Amicus Curiae Brief — Chevron USA Incorporated, et al., Petitioners v. Plaquemines Parish, Louisiana, et al.

No. 24-813

In the

Supreme Court of the United States

CHEVRON USA INCORPORATED, et al.,

Petitioners,

v.

PLAQUEMINES PARISH, LOUISIANA, et al.,

Respondents.

On Writ of Certiorari to the United States

Court of A ppeals for the Fifth Circuit

BRIEF FOR THE PELICAN INSTITUTE FOR

PUBLIC POLICY AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

James Baehr

Counsel of Record

Sarah Harbison

Pelican Center for Justice

Pelican Institute for Public Policy

400 Poydras Street, Suite 900

New Orleans, LA 70130

(504) 500-0506

james@pelicaninstitute.org

Counsel for Amicus Curiae

Pelican Institute for Public Policy

120619

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . ii

INTEREST OF AMICUS CURIAE . . . . . . . . . . . . . . . . 1

INTRODUCTION AND SUMMARY OF THE

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

I.

Louisiana’s Privatized Enforcement Model

is Incompatible with Impartial Justice . . . . . . . . 5

II. Louisiana’s Coastal Lawsuits Cost the

State’s Citizens in Lost Jobs and Revenue

While Failing to Restore the Coastline . . . . . . . 15

III. Fe der a l Ju r i sd ic t ion P r ov ide s t he

Necessary Forum Backstop . . . . . . . . . . . . . . . . 19

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

ii

TABLE OF CITED AUTHORITIES

Page

Cases

Boyle v. United Techs. Corp.,

487 U.S. 500 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Caperton v. A.T. Massey Coal Co.,

556 U.S. 868 (2009) . . . . . . . . . . . . . . . . . . . . . 14, 15, 20

City of New York v. Chevron Corp.,

993 F.3d 81 (2d Cir. 2021) . . . . . . . . . . . . . . . . . . . . . . 22

City of Oakland v. BP PLC,

969 F.3d 895 (9th Cir. 2020) . . . . . . . . . . . . . . . . . . . . 22

In re Asbestos Personal Injury Cases, Abrams et al.,

(Jackson Cnty. Cir. Ct., 19th Jud. Dist. Miss. 1993) . . . 22

In re Tobacco Litig.

(Miss. Ch. Ct. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Jefferson Cnty. v. Acker,

527 U.S. 423 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Latiolais v. Huntington Ingalls, Inc.,

951 F.3d 286 (5th Cir. 2020) (en banc) . . . . . . . . . . . . 21

Meredith v. Ieyoub,

700 So. 2d 478 (La. 1997) . . . . . . . . . . . . . . . . . . . . . 8, 9

Morales v. Trans World Airlines, Inc.,

504 U.S. 374 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

iii

Cited Authorities

Page

Nat’l Shooting Sports Found., Inc. v. James,

144 F.4th 98 (2d Cir. 2025) . . . . . . . . . . . . . . . . . . . . . 22

People ex rel. Clancy v. Superior Court,

705 P.2d 347 (Cal. 1985) . . . . . . . . . . . . . . . . . . . . . . . . 9

Pickering v. Hood,

No. 2012-M-00444-SCT, 2012 BL 197690

(Miss. Aug. 10, 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Pickering v. Langston Law Firm, P.A.,

88 So. 3d 1269 (Miss. 2012) . . . . . . . . . . . . . . . . . . . . 10

Printz v. United States,

521 U.S. 898 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

State v. Lead Indus. Ass’n, Inc.,

951 A.2d 428 (R.I. 2008) . . . . . . . . . . . . . . . . . . . . . 9, 22

Tumey v. Ohio,

273 U.S. 510 (1927) . . . . . . . . . . . . . . . . . . . . . 11, 14, 20

United States ex rel. Polansky v.

Executive Health Resources, Inc.,

599 U.S. 419 (2023) . . . . . . . . . . . . . . . . . . . . . . . . . 7, 10

Watson v. Philip Morris Cos.,

551 U.S. 142 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Willingham v. Morgan,

395 U.S. 402 (1969) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

iv

Cited Authorities

Page

Statutes

28 U.S.C. § 1442 . . . . . . . . . . . . . . . . . . . 3, 4, 19, 21, 23, 24

31 U.S.C. § 3730(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

31 U.S.C. § 3730(b)(2)–(4) . . . . . . . . . . . . . . . . . . . . . . 7, 10

31 U.S.C. § 3730(c)(1)–(4) . . . . . . . . . . . . . . . . . . . . . . . . . . 7

31 U.S.C. § 3730(c)(2)(A) . . . . . . . . . . . . . . . . . . . . . . . 7, 10

La. R.S. § 30:2205 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

La. R.S. § 39:1498 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

La. R.S. § 42:262 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

La. R.S. § 49:214.36(D) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

La. R.S. § 49:258 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

State and Local Coastal Resources Management Act

(SLCRMA), La. R.S. § 49:214.21 . . . . . 5-7, 10, 17, 19, 20

v

Cited Authorities

Page

Other Authorities

Am. Tort Reform Ass’n, The Return of the

Private Attorney General (2007) . . . . . . . . . . . . . . . 12

Am. Tort Reform Found., Everlasting Judicial

Hellholes, Judicial Hellholes, available at

https://judicialhellholes.org/reports/everlastingjudicial-hellholes-a-long-hot-20-years/ . . . . . . . . . . . 19

Am. Tort Reform Found., Judicial Hellholes

2018–2019 (2018), https://www.judicialhellholes.

org /wp-content/uploads/2018/12/judicialhellholes-report-2018-2019.pdf . . . . . . . . . . . . . . . . . 12

Am. Tort Reform Found., Judicial Hellholes

2022–2023: Louisiana, available at https://

judicialhellholes.org / hellhole/2022-2023/

louisiana/ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Arthur R. Wardle, The Proposed Freeport-McMoRan

Settlement: Ineffective by Design (Pelican

Inst. 2022), available at https://pelicanpolicy.

org/reports/the-proposed-freeport-mcmoransettlement-ineffective-by-design/ . . . . . . . . . . . . 17, 18

vi

Cited Authorities

Page

Bernard Nash, Milton Marquis & Divonne

Smoyer, Beyond Due Process – A Litigation

Pr imer: Challenging Attor ney General

and Other Government Contingency Fee

Ar rangements (Inst. for Legal Reform,

Dickstein Shapiro LLP, Oct. 2010), https://

instituteforlegalreform.com /w p-content /

uploads/2020/10/contingencyfeemanual.pdf . . . . 13, 14

Big Payday Will Go to Lawyers Representing

Parishes in State Coastal Litigation, WWLTV (Oct. 17, 2016), https://www.wwltv.com/

a r ticle /news/investigations/ big-paydaywill-go-to-lawyers-representing-parishesin-state-coastal-litigation/289-336476433 . . . . . 11, 12

Bill Pryor, Curbing the Abuses of Government

Lawsuits Against Industries, Presentation to

the Am. Legislative Exch. Council (Aug. 11, 1999) . . . 11

Co mm o n In t e r es t , Jo in t Pr ose c u ti o n &

Confidentiality Agreement Regarding Coastal

Litigation Under the State & Local Coastal

Resources Management Act, Ex. B to Att’y

Gen.’s Opp’n to Mot. for Summ. J. on the

Parish’s Right to Pursue Claims Related to

Uses of State Concern, Parish of Cameron

v. Auster Oil & Gas, Inc., No. 10-19582 (38th

Jud. Dist. Ct., Cameron Par., La., Div. A

(hereafter, “Joint Prosecution Agreement”) . . . . . . . 6

vii

Cited Authorities

Page

Daniel J. Erspamer, The High Cost of Coastal

Litigation, Pelican Institute (May 30, 2025),

https://pelicanpolicy.org/legal-regulatory/

the-high-cost-of-coastal-litigation/ . . . . . . . . . . . 16, 21

Freeport-McMoRan to Pay $100M in First

Settlement in Louisiana Coastal Damage

Suits, Insurance Journal (Sept. 30, 2019),

https://w w w.insurancejournal.com /news/

southcentral/2019/09/30/542611.htm . . . . . . . . . . . . . 17

Gavin Roberts, Ph.D., The Cost of Lawsuit Abuse:

An Economic Analysis of Louisiana’s Coastal

Litigation (Pelican Inst. 2019), available at

https://pelicanpolicy.org/wp-content/uploads/

2019/10/Pelican-Institute_Coastal-LawsuitFINAL.pdf . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17

John Carmouche, Letters: History and Justice on

Side of Coastal Parishes Fighting Rapacious

Oil Companies, T h e A dvocat e (May 19,

2020), https://www.theadvocate.com/baton_

rouge/opinion/letters/letters-history-andjustice-on-side-of-coastal-parishes-fightingrapacious-oil-companies/article_977bcd169a05-11ea-ad1b-63253998b5a0.html . . . . . . . . . . . . . . 2

Lea h G odesk y, St at e At t o r n eys Gen er al

a n d Co n tin ge n c y Fe e Ar r a n ge m e n t s:

An Affront to the Neutrality Doctrine?,

42 Colum. J.L. & Soc. Probs. 587 (2009) . . . . . . . . . 13

viii

Cited Authorities

Page

Margaret A. Little, Pirates at the Parchment

Gates: How State Attorneys General Violate

the Constitution and Shower Billions on

Tr ial Lawyers, Competitive Enterprise

Institute, Issue Analysis No. 3 (2017) . . . . . . . . . . . . 13

Martin H. Redish, Private Contingent Fee Lawyers

and Public Power: Constitutional and Political

Implications, 18 Sup. Ct. Econ. Rev. 77 (2010) . . . . 13

R A N D I n st . for C i v i l Ju st ic e , Asbes t os

Litigation (2005), https://www.rand.org/pubs/

monographs/MG162.html . . . . . . . . . . . . . . . . . . . . . . 22

Sarah Harbison, Government Cronyism Exposed

in Louisiana Coastal Drilling Lawsuit, Pelican

Institute (July 25, 2023), https://pelicanpolicy.

org/legal-regulatory/government-cronyismexposed-in-louisiana-coastal-drilling-lawsuit/ . . . . . 6

The Federalist No. 80 (Alexander Hamilton), in

The Federalist Papers (Avalon Project ed.,

Yale Law Sch.), https://avalon.law.yale.edu/

18th_century/fed80.asp . . . . . . . . . . . . . . . . . . . . . 3, 20

T h e T r i a l - L a w y e r Be h i n d t h e C o a s t a l

Suits, LA Swamp Watch, https://w w w.

laswampwatch.com /the -watch /the -tr iallawyer-behind-the-coastal-suits . . . . . . . . . . . . . . . . 11

ix

Cited Authorities

Page

Theresa Schmidt, Oil Companies Settle with

Cameron Parish for Undisclosed Amounts in

Coastal Damages Suit, KPLC (Dec. 13, 2023,

10:20 PM EST), https://w w w.kplctv.com/

2 0 2 3 / 1 2 / 13 /oi l - c omp a n i e s - s et t le -w it h cameron-parish-undisclosed-amounts-coastaldamages-suit/ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

W i l l i a m M c C o l l u m , J r. , P a y - t o - P l a y :

Protecting Ta xpayers f rom Campaign

Finance Abuses, Heritage Found. Legal

Memorandum No. 46 (Oct. 19, 2001) . . . . . . . . . . . . . 12

Constitutional Provisions

La. Const. art. II, § 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

La. Const. art. IV, § 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

U.S. Const. amend. XIV . . . . . . . . . . . . . . . . . . . . . . . . . 15

1

INTEREST OF AMICUS CURIAE

The Pelican Institute for Public Policy is a nonprofit, non-partisan research institute whose mission

is to research and develop policy solutions that advance

individual liberty, free enterprise, and opportunity for

all Louisianans.1 Founded in 2008, the Pelican Institute

believes every Louisianan should have the opportunity to

flourish in communities where good opportunities abound

and economic prosperity is achievable through hard work

and ingenuity.

The Pelican Institute has conducted extensive

research on Louisiana’s coastal litigation, including

economic analyses of these lawsuits’ impact on the state’s

economy and workforce. As an organization committed to

the rule of law and constitutional governance, the Pelican

Institute is concerned about arrangements that privatize

sovereign enforcement power and create regulatory

uncertainty that harms economic opportunity.

Amicus has standing to address this Court because

the issues presented directly undermine the Institute’s

mission of creating opportunity and prosperity for all

Louisianans. The constitutional questions in this case are

inextricably linked to the economic principles the Pelican

Institute champions: predictable rule of law, constitutional

federalism, and protection of interstate commerce from

state-level overreach.

1. Pursuant to Supreme Court Rule 37.6, amicus curiae

states that no counsel for a party authored this brief in whole

or in part, and no party or counsel for a party made a monetary

contribution intended to fund the preparation or submission of this

brief. No person other than amicus curiae made such a monetary

contribution.

2

Amicus seeks to assist this Court by providing its

research and policy analysis demonstrating the real-world

economic consequences that flow from overly narrow

interpretations of federal officer removal, particularly

when states circumvent federal jurisdiction over

contractors who acted under federal authority.

INTRODUCTION AND

SUMMARY OF THE ARGUMENT

This case confronts a structural defect the Framers

anticipated and Congress addressed. Louisiana has

privatized sovereign enforcement of its coastal statute by

ceding core decisions to private lawyers operating under

fee-shifting arrangements, 2 who steer suits into locally

elected courts while state officials agree not to endorse

defendants’ substantive defenses. That model erodes due

process, undermines legislative control over public funds,

and invites local partiality precisely of the sort Alexander

2. Private parish counsel sometimes dispute the label

“contingency-fee” and characterize their contracts as “feeshifting” arrangements instead. See, e.g., John Carmouche,

Letters: History and Justice on Side of Coastal Parishes

Fighting Rapacious Oil Companies, T he A dvocate (May 19,

2020), https://www.theadvocate.com/baton_rouge/opinion/letters/

letters-history-and-justice-on-side-of-coastal-parishes-fightingrapacious-oil-companies/article_977bcd16 -9a05-11ea-ad1b63253998b5a0.html. But those contracts still condition payment on

success and tie fees to damages awards or judicial determinations

after judgment. Whether styled “contingency” or “fee-shifting,”

the effect is the same: private counsel stand to profit significantly

if the litigation produces a recovery, creating identical incentive

structures and due-process risks. Indeed, the danger of judicial

bias is heightened where the presiding judge later determines

the fee award.

3

Hamilton described when he urged federal jurisdiction

where “State tribunals cannot be supposed to be impartial

and unbiased.” See The Federalist No. 80 (Alexander

Hamilton), in The Federalist Papers (Avalon Project ed.,

Yale Law Sch.), https://avalon.law.yale.edu/18th_century/

fed80.asp. It also imposes measurable economic harms

on the very public the enforcement is supposed to help,

producing opaque “stealth settlements” that enrich

private counsel while failing to restore the coast.

Congress supplied the forum backstop for this

problem. Section 1442 ensures that disputes “relating to”

acts under federal direction are heard in a neutral federal

court. Read as Congress wrote it, and as this Court and

the en banc Fifth Circuit have previously instructed, it

squarely protects federal contractors from being forced to

litigate such claims in local forums that combine private

financial interests with public power. The judgment below

narrows that protection. It should be reversed for three

key reasons.

First, Louisiana’s joint-prosecution arrangement

cedes state enforcement authority to private counsel with

direct pecuniary stakes. As part of this arrangement, the

State agreed not to endorse any substantive defenses,

and private lawyers retained on fee-shifting terms

assumed investigative and prosecutorial control for the

parishes. Unlike qui tam actions with built-in sovereign

safeguards, this scheme allows private profit to dictate

public enforcement. That structure raises profound due

process concerns when the same lawyers also fund judicial

campaigns and stand to collect hundreds of millions in

fees.

4

Second, the lawsuits themselves harm the very

citizens they purport to protect. Empirical analysis

demonstrates that litigation risk costs Louisiana $44–

113 million annually, reduces offshore drilling activity,

and eliminates thousands of jobs. Settlements like the

proposed Freeport-McMoRan agreement substitute

speculative “environmental credits” for real restoration,

and other confidential “stealth settlements” fail to provide

public transparency or accountability. The result is

wasteful government spending, diminished revenue, and

a persistent “Judicial Hellhole” reputation that drives

investment and jobs out of the State.

Third, the Fifth Circuit’s narrow reading of Section

1442 enables these constitutional and economic harms.

Congress deliberately broadened the statute in 2011 to

cover all claims “relating to” federally directed conduct,

and this Court has long instructed that it must be liberally

construed. Properly applied, federal officer removal

supplies the neutral Article III forum Hamilton envisioned,

preventing local tribunals from adjudicating cases where

jurors may themselves benefit from multimillion-dollar

awards and where private financial incentives skew public

enforcement.

The Louisiana model is not unique and will spread

if unchecked. Other states have already experimented

with retroactive liability theories against disfavored or

deep-pocketed industries. This Court should reverse

and reaffirm that Section 1442 applies whenever claims

relate to federally directed conduct and a colorable federal

defense is asserted, ensuring the federal forum necessary

to preserve impartial justice, stable federalism, and

economic opportunity.

5

ARGUMENT

I.

Louisiana’s Privatized Enforcement Model is

Incompatible with Impartial Justice.

Louisiana’s experiment in coastal erosion litigation

has produced a dangerous arrangement in American law:

the wholesale delegation of state sovereign enforcement

authority to private trial attorneys who answer to financial

incentives instead of the public interest. Such an approach

is fundamentally incompatible with impartial justice,

particularly considering the campaign contributions

provided by these attorneys to critical elected judicial

and executive decisionmakers overseeing the same cases.

The State’s involvement in the coastal erosion cases

has been over ten years in the making. The first parish

suits under the State and Local Coastal Resources

Management Act (SLCRMA), La. R.S. § 49:214.21 et

seq., were filed in 2013 by private plaintiffs’ counsel on

behalf of Plaquemines Parish against dozens of oil and gas

companies, seeking damages for wartime oil extraction

and production activities dating back to the 1940s. These

counsel encouraged other parishes to quickly follow

suit and filed copycat actions against many of the same

defendants on behalf of those parishes.

For several years, the State stood aside, but in June

2016, it joined the fray by executing a “Common Interest,

Joint Prosecution, and Confidentiality Agreement”

with several coastal parishes and their private lawyers

that bound state officials to coordinate strategy. Most

strikingly, the State promised in the agreement that

“[n]o party to this Agreement shall at any time expressly or

6

impliedly endorse any substantive defenses or exceptions

raised by any defendant” in any SLCRMA case. Common

Interest, Joint Prosecution & Confidentiality Agreement

Regarding Coastal Litigation Under the State & Local

Coastal Resources Management Act, Ex. B to Att’y Gen.’s

Opp’n to Mot. for Summ. J. on the Parish’s Right to Pursue

Claims Related to Uses of State Concern at 4, Parish of

Cameron v. Auster Oil & Gas, Inc., No. 10-19582 (38th

Jud. Dist. Ct., Cameron Par., La., Div. A (hereafter, “Joint

Prosecution Agreement”).

The State’s implementation of this Joint Prosecution

Agreement has not been encouraging. Public record

requests by the Pelican Institute revealed that the

State’s own public resource agency essentially abandoned

oversight of enforcement and ceded the cases to private

counsel. Secretary Thomas Harris testified under oath

that the Louisiana Department of Energy and Natural

Resources delegated investigative and enforcement

functions to private counsel, did not investigate the

underlying regulatory allegations before the State

intervened, and bypassed its administrative compliance

track in favor of lawsuits, “farming out” the Department’s

responsibility rather than exercising it. See Sarah

Harbison, Government Cronyism Exposed in Louisiana

Coastal Drilling Lawsuit, Pelican Institute (July 25, 2023)

(citing Deposition of Thomas Harris), https://pelicanpolicy.

org/legal-regulatory/government-cronyism-exposed-inlouisiana-coastal-drilling-lawsuit/.

This delegation of enforcement power violates basic

constitutional principles. Enforcement of state law is

a sovereign function entrusted to accountable, elected

officials, not to private lawyers operating on fee-shifting

7

contracts. See Printz v. United States, 521 U.S. 898, 920

(1997) (“The Constitution thus contemplates that a State’s

government will represent and remain accountable to its

own citizens.”). While Congress has authorized limited

private enforcement with qui tam suits under the False

Claims Act, it built in significant safeguards that preserve

public control. A relator must file suit under seal and serve

the complaint and supporting evidence on the United

States alone, the Government has time to decide whether

to intervene, intervention gives the Government primary

responsibility for the case, courts may stay discovery

to protect related investigations, and the Government

may later intervene for good cause. United States ex rel.

Polansky v. Executive Health Resources, Inc., 599 U.S.

419, 425–27 (2023) (summarizing 31 U.S.C. § 3730(b)(2)–

(4), (c)(1)–(4)). The Government may even dismiss a False

Claims Act action over a relator’s objection. Polansky,

599 U.S. at 419.

While Louisiana law authorizes parishes with approved

coastal programs to file SLCRMA enforcement suits and

the Attorney General to intervene or even supersede

counsel, see La. R.S. § 49:214.36(D) and La. Const. art.

IV, § 8, the scheme does not mirror the False Claims

Act’s safeguards that reserve ultimate litigation control

to the sovereign (sealed filing, mandatory service, and an

express dismissal right). See 31 U.S.C. § 3730(b)(2), (c)(2)

(A). And in practice, the State entered a joint-prosecution

arrangement that delegated core enforcement functions

to private counsel without prior state investigation and

agreed not to endorse any defenses (however meritorious)

that were uncovered in the matter. Guardrails these are

not.

8

Louisiana law likewise constrains contingencyfee public enforcement at the statewide level based

on principles of public control and transparency. The

Louisiana Supreme Court has held the Attorney General

lacks authority to deploy contingency-fee contracts to

collect debts or enforce state law absent express legislative

authorization. Meredith v. Ieyoub, 700 So. 2d 478, 481–83

(La. 1997). State statutes channel the retention and

supervision of private counsel and the terms under which

fees may be paid. See, e.g., La. R.S. § 49:258; La. R.S.

§ 42:262 (“In the event that the attorney general, or any

state agency, board or commission, not including any

public postsecondary education institution, is represented

by a special attorney or counsel, the special attorney or

counsel shall not be compensated for such representation

on a contingency fee or percentage basis in the absence of

express statutory authority.”). This is because diverting a

percentage of recoveries (or fee shifting) to private counsel

effects a disposition of state funds that belongs to the

Legislature, not the executive, and conflicts with statutes

requiring that “all sums recovered” be deposited into the

treasury before any expenditure. See La. Const. art. II,

§ 2; Meredith, 700 So. 2d at 482–84; La. R.S. § 30:2205(A)

(1) (“[a]ll sums recovered” in environmental cases must

be paid into the state treasury); La. R.S. § 39:1498(A)

(professional services contracts require an available

appropriation). In short, Louisiana treats contingencyfee public enforcement as a fiscal decision reserved to

the Legislature to protect accountability, appropriations

oversight, and uniform deposit of state recoveries.

These due process concerns remain just as present

when the State intervenes on the side of parishes that

have hired attorneys to enforce state environmental laws

9

under fee-shifting arrangements. The same structural

risks identified in Meredith v. Ieyoub arise: namely, the

delegation of sovereign enforcement power to financially

interested counsel, without legislative authorization or

fiscal oversight. 700 So. 2d at 478, 482–84 (La. 1997). When

the State lends its name and authority to suits steered by

private contingency-fee lawyers, the financial incentives

of counsel blur the line between public enforcement

and private gain, undermining both the Legislature’s

prerogative over state funds and the public’s confidence

that prosecutions are driven by the public interest rather

than the prospect of fee recovery. That combination of

sovereign power and private profit magnifies the risk of

arbitrary enforcement and coercive settlements that due

process is designed to prevent.

Other state courts have squarely held that contingencyfee arrangements in public enforcement matters are

constitutionally permissible only if the Attorney General

retains “absolute and total control” over the litigation.

State v. Lead Indus. Ass’n, Inc., 951 A.2d 428, 477 (R.I.

2008) (adopting People ex rel. Clancy v. Superior Court,

705 P.2d 347 (Cal. 1985)). Those decisions make clear

that public enforcement counsel must pursue the public

interest, not private gain, and that government attorneys

must preserve control to ensure neutrality. Lead Indus.,

951 A.2d at 476–77 (“At the risk of being repetitive, we

would emphasize that the Attorney General’s discretionary

decision-making must not be delegated to the control of

outside counsel; rather, it is the outside counsel who must

serve in a subordinate role.”); Clancy, 705 P.2d at 352.

Louisiana’s arrangement does the opposite. The

joint prosecution agreement binds the State to the

10

private lawyers’ strategy by forbidding state officials

from “expressly or impliedly endors[ing] any substantive

defenses or exceptions raised by any defendant” in

any SLCRMA case. See Joint Prosecution Agreement,

supra, at 4. That clause eliminates the State’s discretion

to evaluate defenses on the merits, even when they are

compelling, and subordinates the sovereign’s interests to

the profit-driven agenda of counsel.

The agreement also requires coordination of “litigation

strategy, discovery, and trial preparation” with private

attorneys, without preserving veto power or independent

oversight for the State. Id. at 2–3. By contrast, under the

False Claims Act, Congress required complaints to be

filed under seal, gave the Government primary authority

to conduct litigation if it intervenes, and empowered it to

dismiss an action over the relator’s objection. 31 U.S.C.

§ 3730(b)(2)–(4), (c)(2)(A); Polansky, 599 U.S. at 425–27.

Louisiana’s Joint Prosecution Agreement thus strips

away precisely the safeguards that other jurisdictions and

Congress have deemed essential to preserve impartial

justice in the face of private financial incentives.

The question of who gets paid under these arrangements

(the public fisc or well-connected private lawyers) shows

why such safeguards matter. Other states have confronted

this issue directly. In Mississippi, the state supreme

court required law firms to deposit multimillion-dollar

contingency fees into the state treasury, holding that

such recoveries constitute public funds. Pickering v.

Langston Law Firm, P.A., 88 So. 3d 1269, 1277 (Miss.

2012); Pickering v. Hood, No. 2012-M-00444-SCT, 2012

BL 197690 (Miss. Aug. 10, 2012). Former Alabama

Attorney General William Pryor likewise warned that

11

Attorneys General reliance on contingency-fee contracts

“circumvents the appropriations process and undermines

legislative accountability for public funds.” Bill Pryor,

Curbing the Abuses of Government Lawsuits Against

Industries, Presentation to the Am. Legislative Exch.

Council (Aug. 11, 1999). Louisiana’s arrangement does

the opposite: instead of ensuring that recoveries flow into

the state treasury under legislative oversight, it directs

potentially hundreds of millions of dollars to private

attorneys operating on contingency-fee or fee-shifting

contracts.

Moreover, this Court has long held that prosecutorial

or judicial actors may not hold a financial interest in the

outcome of cases they prosecute or adjudicate. Tumey

v. Ohio, 273 U.S. 510, 523 (1927). Yet the very lawyers

deputized to represent the Parishes (and supported by

the State) stand to collect hundreds of millions of dollars

in fees if their suits succeed. See Big Payday Will Go

to Lawyers Representing Parishes in State Coastal

Litigation, W WL-TV (Oct. 17, 2016), https://w w w.

wwltv.com/article/news/investigations/big-payday-willgo-to-lawyers-representing-parishes-in-state-coastallitigation/289-336476433 (hereafter “Big Payday”).

Those same lawyers and their affiliated Political

Action Committees (PACs) have contributed millions

to the campaigns of Louisiana governors, attorneys

general, and state judges, including more than $4 million

influencing elections just since 2012 according to federal

and state records. The Trial-Lawyer Behind the Coastal

Suits, LA Swamp Watch, https://www.laswampwatch.com/

the-watch/the-trial-lawyer-behind-the-coastal-suits (last

visited Sept. 9, 2025). They have also devoted millions to

12

defeat political figures opposed to the lawsuit. See Big

Payday, supra (The Talbot, Carmouche & Marcello firm

“spent nearly $2 million to defeat U.S. Sen. David Vitter.”).

Most concerning for public perceptions of fairness, the law

firm driving the coastal erosion suits donated thousands

of dollars directly to the judge overseeing the case that

resulted in a $745 million jury verdict. Am. Tort Reform

Found., Judicial Hellholes 2018–2019 28 (2018), https://

www.judicialhellholes.org/wp-content/uploads/2018/12/

judicial-hellholes-report-2018-2019.pdf. They have also

donated extensively to important state appellate and

Supreme Court judges.

The risks Louisiana’s coastal model presents are

neither speculative nor unique. Commentators, courts,

and scholars have long warned that contingency-fee public

enforcement invites corruption, undermines prosecutorial

neutrality, and erodes public confidence. Former Florida

Attorney General William McCollum cautioned that such

contracts “create the potential for outrageous windfalls

or even outright corruption for political supporters of the

officials who negotiated the contracts.” William McCollum,

Jr., Pay-to-Play: Protecting Taxpayers from Campaign

Finance Abuses, Heritage Found. Legal Memorandum

No. 46 (Oct. 19, 2001). Empirical work likewise finds that

“contingency fee contracts have routinely been awarded to

law firms that are among the largest contributors to the

attorney general’s election campaign.” Am. Tort Reform

Ass’n, The Return of the Private Attorney General

(2007). The problem is concrete: in Mississippi’s tobacco

litigation, Attorney General Mike Moore retained his

top campaign contributor, Dickie Scruggs, who received

$1.4 billion (35% of the state’s recovery) for negotiating

the settlement. In re Tobacco Litig. (Miss. Ch. Ct. 1997).

13

Similar abuses surfaced in New Mexico, where Attorney

General Gary King approved contingency-fee awards

up to 35% for firms that were also major campaign

donors. Scholars explain why: deputizing private counsel

“outsources quintessentially sovereign functions to

private actors whose profit motives are incompatible

with constitutional neutrality,” and “inject[s] private

financial interests into the sovereign’s prosecutorial role,”

effectively “commandeer[ing] the government’s powers

of enforcement for private enrichment.” See Martin H.

Redish, Private Contingent Fee Lawyers and Public

Power: Constitutional and Political Implications, 18

Sup. Ct. Econ. Rev. 77, 80 (2010); Leah Godesky, State

Attorneys General and Contingency Fee Arrangements:

An Affront to the Neutrality Doctrine?, 42 Colum. J.L. &

Soc. Probs. 587, 590 (2009); Margaret A. Little, Pirates

at the Parchment Gates: How State Attorneys General

Violate the Constitution and Shower Billions on Trial

Lawyers, Competitive Enterprise Institute, Issue

Analysis No. 3, at 2 (2017).

Other jurisdictions have recognized the corrosive

appea ra nce of such a r ra ngement s a nd i mposed

prophylactic rules. At least twelve states (including

California, Connecticut, New Jersey, Ohio, Pennsylvania,

and West Virginia) have enacted “pay-to-play” restrictions

that prohibit state contractors, including contingency-fee

counsel, from contributing to the campaigns of officials who

award or oversee their contracts. Bernard Nash, Milton

Marquis & Divonne Smoyer, Beyond Due Process—A

Litigation Primer: Challenging Attorney General and

Other Government Contingency Fee Arrangements 15 &

n.17 (Inst. for Legal Reform, Dickstein Shapiro LLP, Oct.

2010), https://instituteforlegalreform.com/wp-content/

14

uploads/2020/10/contingencyfeemanual.pdf. These

statutes reflect a basic principle: public enforcement must

not be overly entangled with campaign finance. Louisiana,

however, has no comparable restrictions. The result is

that the very lawyers who stand to profit from judgments

against defendants simultaneously bankroll the election

of the officials empowered to direct or decide those cases.

When state-authorized enforcement counsel are both

financial beneficiaries of judgments and financiers of the

judges who decide these cases, the appearance of impartial

justice atrophies. The combination of profit-driven

enforcement and campaign finance entanglement magnifies

the due process concerns at the heart of Tumey and

Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 884 (2009),

where the Court warned that campaign expenditures can

create a “serious, objective risk of actual bias.”

In Caperton, the Supreme Court held that due

process required recusal where a litigant’s principal had

spent about $3 million to help elect a state supreme court

justice who then cast a decisive vote in that litigant’s favor.

556 U.S. 868 (2009). The Court emphasized an objective

test: recusal is constitutionally required when, “under a

realistic appraisal of psychological tendencies and human

weakness,” the supporter’s role in placing the judge

on the case creates a serious risk of actual bias—even

absent any quid pro quo or proof of subjective bias. Id. at

872, 883–87. Applying that standard, the Court stressed

the relative size of the support (Blankenship’s spending

exceeded all other support combined and was roughly

300% of the justice’s own campaign spending), the total

election spending, and the timing/foreseeability that a $50

million judgment against the supporter’s company would

15

soon be before the newly elected justice. Id. at 884–86.

On those “extreme facts,” the probability of bias rose to

an unconstitutional level; the judgment was reversed and

remanded. Id. at 886–87, 890.

So too, here: public campaign-finance records reflect

contributions by the law firm driving the Plaquemines

coastal suits and its principals to the judge presiding

over the docket and to other state decisionmakers with

supervisory or appellate authority while these cases were

pending; under Caperton’s objective framework, the size

and timing of those donations relative to the elections

and the litigation create the very probability of bias the

Fourteenth Amendment forbids, and heightened scrutiny

is warranted.

Louisiana’s joint prosecution arrangement with private

counsel is therefore flawed in principle and corrosive in

practice. By binding the State to never consider legitimate

defenses, by delegating sovereign power to financially

interested lawyers, and by forcing those cases before state

judges where those lawyers have generously contributed,

the State has abandoned its duties to the public. In all of

it, as next explained, the public has lost.

II. Louisiana’s Coastal Lawsuits Cost the State’s

Citizens in Lost Jobs and Revenue While Failing

to Restore the Coastline.

The Pelican Institute’s comprehensive economic

empirical work demonstrates that the coastal suits

impose persistent deadweight losses on Louisiana’s

economy, harming the citizens of the state they are

purportedly meant to help. The Institute’s economic

16

analysis found that “Louisiana’s economy loses $44.4

million to $113.0 million per year due to lawsuit risk.”

Gavin Roberts, Ph.D., The Cost of Lawsuit Abuse: An

Economic Analysis of Louisiana’s Coastal Litigation 2

(Pelican Inst. 2019), available at https://pelicanpolicy.org/

wp-content/uploads/2019/10/Pelican-Institute_CoastalLawsuit-FINAL.pdf. The same study quantified the

fiscal hit to the public, explaining that “given that the

average royalty rate in the coastal zone of Louisiana is

approximately 20 percent, we estimate Louisiana’s state

and local governments lose $8.9 million per year to $22.6

million per year in royalty revenue.” Id. at 2. A recent

Pelican summary ties these dynamics to persistent

uncertainty, relocation of investment, and prolonged

restoration shortfalls, reinforcing the measured effects

reported in Roberts. Daniel J. Erspamer, The High Cost

of Coastal Litigation, Pelican Institute (May 30, 2025),

https://pelicanpolicy.org/legal-regulatory/the-high-costof-coastal-litigation/.

Lawsuit risk distorted real economic activity as well.

The study reports that “increased litigation risk has

significantly decreased drilling activity in Louisiana’s

state offshore region.” Id. at 5. It led to “77 fewer wells

in the offshore Louisiana region during the 34 months

after 2013,” with “the majority of the impact of litigation

risk” falling “in drilling for crude oil.” Id. at 9–10. A

robustness check “reapplying the difference-in-differences

methodology using the trimmed federal sample” still found

that litigation risk “decreased the number of wells drilled

in the Louisiana state offshore region by 53 oil wells in the

34 months beginning in January 2014.” Id. at 13.

17

These activity declines translated into measurable

harm for workers: “Total employment across these four

[oil and gas] occupations was steady in May 2012 and May

2013 at 12,850, but by May 2014 it had fallen by more than

2,000 employees to 10,620,” and “total earnings” fell from

“approximately $518 million and $537 million” to “around

$458 million,” “a decrease of almost $70 million.” Id. at

18–19.

Meanwhile, the settlement mechanisms championed

by private counsel do nothing to correct purported

environmental harms for the benefit of the public. In 2019,

Freeport-McMoRan agreed to a proposed settlement with

12 coastal parishes in order to cap its exposure in the

SLCRMA suits and avoid years of litigation uncertainty.

See Freeport-McMoRan to Pay $100M in First Settlement

in Louisiana Coastal Damage Suits, Insurance Journal

(Sept. 30, 2019), https://www.insurancejournal.com/

news/southcentral/2019/09/30/542611.htm. The Pelican

Institute’s extensive analysis of the proposed agreement

concluded that it is “designed to fail, providing an easy

victory for those spearheading the litigation but ultimately

doing little to nothing for coastal restoration,” and that

“the proposed settlement does not even attempt to provide

clear guardrails for program spending.” Arthur R.

Wardle, The Proposed Freeport-McMoRan Settlement:

Ineffective by Design 2, 6 (Pelican Inst. 2022), available

at https://pelicanpolicy.org /reports/the-proposedfreeport-mcmoran-settlement-ineffective-by-design/.

The deal “dictates that the state-managed fund that

Freeport-McMoRan would contribute to should attempt

to generate and sell credits into existing environmental

credit programs to pay down Freeport-McMoRan’s

outstanding balance,” yet “ensuring that credits go only

18

to projects that would not have otherwise happened” is

absolutely critical for an environmental credit program to

work properly. Id. at 10, 9. The predictable policy result

of this construct is backward: “The likely result of the

settlement, if approved, would be to encourage wasteful

government spending that exacerbates Louisiana’s budget

problems for minimal coastal benefit,” which is why “the

ineffective proposed settlement should be concerning to

all Louisianians, regardless of their position on the coastal

lawsuits.” Id. at 13, 3.

As flawed as the settlement agreement proposal

publicized was (which was ultimately never accepted), a

later 2023 settlement in Cameron Parish with BP, Shell,

and Hilcorp was announced without any public disclosure

of terms. Theresa Schmidt, Oil Companies Settle with

Cameron Parish for Undisclosed Amounts in Coastal

Damages Suit, KPLC (Dec. 13, 2023, 10:20 PM EST),

https://www.kplctv.com/2023/12/13/oil-companies-settlewith-cameron-parish-undisclosed-amounts-coastaldamages-suit/. The secrecy surrounding that agreement

reveals a central danger of this privatized enforcement

regime: settlements are negotiated and finalized outside

the channels of public accountability, leaving citizens

and even other state actors unable to scrutinize whether

the terms advance genuine restoration goals or merely

enrich the lawyers who engineered them. When state law

requires that all recoveries for environmental harms be

directed into transparent, legislatively controlled funds,

clandestine settlements that divert or obscure recovery

not only conflict with statutory design but also erode the

public’s trust that enforcement is being carried out for

their benefit rather than for private gain. In practice,

these “stealth settlements” transform what should be

19

sovereign enforcement of state law into a series of lawyerdriven bargains that substitute opacity and speculation

for the transparency and fiscal discipline the Constitution

demands.

Independent observers confirm the broader damage

to Louisiana’s economy. The American Tort Reform

Foundation has concluded that “meritless coastal litigation

continues to bog down the state’s economy and drive jobs

to neighboring states.” Am. Tort Reform Found., Judicial

Hellholes 2022–2023: Louisiana, available at https://

judicialhellholes.org/hellhole/2022-2023/louisiana/. The

same group has named Louisiana an “everlasting judicial

hellhole” as it has appeared on its list for 11 years. Am.

Tort Reform Found., Everlasting Judicial Hellholes,

Judicial Hellholes, available at https://judicialhellholes.

org/reports/everlasting-judicial-hellholes-a-long-hot-20years/. The coastal litigation is hardly engendering the

kind of pro-growth reputation that generates business

formation and investment.

III. Federal Jurisdiction Provides the Necessary Forum

Backstop.

Louisiana’s experience with state-sponsored private

coastal litigation illustrates precisely why Congress

enacted the federal officer removal statute. Section 1442

ensures that disputes over conduct undertaken for the

United States, even if politically unpopular, are heard

in a neutral federal forum. That safeguard is especially

vital when a state outsources sovereign enforcement to

financially interested private counsel and funnels cases

into locally elected courts.

20

The Founders anticipated this danger. Hamilton

explained that federal jurisdiction must extend to cases

“in which the State tribunals cannot be supposed to be

impartial and unbiased.” The Federalist No. 80 (Hamilton),

supra. Louisiana’s privatized enforcement model, combined

with its judicial selection system, amplifies exactly those

concerns. Consider Cameron Parish, where a single jury

drawn from a population of fewer than 6,000 residents

would be tasked with deciding a multimillion-dollar case

against a global oil company. Because settlements and

judgments can flow directly into parish coffers, jurors

would face the prospect of meaningful personal financial

benefit from their verdicts, a structure that collides with

the core due process principle that decisionmakers may

not have a pecuniary interest in the outcome. See Tumey,

273 U.S. at 523; Caperton, 556 U.S. at 884.

Louisiana’s approach compounds those concerns

by attempting to impose retroactive liability. Through

expansive interpretations of SLCRMA, parishes seek

to punish oil production undertaken decades before the

statute’s enactment, including wartime production carried

out under federal direction. That move sidesteps the act’s

explicit grandfather clause and epitomizes legal and

regulatory unpredictability. Allowing such suits to proceed

not only punishes federally directed wartime production

after the fact, but also risks deterring companies from

cooperating with future federal directives, such as rapidly

increasing energy output in a national emergency, for fear

that decades later they will be exposed to retroactive

state-law liability. See Boyle v. United Techs. Corp., 487

U.S. 500, 511–13 (1988) (recognizing federal common-law

defenses where state liability would conflict with uniquely

federal interests). Retroactive reinterpretations of this

21

kind not only deter investment and distort economic

activity, they also magnify the constitutional need for a

neutral federal forum where due process and rule-of-law

constraints can be enforced. Pelican’s policy analysis

likewise explains that many of the alleged “permit”

violations predate Louisiana’s coastal permit regime and

arose from federally directed World War II efforts, and

that “holding someone accountable for a law that did not

exist creates a terrifying legal precedent.” Erspamer,

High Cost of Coastal Litigation, supra.

Congress has long recognized that federal officer

removal is the appropriate backstop against such

structural risks. It deliberately broadened Section 1442

in 2011, replacing the narrow “causal nexus” standard

with the expansive “relating to” formulation. The Fifth

Circuit has confirmed that the statute must be liberally

construed in favor of removal. See Latiolais v. Huntington

Ingalls, Inc., 951 F.3d 286, 292–93 (5th Cir. 2020) (en

banc). “Relating to” requires only a “connection with, or

reference to” federally directed activity. Morales v. Trans

World Airlines, Inc., 504 U.S. 374, 383–84 (1992). And

this Court has repeatedly instructed that federal officer

removal is not to be read narrowly, protecting those sued

“for an act under color of office.” Jefferson Cnty. v. Acker,

527 U.S. 423, 431 (1999); Willingham v. Morgan, 395 U.S.

402, 407 (1969); Watson v. Philip Morris Cos., 551 U.S.

142, 147 (2007).

The Louisiana coastal suits show why these protections

matter. When states farm out enforcement to counsel

remunerated by fee-shifting, tie recovery to local budgets,

and revive liability for conduct that was lawful or federally

directed at the time, the risk of partisan incentives, forum

22

manipulation, and biased adjudication escalates. Federal

removal directly mitigates those dangers by substituting

an Article III forum where impartiality is structurally

preserved.

Unfortunately, Louisiana is unlikely to be the last

state to experiment with such arrangements. Other states

have already shown a willingness to impose retroactive

liability on deep-pocketed or disfavored industries. For

example, Rhode Island attempted to impose sweeping

public nuisance liability on lead paint manufacturers for

lawful sales made decades earlier, an effort the state

supreme court ultimately rejected. See State v. Lead

Indus. Ass’n, Inc., 951 A.2d 428 (R.I. 2008). Mississippi’s

asbestos docket similarly became a magnet for thousands

of retroactive claims based on exposures occurring

decades prior, generating unpredictable liability and

distorting settlement incentives. See, e.g., In re Asbestos

Personal Injury Cases, Abrams et al., (Jackson Cnty.

Cir. Ct., 19th Jud. Dist. Miss. 1993); RAND Inst. for

Civil Justice, Asbestos Litigation 61 (2005), https://www.

rand.org/pubs/monographs/MG162.html. California

pursued climate change nuisance suits seeking damages

for greenhouse gas emissions dating back generations,

despite no such prohibitions existing at the time. See City

of Oakland v. BP PLC, 969 F.3d 895 (9th Cir. 2020); see

also City of New York v. Chevron Corp., 993 F.3d 81 (2d

Cir. 2021). New York enacted a statute creating a publicnuisance cause of action against gun industry members

for marketing/distribution practices; the Second Circuit

upheld the law against a facial challenge. See Nat’l

Shooting Sports Found., Inc. v. James, 144 F.4th 98 (2d

Cir. 2025).

23

These examples confirm that Louisiana’s retroactive

coastal permitting suits are part of a broader trend: using

novel statutory or common-law theories to punish longpast conduct that was either lawful or federally directed

at the time. Without clear affirmation that Section 1442

applies broadly, similar regimes will spread elsewhere,

heightening the very risks Hamilton identified and that

Congress sought to remedy. The Court should therefore

reaffirm that federal officer removal applies whenever

claims relate to federally directed conduct and a colorable

federal defense is asserted, ensuring the neutral forum

that both the Constitution and Congress demand.

24

CONCLUSION

As the Louisiana example compellingly demonstrates,

allowing states to outsource sovereign enforcement to

private counsel and pursue retroactive claims for federally

directed conduct undermines due process, distorts local

economies, and erodes the separation of powers, while

doing nothing to restore the environment. Section 1442

provides the necessary federal forum backstop against

these dangers. For the foregoing reasons, this Court

should reaffirm the breadth of federal officer removal and

reverse the judgment below.

Respectfully submitted,

James Baehr

Counsel of Record

Sarah Harbison

Pelican Center for Justice

Pelican Institute for Public Policy

400 Poydras Street, Suite 900

New Orleans, LA 70130

(504) 500-0506

james@pelicaninstitute.org

Counsel for Amicus Curiae

Pelican Institute for Public Policy

DATED: September 11, 2025