Legal Docket: Federal court or hometown jury?

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NICK EICHER, HOST: It’s Monday the 16th of March. Glad to have you along for today’s edition of The World and Everything in It. 

Good morning. I’m Nick Eicher.

JENNY ROUGH, HOST: And I’m Jenny Rough. 

Time now for Legal Docket.

BARRETT: So it’s the 250th anniversary of the United States this year, as you well now. And I spend a lot of time working with the Constitution and a lot of time thinking about the history of the Constitution and its founding...

Justice Amy Coney Barrett appeared before an audience at the Library of Congress last week and sat for a live interview. 

Among other topics, she addressed the relationship between the Declaration of Independence and the Constitution.

BARRETT: The Declaration of Independence, which we celebrate this year, Abraham Lincoln described the Declaration as the promise and the Constitution as the means of fulfilling that promise. So most of my work deals with the means and the mechanisms.

She mentioned the portrait she chose when decorating her Supreme Court office. She wanted an influential woman from the founding era.

BARRETT: And obviously there were no women in the Continental Congress, there were no women in the Constitutional Convention who participated. … But I mean, when you think about who were the influential women at the time, I think Abigail Adams was just remarkable, and I identified with her in many ways, I mean, Abigail had a large family, she had five living children, but she was a sharp observer of the politics of the time, a fierce patriot.

She also gave an example of the genius of the Constitution and why it’s mostly written in general terms.

BARRETT: If we tried to have environmental regulations, for example, in our Constitution, it would get out of date very quickly.

EICHER: So things like that are left to the legislative process, and it brings us to our two cases that she and the court are considering right now.

Both involve environmental laws at their core, although the question before the Supreme Court focused narrowly on a technical but important question: which court should hear them—state or federal?

First case: Chevron vs. Plaquemines Parish. It takes us back to a distinct historical period.

ROOSEVELT: December 7th, 1941. A date which will live in infamy. The United States of America was suddenly and deliberately attacked by naval and air forces of the Empire of Japan.

ROUGH: The day after Pearl Harbor, the U.S. formally entered World War II. War planes would need enormous quantities of a specialized high octane aviation fuel, known as avgas. So the federal government partnered with the petroleum industry to supply it.

Plaquemines Parish is oil country, situated on Louisiana’s southern tip. A parish is the equivalent of a county, and Plaquemines Parish is one of the areas where Chevron’s predecessors and others dredged canals, drilled wells, and dumped wastewater. The oil companies then shipped the extracted crude to refineries to convert it to avgas for the military.

EICHER: Plaquemines Parish says the companies that extracted the oil also did damage to the coast in violation of state law. It sued, and wants Chevron to fix what it broke by restoring the disturbed marshland. 

Louisiana Solicitor General Benjamin Aguinaga:

AGUINAGA: They do not dispute that they dumped billions of gallons of produced water from oil wells directly into our marsh.

ROUGH: But the issue in this case, although narrow and technical, could be financially crucial: Is it heard in state or federal court? 

The last time related litigation stayed in Louisiana, the jury hit the company with a $750 million verdict. 

The lawsuit does involve state law, and typically that means state court. And that’s where the parish filed its lawsuit.

EICHER: But Chevron argues that a law known as the federal officer removal statute allows it to remove the case to federal court. Defendants like Chevron often prefer that, viewing it as a more neutral forum and state court as unfair.

Justice Brett Kavanaugh asked Chevron’s lawyer Paul Clement about that.

KAVANAUGH: There seems to be a concern about the fairness of the state court system that underlies your position in this case. What is that concern?

CLEMENT: So the concern is in a nutshell...you know, really since almost the framing of the country, there’s been this problem, this issue, this concern with issues that are nationally important but locally unpopular.… We’re not saying that they don’t get their chance to prove their case in court. It just has to be proven in a federal court. If they can prove their case in federal court, then everybody’s going to accept the outcome, and they’re not going to view it as something that’s a product of local prejudice.

ROUGH: That term local prejudice is important. What he means by it is the financial incentives of the jury. Clement argued that cases like these do not belong before juries drawn from the local communities suing the companies.

Clement emphasized in cases like this, the jury makes more of a difference than it typically would. 

In federal court, the jury would be drawn from people in the greater region—

CLEMENT: But it’s not going to be drawn exclusively from people that are going to get, you know, effectively a direct benefit if the parish collects a massive windfall.

KAVANAUGH: Do you have specific concerns in this case about the state court system, or is it more the general concerns, historical concerns?

CLEMENT: Well, it’s both. I’d be lying if I didn’t say that the verdict in the one case that went to trial here, which was roughly $750 million, for just one parish...

EICHER: But Louisiana’s Solicitor General Aguinaga said this case properly belongs in state court. Plaintiffs generally prefer state court for their own strategic reasons, and Justice Clarence Thomas asked about that:

THOMAS: As a practical matter, what difference does it make to be in state court as opposed to federal court?

AGUINAGA: Well, Justice Thomas, I’m not going to lie, that, you know, we have the same reasons for wanting to be in a state court that anybody who sues under state law wants to be in state court. We want the actual experts interpreting state law, especially when we get to the Louisiana Supreme Court on an important statute like this, and especially with respect to a problem that is so sweeping in scope.

The answer to where this case belongs will depend on how the Supreme Court interprets that federal officer removal statute. That would allow a case involving state law to be removed to federal court if Chevron is able to clear a few hurdles.

ROUGH: For example, Chevron must show that, as a private party, it was “acting under” a federal officer. And it must show the challenged conduct: that is, the conduct it’s being sued for is “related to” the federal contracts.

EICHER: Plaquemines Parish argues Chevron cannot clear those hurdles. It says its lawsuit targets Chevron for its conduct over oil extraction. 

But the federal contracts dealt with Chevron’s refining. Because Chevron could have gone to the open market and other suppliers for the raw crude and didn’t have to drill for oil in the fields itself, the parish says Chevron was not “acting under” a federal officer. Nor was its conduct “related to” fulfilling its World War II government contracts to refine petroleum.

ROUGH: Chevron’s lawyer disagreed. He said it’s a no brainer that Chevron was “acting under” a federal officer:

CLEMENT: The classic person who acts under a government official is a government contractor providing the government with what it needs to win a war.

He went on to say the kind of crude it produced was an indispensable component of the refined avgas it provided, so it satisfies the “related to” language, as well.

But Chief Justice John Roberts wanted to know how far that would reach.

ROBERTS: How far upstream do you carry “relating to?” Let’s say you have a vertically integrated company, you know, a lot of inputs, changes along the way, and at the end of it, they’re selling a product to the government. Does “relating to” go to the step that’s, you know, 10 steps above that, where they’re buying the materials, they’re shaping the materials, all this other stuff?

EICHER: Later, Justice Roberts pressed the issue on how far the phrase “related to” might stretch.

ROBERTS: I mean, is it a butterfly effect? You know, the butterfly flaps its wings, and it has the end result halfway around the world?

ROUGH: There’s little doubt Louisiana’s coastal land is eroding. About every 90 minutes, it loses about a football field of habitable land. 

The decision here should establish a uniform rule to determine not only whether this case belongs in federal court, but whether some of the other land loss cases belong there too. 

And, I should note that Justice Samuel Alito recused himself due to a financial conflict.

EICHER: The second case raises a different question of procedure: when can a company miss a federal filing deadline—and still get into federal court?

It’s Enbridge Energy vs. Nessel. Here, Michigan state officials sued Enbridge in state court to shut down what’s known as Line 5. Pipelines that begin in Wisconsin, run under the Straits of Mackinac, and end in Canada. The pipes crossing the Straits of Mackinac are exposed and at risk of being ruptured by anchor strikes from massive freight vessels.

Defendant Enbridge had 30 days to remove the case to federal court if it wished to do so. And it did, but it missed the deadline—by two years.

ROUGH: The question here is whether an exception applies. One possible exception is a doctrine called equitable tolling—which allows judges to extend deadlines when extraordinary circumstances prevent a party from filing on time.

Enbridge said it held off until a nearly identical case clarified that pipelines crossing the U.S.-Canadian border invoked foreign policy issues, thus bringing federal issues to light.

Justice Alito asked Michigan’s lawyer what would happen if the case proceeded in state court and it shut down the pipelines.

ALITO: I’d be interested in your response to the arguments … about the consequences for U.S.-Canadian relations. … What we’re told … shutting down Line 5 would result in a massive shortage of gas, diesel, and jet fuel in both Ontario and Quebec, not to mention end thousands of Canadian jobs.

EICHER: When Enbridge was at the lectern, Justice Kavanaugh asked about fairness.

KAVANAUGH: Why do you want to be in federal court?… Are you concerned that you would not get a fair shake in state court?

BURSCH: I’m guessing that the Michigan state courts have not dealt very often with the federal common law of foreign affairs jurisdiction. That’s something that’s uniquely situated to the federal system.

KAVANAUGH: Doesn’t come up that often in regular federal district court litigation that much either.

Michigan’s Solicitor General Ann Sherman jumped on that.

SHERMAN: We trust state courts to adjudicate issues to even federal questions. They’ve been doing that since the founding...

ROUGH: At one point, Justice Roberts dismissed Enbridge’s lawyer John Bursch thinking the questioning had finished.

ROBERTS: Thank you, counsel.

BURSCH: Thank you.

ROBERTS: Oh, I'm sorry, well, okay, do you have anything further?

JUSTICE SONIA SOTOMAYOR; Yes.

ROBERTS: I’m sorry. Why don’t you get back there? I was jumping the gun.

BURSCH: And I’m glad the chief will exercise his traditional equitable authority (laughter) to allow you to ask this important question.

The ruling will determine whether companies like Enbridge get more flexibility when federal issues surface late in the litigation, or whether missing the deadline shuts the door to federal court entirely.

And that’s this week’s Legal Docket.

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