to say, though, is that this is a Hot Topic, Bold Talk.

We do our best to be very clear when we look at cases, to not only present to you what the case is about generally, but to give you some legal understanding of what is going on so you can be much more aware of what the Supreme Court is going to do in certain cases. We have been paying for too long, not paying attention to the Supreme Court, and lots of things are changing.

Now, we shall see what happens in this case because Richard is certainly much more knowledgeable about it than I am. I am someone who I would say is a protector of the environment. It is very important to me. Yet I have a lot of friends who are in oil companies, so I can also understand some of their concerns. Richard, I brought this case to you. My audience needs to understand what this case is about and the reason we want to have them listen to it. It is your turn.

Defining Subject Matter Jurisdiction

First off, because our discussion of what the case is about will eventually devolve into the deception of the English language, I do want to tell your audience that yes, I, too, agree that the term wonderful attorney is probably an oxymoron. Having said that, the case you are talking about is Chevron v. Plaquemines Parish, which you brought to my attention after it had been brought to your attention because of the potential environmental effects that a decision on the case could have.

The particular question on the case concerns something in courts that is referred to as subject matter jurisdiction. In courts, you have two types of jurisdiction. One is personal jurisdiction. The idea behind that is if someone is going to sue me, they have to sue me where you can find my person down here in South Texas, as opposed to suing me up in Anchorage, Alaska.

That is the personal jurisdiction standpoint. The other jurisdictional issue is what is called subject matter jurisdiction. The idea behind subject matter jurisdiction is that there are different courts in the country. If I have a particular dispute, and we are focusing here on civil cases, which are cases basically about money as opposed to criminal cases, if I have a dispute about money, in what court do I bring that suit?

That is the subject matter jurisdiction issue. Most cases, and I can tell you most of the cases in my practice, end up in state court because most disputes concerning money involve issues that are state law. The majority of lawsuits end up in state court. That is one area of subject matter jurisdiction. There are some cases that, because of the subject matter, because of what the case is about, those cases end up in federal court.

An example of one type of case where the federal court has subject matter jurisdiction is what is called diversity. The idea behind this, and this is another one of these matters embedded in the constitution, is that in the old days, the theory was, and let’s go with the thirteen colonies. If I live in Virginia and I sue you for something you did in Virginia, but you are from Massachusetts, then I am going to have an unfair advantage, a home-field advantage if I bring my lawsuit in state court in Virginia, even if it concerns something that does not have what is called federal question jurisdiction.

The idea is that if we are from two different states and I sue you in my state at a certain dollar value, at a certain magnitude of importance measured in dollars, you can then remove the case to federal court, where you would have a fairer system, presumably not a hometown advantage. That is diversity jurisdiction. The other area of subject matter jurisdiction for federal courts specifically is what is called federal question jurisdiction.

The clearest example of this would be some of the cases we have discussed previously on this show. If you are dealing with federal constitutional issues, like due process under the 14th Amendment, that is a case that can only be in federal court. It is called a federal question. Another example of such a case is that there are federal statutes that exist to protect people from employment discrimination.

The statute, being a federal law, creates a jurisdiction in the federal court as opposed to a state court. That case has to be in federal court. That is the particular jurisdiction we are talking about. That is the distinction. Your typical personal injury claim, unless it is being brought against a company or an individual who lives in another state and just happened to be visiting Texas when they injured you, is going to be in state court.

If you are fighting over a breach of contract because you paid for goods or services and they were not given to you, that is almost always going to be in state court. The federal court cases are going to involve those rare cases worth a lot of money. The limit right now is $75,000, where you have two people from different states or claims against the government. That is one I have not mentioned. If I want to sue the federal government for something I did, it gets to have the case in federal court. Those are only in federal court. That is subject matter jurisdiction.

Let me just pause for a minute so I can clarify something. We are talking about personal jurisdiction. We are talking about subject matter jurisdiction. You have tried to explain that to my audience and even to clarify for me what is going on.

I would point out that some cases could be brought in both courts. It is just a choice of a federal court or a state.

What example would there be for it can be brought in both courts?

There are certain types of cases, like the Fair Debt Collection Practices Act, that can be brought in federal court or state court. In Texas, some statutes likewise prohibit employment discrimination. Perhaps if I am a plaintiff and I want to be in state court, I only rely upon and reference the state causes of action for employment discrimination.

I got you. That explains something for me, too, because there have been situations that I have been in over the years where some of my friends have had to file for inappropriate treatment in employment and so forth. That helps a lot. What I want to do, though, is I want you to be much more specific in relation to this case about the jurisdiction that happens in federal versus state, and show me how this particular case, where it started, where it was placed, and things like that. We can have an understanding of the jurisdiction in this particular case we are going to talk about.

The Plaquemines Parish Lawsuit

The particular case is Chevron v. Plaquemines Parish, Louisiana. By way of background, there is a statute, a Louisiana law that permits the parishes in Louisiana, the Louisiana equivalent of counties, to file suit for environmental damage occurring in that parish. In particular with the Plaquemines Parish case deals with coastal erosion. This is just one of a collection of cases.

I do not have the case open in front of me, but I seem to remember that 42 of these lawsuits were filed across southern Louisiana, and many of them were in the Eastern District, which is going to be the New Orleans area from a federal standpoint. Many of them were also in the Western District, more towards Lafayette and Lake Charles. They were filed by the coastal parishes in state court, looking to enforce a state law that would allow them to collect damages from private actors for taking certain actions that harmed the environment in Louisiana.

The parishes would choose to file in state court because one, the creation of their right to collect damages was a state law. The other thing is if I am Plaquemines Parish and I am suing for money for my parish, it would be like Harris County, where Houston is located, suing in state district court to say, “Look, we need money for the county, and this is going to go into the county coffers, and this will benefit everyone.”

If I am going to do that, of course, I would like to file suit in my own parish or county because I think the public is going to take a much better view of that as opposed to filing the case up in Dallas or filing it in federal court where I could end up with a lot of people in the jury who are from Montgomery County or Waller County or other places and really do not care about fattening the coffers of Harris County.

That really reveals one of the most important decisions that you can make when you file a lawsuit. More often than not, I am defending people. I am not representing the plaintiff. One of the most important decisions is where you bring the lawsuit. That touches on something called venue and also something called jurisdiction, as we are discussing. If you can bring a case in state court, there are a lot of advantages that a plaintiff would see themselves having in state court.

The laws are often more beneficial to them, at least where we live. The Fifth Circuit, which is Louisiana, Mississippi, and Texas, the appellate court that would hear a decision or a judgment from the trial court, is generally viewed as being very conservative. That does not just go with respect to constitutional issues. It also goes with respect to damage awards.

[bctt tweet=”One of the most important decisions is where to bring a lawsuit, which touches on venue and jurisdiction. If a case can be brought in state court, plaintiffs often see significant advantages, as state laws are frequently more favorable to them.” via=”no”]

They tend to be a bit more reticent to allow really large damage awards to stand as a general rule. It is not something that is across the board, but more often than not, you want a conservative court. Another benefit, if I am a defendant in federal court as opposed to state court, the plaintiff typically wants to be in state court. You are picking people local to you.

In federal court, in state court, I have a lot more control over picking a jury here in Texas. There is a process called voir dire, where you will have people called in who might be on the jury. The lawyers in state court in Texas are given a lot more leeway in the questions they can ask people who might be on a jury, so that they can identify people they do not think are going to see the case favorably to their client. You use strikes to get those people off the jury.

In state court, I have a lot more control over that as a lawyer. In cases I have tried in federal court, the judge tends to take the lead on picking the jury. I have heard of some judges who they exclusively pick the jury. I have been in courts where the judge allows the lawyer to ask questions, but the questions are very limited in what the judge will allow.

There are some federal courts where you have to submit your questions to the jury in advance in writing, and the judge will ask that. The level of follow-up questions you might have to expand on people’s opinions is limited. The long and short of it is that the federal judge often gets to pick the jury they want, as opposed to me getting to pick the jury I want.

Let me ask you another question. Can a case like Chevron start in state court and then they moved to federal court, and can it even be moved to the Supreme Court? How would it move from state to federal to the Supreme? What would have to be the dimensions or the dynamics around the case that would move them like that?

It is quite often, it is called removal. I have several cases now that began in state court and are now in federal court. Someone filed suit in state court, claiming jurisdiction in state court. I, as a defendant, look at the case and say, “I do not really like this judge,” or “I do not really like the county in which we are located.” If there is a basis for federal jurisdiction, more often than not, it is diversity. I would then try and remove the case to federal court.

It is called a notice of removal. I filed that with the state court, and that stops things in state court. I filed the notice in the federal court to which the case should go, along with all of the filings that currently exist in state court. Basically, I file the removal petition in state court, and then I refile the lawsuit in federal court, claiming that it is where it should be.

That has happened in the Chevron case twice. What that case reveals from a standpoint of picking your jurisdiction is, Plaquemines Parish desperately wants to try the case in Plaquemines Parish. The energy companies desperately want the case in a federal court in New Orleans, where the majority of the jurors presumably are not going to be from Plaquemines Parish, dealing with a lawsuit that is going to fill Plaquemines Parish’s coffers if it is successful.

The first attempt at removing the case to federal court by the energy companies, and this is a lawsuit that was filed over ten years ago, was when they claimed that there was admiralty jurisdiction. That is one of these federal question issues where particular statutes govern lawsuits in navigable waters that are not seen as really being part of a particular state.

They removed it to federal court on that basis, and the federal district court judge said, “No, this is not an admiralty case,” and sent it back to state court. May have said, “It is an admiralty case, but these are the types of cases that allow you to choose whether you want state or federal court.” Certain cases involving acts on the high seas, Seaman, Jones Act, and admiralty cases, some of them can be in state court or federal court at the plaintiff’s choice.

One way or the other, the case goes back to the state court. I will point out here generally, I cannot remove a case to federal court and go directly to the US Supreme Court. The US Supreme Court is what is considered to be the highest court of appeal, which means they are only going to decides questions that have been first answered in a lower court, with rare exceptions, like where it has exclusive jurisdiction. This is not one of those.

The “Federal Officer” Removal Tactic

The case ends up back in state court, and Plaquemines Parish produced an expert report. The Louisiana statute, to get into a little more detail on it, primarily involved actions taken along the coast or in coastal communities after 1982. There are certain actions before 1982 that you could still file suit for damages on. If the actions were illegal, things of that nature, they would not be seen as grandfathered in.

The expert report focused in particular on high levels of production in the 1940s along the coast by several of the energy companies. When they did that, Chevron, which over the years has acquired other companies, looked at the production efforts of some of the companies it has acquired. The two in particular were Gulf Oil and the Texas Company, or as we all know it when we used to pull into a gas station, Texaco.

The production that was being done at that time was being done to supply increased oil to refineries to produce aviation fuel for the US Army for World War II. What Chevron then did was say, “There is a statute that allows us to remove lawsuits that are against a federal officer or someone acting under a federal office or officer pursuant to what they have directed the person to do.”

Here, we were directed by the US Army to increase the production of aviation fuel for the war effort. In order to increase production, we needed the oil. For that reason, we increased the production to the levels that you are saying we violated the law and were improper, and that gives the parish the right to recover damages from us.

The statute that allows, if I am acting as an FBI agent and I am sued for my actions as an FBI agent, then under that statute, 1442, I can remove the case from state court to federal. You are claiming I injured you, and I am saying, “Yes, I did it, though, acting as an officer for the federal government.” I removed the case to federal court. That is a very simple example. The Chevron example is a bit more complex or convoluted.

For a second time, Chevron removed the case to federal court in New Orleans. There, the judge looked at the case and looked at the statute and said, “No, the contracts you are talking about with the army were for producing aviation fuel at a refinery. They did not require you to produce the oil, to drill and remove the oil from this specific area.” At the district court level, the trial court level, the judge said, “I am remanding the case.”

Chevron then appealed to the Fifth Circuit. They said, “Look, we believe that this case should be in federal court under this statute because we were doing this for the US Army to increase the production of aviation fuel.” When you first go to a federal court to an appeals court, you will have a three-judge panel that will decide the case.

They decided the case and said, “No. This is not something that you can remove to federal court.” This is where we get into the language of the statute. The particular statute, 1442, used to read differently. It was an officer, and it involved actions by the officer. The statute was changed in 2011. As both the majority opinion from the Fifth Circuit and the Chevron v. Plaquemines Parish case point out, as does the lone dissenting justice.

In 2011, the statute was changed so that the language involved related to, which was not just actions by the officer, but also involved lawsuits for actions related to the federal action. Related to is broader language. That is ultimately what gave rise to their removing the suit. That was the question that was presented to the panel and then to the Fifth Circuit. I am going to pull it up so that I can look at it and remind myself whether or not this was an en banc decision. I believe that it was. En banc is a Latin term meaning the entire court and not just a panel. Give me just a second.

One of the things I enjoy working with you about is that you are very careful in the way you research these cases, and you always try to give the best presentation you can. One of the reasons that I chose you as an attorney I wanted to work with is so that my audience would get the best information they could possibly get. That is the reason we are pausing for a moment.

The deal was that this was just in front of a panel, meaning three judges, three justices in the Fifth Circuit. The majority opinion went through that change in the statute and the language. What they said is related to language. The meaning of that is the act is a lawsuit based on some action that is connected or associated with the contract awarded by the federal government. The majority panel said the production is not connected or associated with the contract.

In the example that the judge writing the opinion for the majority panel gave, while you were required to produce increased amounts of aviation fuel that would have your refinery operating at full capacity, the contract did not require you to drill for and produce your own oil that would be used to make the aviation fuel. You could have bought it from other producers on the open market and still made the aviation fuel.

The fact that you drilled for it and produced at excessive levels in Plaquemines Parish was not connected or associated with the contract to provide the aviation fuel. You had one judge who dissented, and in his dissent, he said, “I see ‘related to’ as not connected or associated with, I see it as much broader.”

To me, relation or related to means there just has to be some relation to the federal contract. To me, the fact that you were using hydrocarbons produced from Plaquemines Parish at these excessive levels suggests some relation to a contract with the US Army that required you to produce more aviation fuel. This case should be in federal court. When I was saying earlier that we would get into an English language, ultimately, the dispute here amongst three highly educated jurists is the meaning of related to.

[bctt tweet=”Ultimately, the dispute among three highly educated jurists centers on the meaning of ‘related to.’ Two judges interpret it as ‘connected or associated with,’ while one judge reads it as requiring a more direct relation.” via=”no”]

You have two judges who say “Related to is connected or associated with, which is here.” You have one judge who says, “Some relation to, which is here.” If his opinion were the majority or if the Supreme Court, which has decided to take the case, goes with the view of the dissent, the effect of that is going to be that it will greatly increase the number of cases that end up in federal court. You are just going to have a lot more cases that end up in federal court because related to is such broader language.

There is an example that the judge gives in the dissent where he says, “True, the contracts did not specify where or how defendants should acquire the massive amounts of crude oil needed to fulfill their avgas obligations. Nor, I suppose, did the contract specify where or how defendants would acquire the additional human labor to increase output at the refineries.” The reason I focus on that is that there is quite a lot of litigation that happens in Houston, in particular, where you will have contractors working at a refinery or a chemical plant down here doing turnover work, where they are not employees of the refinery.

Nonetheless, they are working on the refinery when they are injured. If you take the example that Judge Oldham uses in his dissenting opinion, what you have there is a circumstance where if the energy companies engaged and hired contract labor for the increased production efforts, then somebody slips and falls in the plant where they are not an employee under workers’ compensation law, then that would be a federal lawsuit, regardless of the dollar value, because they are now performing work that is related to the company fulfilling a government contract.

To take it out of the specifics of the Chevron v. Plaquemines Parish case I am willing to bet that pretty much any refinery we have got here on the Ship Channel is probably producing gasoline, if not aviation fuel, some other type of gasoline that perhaps they are supplying to a depot for the army or the Air Force or that is going into marine vessels that are not nuclear or that might be directed to the federal surplus.

To the extent you have refineries with current contracts with the government for any one of those things, providing fuel for the forestry service trucks. The fact that an injury is occurring at their refinery when they have a contract with the federal government to produce some fuel for it means now any injury on the refinery’s property would have some relation to work they are doing for a federal department or federal office. That is what I mean by the fact that the dissent’s opinion would make this jurisdictional issue much broader.

We do not want to overload the federal courts. What do you think is going to happen in this case between Chevron and Plaquemines Parish?

The Risk Of Governmental Immunity

I will get to that in just a second, but I want to bring this in particular to Plaquemines Parish. There is one case that is discussed in there that I have not touched on, and it is an earlier Louisiana case, Latiolais. It involved a shipworker who was exposed to asbestos insulation on a naval ship that was retrofitted or repaired in the Avondale shipyards in New Orleans in the 1960s.

There, his case for asbestos exposure was removed from state court to federal court because they were claiming the shipyard was doing this work on a Navy ship. In that case, the Fifth Circuit, the old statute used to be that to remove the case, there had to be a causal connection. When I was talking about the majority opinion and the dissenting opinion, the causal connection is this.

It literally means the injury arose out of that person’s work on the government contract. It is that narrow. What the court did in Latiolais was they said, “The related to means we have to broaden the scope.” They went to the connected or associated with language, as opposed to the causal connection language. Ultimately, what happens is that if I am doing the work under a federal contract, in many circumstances, even though I am a private company, I now enjoy what is called quasi-governmental immunity.

If I am doing something at the direction of the government or for the government, then I enjoy the same immunity the government enjoys for the work that I am doing. In Latiolais, it was an en banc decision. When the entire Fifth Circuit decided the case, they then pointed out that the Avondale shipyard would be immune from this type of lawsuit in federal court, or maybe immune. They may have remanded that for the district judge to make that decision.

The point is that by having the case in federal court and by determining that the injury was related to a federal contract, there was now governmental immunity that attached to this issue. That is why you brought this case to my attention. You forwarded to me an article pointing out that with many of these environmental cases that focus upon accidental discharge or overproduction and erosion of the coastline in Louisiana, where I grew up.

The concern is if the cases are now something that are seen as being an injury related to the performance of a government contract, then suddenly Chevron or Exxon Mobil or BP enjoys governmental immunity because the work was being done related to a government contract. That is why a lot of people are concerned about what I would say is a simple jurisdictional case. Your question was not that, but I think that’s a precursor to answering your question, which is, what do I think the Supreme Court will do?

[bctt tweet=”With many of these environmental cases focused on accidental discharges, overproduction, and coastal erosion in Louisiana, the concern is whether the cases are now seen as injuries related to the performance of a government contract.” via=”no”]

I would say my prediction of what they will do is maybe slightly better than a WAG, a wild ass guess. By way of background, when the statute was changed in 2011 to allow the removal of cases related to governmental work, what happened was you had four courts, including the Fifth Circuit, which have now gone to this broader connected or associated with the contract scope. There are another four courts that, even though the statute was changed in 2011, they are still use this narrower causal connection language.

Before you answer my question, I want you to do something, because I had not realized what I did earlier in asking my question. In cases where these four courts are considering it causal, can you compare that? It seems to me that if it is connected to a federal contract, then it is going to be really hard for a parish to get any kind of compensation. If it is causal, then a parish would be able to get some kind of remediation.

The remediation is ultimately the end result, the symptom, if you will. The question is still one of jurisdiction. With the causal connection for removal, the narrower scope for getting the case in federal court, which means more cases end up in state court. The causal connection was a test that was crafted under the statute pre-2011, before the language related to language was added.

Even though the language of that statute has changed, you have still got some federal appellate courts, including, I believe, the court in St. Louis, Missouri, that still apply that narrower standard. The Fifth Circuit now applies a broader standard, the connected or associated with. I would point out that the only judge that I have seen who is going with the same relation to test is Oldham, the dissenting judge on the panel in the Chevron case.

Circuit Splits & The Supreme Court

The concern amongst environmentalists is if the Supreme Court goes with the same relation to test, then all of this environmental litigation is going to die because of the federal immunity that would attach to the energy. What will happen is the Supreme Court is going to be reticent for the tsunami of cases being removed to and remaining in federal court if they approve the broader some relation language.

We have got here a classic case of a circuit split, which is quite often the types of cases that end up on the Supreme Court when you are dealing with non-constitutional issues where ultimately the court has decided we have got four courts of appeal that are saying the law is X and four courts of appeal that are saying the law is Y. We need to decide what the law is for all of the courts of appeal in the United States handling federal cases.

What the Supreme Court is going to do is they are probably going to adopt the middle approach, which acknowledges that the change to the statute in 2011 was meant to broaden the scope of cases that could end up in federal court, where you are doing work pursuant to a government contract. We did not mean to make it so broad that literally somebody driving a truck by the refinery that gets hit by a tanker that pulls out that happens to be carrying gas on its way to a military base, suddenly becomes a federal case because of a motor vehicle accident on a public road, which is what the relation to could arguably result in.

They will go to that middle ground where they are looking for a more direct relationship, but not something that arises directly out of the contract. A closer relationship, but not that immediate, smaller scope. Ultimately, what I am saying is I think the US Supreme Court is going to say, “We are adopting the view that the majority did in the Chevron case, and we are making it clear to the other four courts of appeal that going forward, the scope of cases that can be removed is now broader than the old causal connection test.”

They will adopt the middle ground, but there are no guarantees on that. The reason I think that is because I have seen other cases where the court has been asked to broaden the scope of federal jurisdiction. One of them in the legal malpractice realm was that you had some lawyers who tried to remove an intellectual property legal malpractice case to federal court about fifteen years ago, arguing that because the underlying dispute involved a federal question, which is patent law, the malpractice suit should also be in federal court.

In that circumstance where the US Supreme Court was offered the opportunity to expand the subject matter jurisdiction of federal courts, they said, “We are not going there. We are not going to make it that broad. Your case is a simple negligence case under state law. It does not matter that the underlying case dealt with federal law.” I would say that is a good metaphor for connected or associated with, as opposed to some relation to. That case might be a parallel that shows what the current court will do as opposed to what the court did some fifteen years ago when granted. There were a lot of different people on the court at that time.

You have explained that. Of course, the parish would like to have it in state court because they have a huge amount of money that they would get.

I believe the opinion touches upon the fact that of the 42 cases that had been filed, one of the cases had already resulted in a $750 million or $740 million award. The concern of many people is that if suddenly these are all federal jurisdiction cases, then if the state court lacked the jurisdiction to decide the case, that judgment suddenly goes away. Under federal law, if the energy company has immunity, you will have some judgments that have already been rendered that will suddenly disappear. Some of the energy companies have just settled.

[bctt tweet=”If the state court lacked jurisdiction to decide the case, that judgment would suddenly go away. Under federal law, if the energy company has immunity, judgments that have already been rendered could suddenly disappear.” via=”no”]

They have looked at it and said, as opposed to Richard Wilson, who does not charge quite as much, “We are paying $1,500 an hour for lawyers out of DC and New York and Chicago and Los Angeles and even that much for some lawyers in Houston. If it is going to cost us $50 million to try this case, let us just go ahead and pay $50 million to the parishes to settle it.” There have been some settlements already. Those would remain in place because now you have an enforceable contract between the parties, but in the cases that have resulted in judgments, there is some concern that those judgments would be at risk despite the size of the award.

One of the things I am going to ask you, because I do not know these parishes very well. What does Plaquemines Parish say has been most detrimental to their area, based on the things that Chevron has done, or some of the companies they bought have done? What is the damage?

Impacts On Coastal Erosion & Future Strategy

I can answer that not as a lawyer but as someone who spent the first 21 years of my life in Louisiana, being born in Morgan City, even. Probably the biggest source of damage has less to do with the actual production and taking the oil out of the ground but more to do with dredging, which is creating deeper and wider channels to get boats into these areas so that the companies can drill or can do work around the well, or can lay pipelines to get the oil from these wells back to a collection facility where the oil can go to a refinery.

The result of the dredging is that by creating deeper and wider channels, saltwater has gone further into the state of Louisiana. Where it used to be limited very close to the coast, it can now follow these wider manmade canals or channels much further in. What the saltwater has done over time, and I am not an environmentalist, but in layman’s terms, is it has killed a lot of the vegetation that holds the soil in place.

As a result, the Mississippi River, the Atchafalaya River, as they flow down to the Gulf, are taking more of the soil away. What happens is the waves from the Gulf come in further and pull the soil away. They can go in even further and pull more soil away. I look at topographical or satellite maps of Plaquemines Parish now, and it is a shadow of what it looked like back when I was in elementary school. It is largely because of the dredging operations.

That also creates what I think would be an interesting complication with the case, even if it were in federal court, which is that we are only talking about a small amount of damage due to the increased production. You are then looking at having to quantify what might be related to the federal contract? What do we have that we can completely divorce from the federal contract so that state law would still apply? You then end up with even more money being spent on lawyers and even more complications than what was already a very complicated case.

If they could separate things out, then the plaintiffs would have a better chance of building their case to say, “This is separate from the federal contracts. It needs to come back to the state court so that we can try to determine what has really happened to our environment.”

The problem there is if one part of the case can be removed to federal court under something like this, then what you have is the entire case against Chevron goes to federal court because the courts despise having parallel cases running in two different courts. The reason courts despise that is one, it is seen as an economic waste where we are devoting government resources to a case in state court and a case in federal court.

The other concern that the courts have is that sometimes the courts look bad if one court decides the case in favor of the plaintiff and the other does not. You can have what are called competing or contrary judgments. To prevent that, if a case can be removed, you do not just get to remove this small part of the case that is related to a federal question. You remove the entire case because of that single federal question. I am sorry that I am moving my hands around like this.

No, but it makes more sense as you move your hands around. To me, it is a very important case because there could be some real ramifications for the county and states where damage is done.

Even private landowners.

That is what concerns me, too, with private landowners. What would you recommend as a lawyer, and I have not asked you this before, and I did not warn you I was going to ask you this. What would you recommend as a lawyer to a private person or to a county to say, “If you are going to do business with an oil company, what all do you need to cover in your contract so you can protect yourself and protect your environment?”

In these circumstances, I do not know that we necessarily have the parishes doing business with the federal government. I mean, with an oil company, what we have is a circumstance where the oil company has arguably entered into leases with private landowners. As a result of that, they have undertaken actions that have resulted in damage to the parish as a whole. There is really not much the parish can do in that regard.

What do I recommend to a private owner?

I could foresee from a standpoint of the private owner, a lot of them have certain protections, and you have had a wave of private lawsuits involving remediation to private land in Louisiana. I know that I have heard lawyers in Louisiana complaining about it because the way the Louisiana statute was drawn, you would have a private landowner who would buy land that had been damaged by a spill.

They sue for remediation damage, and they get the money, and then they sell the land, and someone else comes in, and the prior owner had not performed the remediation after they got the money. The energy company is getting sued a second time by a second owner wanting damages for the same remediation they have already paid for.

The short answer to that is, from a private landowner standpoint, with the broader damage, there is not really much you can do. Most of these leases are going to involve the API leases, American Petroleum Institute. These form leases, where the only thing you really negotiate on is a bonus payment and the amount of the royalties you are receiving.

We shall see what happens. We will certainly, when we hear some further action taken, they will certainly be included, so we can keep our audience up with what it is. Chevron is going to make a major difference.

I will point this out. If I were a parish or a county filing suit, I would probably, even though my damages might be larger, if I can determine what amount, where the oil was going and what actions caused the damages, if I could isolate what I sue for to be for things that have no connection or association with a contract for the government, that would allow me to keep the case in state court.

It literally might involve excluding some damages that were caused simply to remove the possibility of the case ending up in federal court. Arguably, had the expert not included that one opinion about increased production in the 1940s, this case might have continued in state court in Plaquemines Parish.

You have answered my question because that is what I wanted to know is how to keep it in state court. You have really done a great job. Richard, I think we have done the best we can with this. I am just going to say to my audience, I appreciate you immensely tuning in to us. You have my connections, so you can certainly make comments to me about what Richard and I are doing. We’ll be happy to hear any responses you have. We will be back. This case is going to be put out in the first week of January. We shall see what happens. I really thank you so much. I am going to stop us talking about this. Thanks so much, Rich.

Important Links

About Richard Wilson

Richard Wilson is a veteran trial and appellate lawyer. His practice emphasizes the defense of professionals in federal and state courts, and before disciplinary agencies.

For over 20 years, Richard has focused on representing lawyers directly and on behalf of lawyers’ professional liability insurers.

During that time, he has defended and advised hundreds of lawyers and law firms against legal malpractice claims and professional ethics complaints.

His experience as a trial lawyer and with the law of lawyering has enabled him to both counsel and protect his lawyer clients when they find themselves parties instead of advocates or counselors.

KERR WILSON, P.C. 16676 Northchase Drive, Suite 450 Houston, Texas 77060 (281) 260-6304

EDUCATION

University of Texas at Austin, J.D., 1995
Louisiana State University, B.S., Finance, cum laude, 1992

BAR ADMISSIONS

State Bar of Texas
U. S. District Courts for the Eastern, Northern, and Southern Districts of Texas
U. S. Court of Appeals for the Fifth Circuit

PROFESSIONAL EXPERIENCE

Kerr Wilson Shareholder Houston, Texas 2008 – present

Represented clients in breach of contract, tort, employment, and insurance cases
First chair trial experience
Lead counsel in multiple appeals in both state and federal appellate courts
Advisor for small and mid-sized businesses in the energy industry
Responsible for all facets of managing and operating a law office

McFall, Breitbeil & Shults Associate & Shareholder Houston, Texas 2001 – 2008

Represented clients in breach of contract, tort, employment, and insurance cases
First chair trial experience
Lead counsel in multiple appeals in both state and federal appellate courts
Established the budget, managed litigation, identified corporate objectives, retained local counsel and experts, and tried complex cases that were pending in multiple jurisdictions

Chamberlain, Hrdlicka, White, Williams & Martin Associate Houston, Texas 1997 – 2001

Hirsch, Robinson, Sheiness & Glover Associate Houston, Texas 1995 – 1997

ACHIEVEMENTS

First chair jury trials in professional liability, breach of contract, insurance, trade secret, and personal injury cases
Appeals to the Fifth Circuit and Texas appellate courts
AV Rated by Martindale-Hubbell

PUBLISHED CASES

Blair v. Fritsch, 608 S.W.3d 407, 414 (Tex. App.—Houston [1st Dist.] 2020, pet denied)
Webb v. Crawley, 590 S.W.3d 570 (Tex. App.—Beaumont 2019, no pet.)
O’Hern v. Mughrabi, 579 S.W.3d 594 (Tex. App.—Houston [14th Dist.] 2019, no pet.)
Sheller v. Corral Tran Singh, LLP, 551 S.W.3d 357 (Tex. App.—Houston [14th Dist.] 2018, pet. denied)
Kelly v. Nichamoff, 868 F.3d 371 (5th Cir. 2017)
Stallworth v. Ayers, 510 S.W.3d 187 (Tex. App.—Houston [1st Dist.] 2016, no pet.)
Galindo v. Prosperity Partners, Inc., 429 S.W.3d 690 (Tex. App.—Eastland 2014, pet. denied)
Graper v. Mid-Continent Cas. Co., 756 F.3d 388, 390 (5th Cir. 2014)
Allstate Tex. Lloyd’s v. McKinney, 964 F. Supp. 2d 678 (S.D. Tex. 2013)
Glattly v. Air Starter Components, Inc., 332 S.W.3d 620 (Tex. App.—Houston [1st Dist.] 2010, pet. denied)
Willbros RPI, Inc. v. Continental Cas. Co., 601 F.3d 306 (5th Cir. 2010)
Duerr v. Brown, 262 S.W.3d 63 (Tex. App.—Houston [14th Dist.] 2008, no pet.)
Digges v. Knowledge Alliance, Inc., 176 S.W.3d 463 (Tex. App.—Houston [1st Dist.] 2004, no pet.)
Bauer v. Texas, 341 F.3d 352 (5th Cir. 2003)
King v. Dallas Fire Ins. Co., 85 S.W.3d 185 (Tex. 2002)

PUBLICATIONS

Author, From Advocate to Party – Defenses for Lawyers Who Find Themselves in Litigation, 61 LAW REVIEW OF SOUTH TEXAS COLLEGE OF LAW 43 (2020)
Author, Policy Benefits- Are They Recoverable Under Extra-Contractual Theories When A Covered Claim is Denied?, JOURNAL OF TEXAS INSURANCE LAW, Volume 12, Issue 5, at 17 (cited by the Texas Supreme Court in USAA Texas Lloyds Co. v. Menchaca, 545 S.W.3d 479, 487 (Tex. 2018))
Author, The Additional Insured, an update of recent developments in Texas focusing on additional insured clauses and indemnity agreements
Co-author, Recent Legislation Concerning Attorneys, Texas Lawyers’ Insurance Exchange Newsletter
Panelist, Occurrence-Innocent Insured Pays Price for Guilty Third Party? Presented to the Insurance Practice Section of the State Bar of Texas

REPRESENTATIVE EXPERIENCE

Successfully defended an attorney in a two-week trial in federal court against fraud claims based on representations made during negotiations for the purchase of a multi-million-dollar interest in an oilfield services company.
Defended one of the world’s largest insurance brokers in a malpractice and breach of fiduciary duty case. This was one of the first cases to go to trial concerning broker duties related to the failure of Reliance. I obtained a take nothing judgment for the broker.
Defended an oilfield services company in a catastrophic injury case where the client destroyed the key piece of evidence after the accident. After a week-long trial, the jury returned a finding of minimal liability and damages against the client.
After a month long trial, obtained a take nothing judgment for a manufacturing company in a misappropriation of trade secrets case. Represented that client and several co-defendants in the appeal, and successfully reversed an unfavorable verdict against the co-defendants.
Successfully defended a liability insurer in a bad faith and Texas Insurance Code case concerning damages to a major pipeline. Obtained a summary judgment in the client’s favor, and persuaded the Fifth Circuit that the client’s coverage position was correct on appeal.
Represented an employer in an insurance coverage dispute all the way to the Texas Supreme Court, and persuaded the Texas Supreme Court to recognize coverage for the employer when an employee has committed an intentional act.
After being hired by a probate judge to defend him, successfully obtained the dismissal of a suit against him and on appeal defined the judicial immunity available to courts in Texas.
Obtained summary judgment for a law firm sued for malpractice over its handling of Sulzer implant cases. The summary judgment was affirmed on appeal.