I. Introduction

“Commitment to the rule of law provides a basic assurance that people can know what to expect whether what they do is popular or unpopular at the time.”[1]

- Justice O’Connor

The Federal Officer Removal Statute (§ 1442(a)) creates an avenue to remove a case from a state court into a federal court.[2] Congress enacted this statute during the War of 1812 because federal customs officials were brought into state court to enforce an unpopular federal embargo with England.[3] The federal government does not let hostile states paralyze unpopular federal government functions.[4] This statute’s fundamental principle assures that federal officers can remove a case into federal court for carrying out unpopular federal decisions.[5] This rule of law eventually expanded to anyone sued in state court who assisted a federal officer in carrying out his duties.[6]

The Federal Officer Removal Statute plays a part in today’s litigation, even more than one would have originally thought. Currently, cities and states are suing oil companies in state court under product liability for their purported role in causing climate change and their role in marketing oil and gas without adequate warning.[7] The plaintiffs in the climate change litigation seek damages totaling “hundreds of billions of dollars from private parties.”[8] Oil companies have tried to remove the cases to federal court[9] by unsuccessfully attempting to use federal officer removal as a basis.[10]

In Mayor of Baltimore v. BP P.L.C., the defendants tried to invoke federal officer removal (in both the trial court and appellate court) by asserting that they produced, sold, or both, oil and gas for the government or on government land.[11] However, the complaint pertains to oil and gas production as well as promotional statements from oil and gas companies unfettered by any warnings to the public, which according to the plaintiffs, resulted in climate change.[12] The Federal Officer Removal Statute requires defendants to relate the charged conduct in the complaint to a federal officer direction.[13] However, this was not done regarding the promotional statements in the complaint.[14] Thus, the trial court and appellate court both found that the oil companies’ arguments did not meet federal officer removal requirements.[15] Based on the facts, the defendants could have used stronger arguments to render a favorable ruling for federal officer removal.[16]

By assessing existing caselaw and looking at certain facts, this Note presents two different practical solutions that the defendants in Mayor of Baltimore v. BP P.L.C. could have used for a more compelling federal officer removal argument. This Note aspires to assist litigants in contemplating and assessing all avenues for federal officer removal, rather than just soft-pedaling the elements of federal officer removal.[17] The expectation is that this Note will guide future litigants in overcoming the challenges of meeting the Federal Officer Removal Statute.

This Note will first dive into Mayor of Baltimore v. BP P.L.C. and the rationale for the court’s decision in the federal officer removal issue. Second, this Note will argue that the oil companies should have relied on the National Petroleum Technology Program (NPTP)[18] to satisfy the Federal Officer Removal Statute.[19] Third, this Note will present how the defendants could have also relied on the National Petroleum Council (NPC)[20] to meet the Federal Officer Removal Statute.[21] Last, this Note will explore and refute the reasons the oil companies did not use these arguments.[22]

II. Mayor of Baltimore v. BP P.L.C.

A. Background

A defendant can successfully invoke federal officer removal when the defendant acts under the direction of a federal officer and someone sues the defendant in state court in relation to the direction from a federal officer.[23] Under the Federal Officer Removal Statute, that person can remove the case from a state court into a federal court.[24] To remove a case under federal officer removal, the defendant must prove the following elements: “(1) that it ‘act[ed] under’ a federal officer; (2) that it has ‘a colorable federal defense;’ and (3) that the charged conduct was carried out for [or] in relation to the asserted official authority.”[25]

In Mayor of Baltimore v. BP P.L.C., the plaintiffs sued twenty‑six different energy companies in Maryland state court[26] for causing climate change.[27] Baltimore claimed that not only did these twenty-six companies pollute via carbon-dioxide emissions but they (or their predecessors) also instituted an industry-wide campaign to circumvent regulations by actively discrediting climate change.[28]

B. Promotional Statements

The complaint listed several instances showing industry-wide behavior discrediting climate change, taking place primarily in the 1990s.[29] The plaintiffs also listed instances attributed to Exxon and Exxon’s CEO, Lee Raymond.[30] Several instances cited involved the direction and coordination of the American Petroleum Institute (API), an industry nonprofit organization, who was not a party in the lawsuit.[31]

The plaintiffs alleged that:

(1) In 1996, Exxon released a climate-change publication where Exxon CEO Lee Raymond stated in the preface that immediate action is “unnecessary” because scientists have recognized that time exists to “better understand the climate system.”[32] He also pronounced the “greenhouse effect as ‘unquestionably real and definitely a good thing.’”[33]

(2) Also in 1996, API issued a comprehensive report critical of carbon-dioxide increases and the necessity to reduce consumption or any further policing of the oil and gas industry.[34] The report began with the statement: “[T]here is no persuasive basis for forcing Americans to dramatically change their lifestyles to use less oil.”[35]

(3) In 1997, Exxon CEO Lee Raymond gave a speech in Beijing stating that it is “neither prudent nor practical” to harshly curb emissions.[36] He went on to say that currently there is no economically viable alternative, and Congress should not impose laws that would favor one energy source over another, especially when the need for alternative energy sources has not been proven.[37]

(4) In 1997, Exxon paid for advertisements in the New York Times arguing that climate change economic analysis was flawed, justifying a delay in climate change regulation in order for science to accurately access climate change.[38]

(5) In 1998, API developed a Global Climate Science Communication Plan that involved average citizens’ awareness of climate change uncertainties.[39] They used this plan to persuade people that the climate change policies in the Kyoto Protocol[40] were unnecessary to stem climate change.[41] The API also emphasized that the government should use long‑term solutions rather than short-term reactions.[42]

C. Removal Attempt

Chevron filed for removal to federal court asserting removal was proper under, inter alia, federal officer removal.[43] Baltimore moved to remand to state court, which Chevron opposed by arguing three theories for federal officer removal.[44] First, Citgo, one of the defendants, had a contract with the Navy Exchange Service Command (NEXCOM) to “advertise, supply, and distribute gasoline and diesel” to NEXCOM who resold it at their filling stations to military personnel on Navy bases.[45] Second, the oil companies relied on producing oil and gas on the Outer Continental Shelf, which is regulated by the Secretary of the Interior.[46] Third, a predecessor of Chevron produced oil for the U.S. Navy in the Elk Hills Naval Petroleum Reserve.[47]

The U.S. District Court did not agree with Chevron and found that federal removal was not proper.[48] Specifically, the U.S. District Court found that the defendant’s asserted arguments of federal officer removal were too remote to the plaintiff’s complaint.[49] The court articulated that even if these situations qualified as “acting under” a federal officer, they did not relate to the actions of promoting oil and gas in the complaint.[50]

Chevron appealed and the Fourth Circuit affirmed the ruling of the U.S. District Court.[51] The Fourth Circuit expressed that “acting under” must involve a federal officer’s “subjection, guidance, or control” over the defendant, and the action complained of must be “an effort to assist, or to help carry out, the duties or tasks of the federal superior.”[52]

First, the Fourth Circuit stated that the Citgo sales contract with NEXCOM was just like any other sales contract because the oil was an “off-the-shelf” product.[53] The court found this lacked government supervision and reasoned that any product the government bought would then fall into federal officer removal if the court accepted the defendant’s assertion.[54]

Second, the Fourth Circuit deemed the Outer Continental Shelf leases as examples of common regulation.[55] The fact that the government highly regulates an industry does not transform the charged conduct into acting under federal officer activity for the purpose of § 1442(a).[56] The court noted that the leases did not “dictate” the oil companies to produce any oil or gas.[57]

The Fourth Circuit then expressed that even if the first two situations (the sales contract and lease) had met the acting-under element, those two situations failed to relate a federal officer direction to the promotional statements in the complaint, which is the third element of federal officer removal.[58] “When read as a whole, the Complaint clearly seeks to challenge the promotion and sale of fossil fuel products without warning and abetted by a sophisticated disinformation campaign.”[59]

Third, regarding the Elk Hills Naval Petroleum Reserve argument, the Fourth Circuit stated that the defendants neither proved they acted under a federal officer nor did they show any relation to the promotion of oil and gas, which was needed for the Federal Officer Removal Statute in this case.[60] The court said that the defendants would have been acting under the Navy’s direction if the Navy had ordered the defendants to produce oil or gas,[61] but the defendants brought no evidence before the court that the defendants carried out any Navy direction.[62] The court asserted that even if the defendants had met that element, they still did not meet the “related to” element because the defendants did not show how this related to the promotional statements.[63] Therefore, the court found that all three situations did not meet the federal officer removal elements.[64] The Supreme Court granted certiorari to hear arguments about whether federal officer removal should be the only removal judgment capable of appellate review.[65] Ultimately, in a 7-1 decision, the Supreme Court stated that when officer removal is involved, the appeals court can review other avenues for removing a case to federal court and vacated and remanded the case to the Fourth Circuit for further proceedings.[66]

III. Analysis

A. The National Petroleum Technology Program Could Have Made the Difference in the Federal Officer Removal Issue

The NPTP could be a hook that would make for a more compelling federal officer removal argument in Mayor of Baltimore v. BP P.L.C. First, this section will lay out the circumstances in which the United States created the NPTP. Second, this section will discuss what exactly the NPTP is and how it works. Last, this section will show how the NPTP meets the federal officer removal statute.

1. The Creation of the National Petroleum Technology Program.

The United States created the NPTP in the 1990s when the United States wanted to make a genuine effort to become energy independent and to produce more oil and gas domestically.[67] The United States did this for several reasons. First, oil and gas were the foreseeable energy sources for the next twenty years.[68] Second, domestic production was dwindling, forcing the United States to import most of its oil.[69] Imported oil accounted for a majority share of the United States’ trade deficit.[70] Third, the days of the “easy petroleum finds” were gone, and oil was left behind in existing fields due to oil companies not performing enhanced‑oil‑field‑recovery methods.[71] This waste of oil (leaving oil in mature fields) spurred the NPTP.[72] Through proper field management and innovative techniques, the United States could take advantage and capture the oil that was left in the ground in those existing fields.[73]

2. How the National Petroleum Technology Program Works.

The NPTP implemented the federal government’s ideas.[74] The United States had theories for potential oil recovery enhancements that it wanted to try in certain types of reservoirs.[75] Oil companies submitted bids and designed experiments that tested the United States’ theories in existing, mature fields.[76] The Department of Energy (the DOE) selected and approved the winning experiments to implement the federal government’s test theories,[77] and the United States paid for half of each project’s expenses.[78]

Under the NPTP, the United States partnered with oil companies to test the United States’ theories in the real world.[79] The oil company was in charge of the day-to-day program and had to keep the DOE informed on the project’s progress by providing quarterly and yearly reports, which were needed for ongoing governmental approval of the selected program.[80] If the United States did not agree with the methods or thought that the test site steered too far away from the United States’ objective, the experiment would not continue.[81] During and at the end of the test experiment, the oil company was obligated to promote the experiment and its results to the public and other industry stakeholders.[82]

This program was not a small program. In 1998, “[t]he National Petroleum Technology Office ha[d] 369 active technology development projects” that took place all over the United States.[83] Several of the defendants were heavily involved in the program.[84] For instance, in 1998 alone, BP had at least five projects, Chevron had at least three projects, and Conoco had at least three projects.[85] Exxon and the API were also involved in the NPTP.[86] These projects lasted for several years,[87] which the United States government bankrolled.[88] From 1978 to 2007, government-backed funding to increase the production of oil cost the U.S. government about $224 million.[89]

3. The National Petroleum Technology Program Meets the Elements of Federal Officer Removal.

The NPTP satisfies the elements of the Federal Officer Removal Statute.[90] Under the Federal Officer Removal Statute, the defendant must prove “(1) that it ‘act[ed] under’ a federal officer, (2) that it has ‘a colorable federal defense,’ and (3) that the charged conduct was carried out for [or] in relation to the asserted official authority.”[91] The NPTP meets the first element because the oil companies acted under the DOE while they were in the program.[92] The NPTP meets the second element because the oil companies can claim government-contractor immunity when they were acting on the government’s behalf while testing and promoting the government’s own theories on domestic oil and gas production.[93] Last, the NPTP meets the third element of the Federal Officer Removal Statute because the charged conduct of promoting and producing oil and gas relates to the actions the oil companies were contractually obligated to perform while in the NPTP.[94]

a. The National Petroleum Technology Program Meets the First Element of Federal Officer Removal. To satisfy the first element of federal officer removal, the defendant must prove “that it ‘act[ed] under’ a federal officer.”[95] In this case, the NPTP meets the acting-under element of federal officer removal because the oil companies were assisting the federal government in achieving the U.S. DOE’s goal of increasing domestic oil and natural gas production.[96] The United States wanted to increase domestic oil production,[97] and it had theories it wanted to test in order to achieve that objective.[98] So then, it enlisted oil companies by contract to do its bidding and carry out these very specific test theories, while paying for half the experiment.[99] Additionally, the United States even expressed that it was a partner in the venture with the oil companies.[100] The United States had approval authority, and if its test objective was not met, the experiment would no longer continue.[101] These facts clearly prove that the oil companies were acting under the direction of the federal government, forming a relationship and a contractual partnership.[102]

b. The National Petroleum Technology Program Meets the Second Element of Federal Officer Removal. Second, the oil companies can satisfy the “colorable federal defense” element because the oil companies can assert the federal government‑contractor immunity defense. The defendant does not have to prove a colorable defense to meet this element; the defendant just has to show that the defense is possible.[103] The purpose of federal officer removal is to litigate the merits of federal immunity defenses in federal court because federal immunity defenses are not available in state courts.[104] Here, there are two different ways the defendant can argue for the federal defense of government‑contractor immunity: under a design defect approach or a failure to warn approach.[105]

        i. Government-Contractor Immunity for Design Defect. The purpose of invoking government-contractor immunity in a design defect cause of action is to shield government contractors from liability for tortious harm caused by products they were contractually obligated to make, per a government special request.[106] Courts will apply the Boyle Test, where the defendant has to prove “(1) the United States approved reasonably precise specifications; (2) the [product] conformed to those specifications; and (3) the supplier warned the United States about the dangers in the use of the [product] that were known to the supplier but not to the United States.”[107]

Here, the defendants can assert they meet the first element of the Boyle Test because the government not only approved the reasonably precise specifications but also dictated them often.[108] The defendants can meet the second element of the Boyle Test because the oil companies conformed to the government’s specific instructions to test experimental methods to capture more oil.[109] Last, the defendants can satisfy the third element of the Boyle Test because the United States most likely knew more information than the oil companies regarding the potential impact of emissions on the climate, relieving the oil companies of this burden.[110] Thus, the oil companies could successfully argue that they meet the elements of the Boyle Test and should be allowed to assert government-contractor immunity. Even though a successful argument for the Boyle Test could be asserted, the oil companies could also claim a strong argument for government-contractor immunity for failure to warn.

        ii. Government-Contractor Immunity for Failure to Warn. The oil companies could have used the government‑contractor immunity for failure to warn because the government contracts forced the oil companies to promote the methods of getting more oil and gas out of the ground, thereby promoting oil and gas. This approach grants a government contractor the ability to avoid liability because the contractor was merely following the government’s directions.[111] The test for government-contractor immunity for failure to warn is an adapted form of the Boyle Test.[112] The defendant must prove that “(1) the government exercised its discretion and approved certain warnings; (2) the contractor provided the warnings required by the government; [and] (3) the contractor warned the government about dangers in the equipment’s use that were known to the contractor but not to the government.”[113]

Courts have articulated that promotion and warnings are linked because a warning will reduce a promotion’s effect, especially if the promotion is governmentally sanctioned.[114] Here, the oil companies can satisfy the first element of the adapted Boyle Test because the government forced the oil companies to produce and promote oil and gas.[115] Also, the defendants meet the second element of the adapted Boyle Test when the oil companies show that they carried out certain promotions.[116] Last, the oil companies should be relieved of the burden of the adapted Boyle Test’s third element because the government knew far better than any oil company the dangerous impact fossil fuels could have on climate.[117] Thus, the oil companies can also satisfy all the elements of the government-contractor immunity for failure to warn claims.

Therefore, because the government contract forced the oil companies to produce and promote more oil and gas, the oil companies could assert the federal defense of government‑contractor immunity, thereby satisfying the second element of the Federal Officer Removal Statute requiring defendants to have a colorable defense.[118]

c. National Petroleum Technology Program Satisfies the Third Element for Federal Officer Removal. To satisfy the third element of federal officer removal, the defendant must relate the charged conduct to a direction by a federal officer.[119] The NPTP related the conduct to the direction of a federal officer because the government contract forced oil companies to produce and promote oil and gas—the conduct specified in the complaint.[120] Under the government contract, the oil companies had to state and advocate to the public for the government test processes to squeeze more oil out of the ground.[121]

Here, the government contract encouraged the oil companies to try certain methods to produce more oil.[122] It then required the oil companies to promote the methods that squeezed the most oil out of the ground at the government’s behest as well as to promote the technology transfer program.[123] While the government never explicitly instructed the companies not to warn about climate change, they forced the oil companies to promote these oil and gas methods, which resulted in the promotion of oil and gas unfettered by any warnings.[124]

The charged conduct in the complaint alleging an industry‑wide campaign to promote oil and gas were expressions of promoting the use and need for the technology transfer programs or the federally authorized promotion techniques outlined within the NPTP.[125] For instance, in Global Warming: Who’s Right? (a publication cited by the plaintiffs) Lee Raymond stated that “[t]he world needs more opportunities for technology transfer.”[126] Additionally, Lee Raymond’s 1997 speech in China and the API’s Making the Right Choices publication (cited in the plaintiff’s complaint) both declared that technology transfer programs were the key to success for a sustainable future.[127] Thus, these alleged promotions actually fulfilled requirements that the oil companies had to perform to meet their contractual obligations to the U.S. government.

This is similar to Sawyer, where the government dictated specific warnings on boilers to a boiler manufacturer but failed to stop the boiler manufacturer from warning its employees of the asbestos in the boilers.[128] The Sawyer court held those specific warnings in the government contract were sufficiently related to all aspects of warnings (including the lack thereof) about the boilers, and any potential future suit about the warnings.[129] Here, the government’s contractually obligated methods to produce and promote more oil and gas sufficiently relate to all aspects of production and promotion, which includes any warnings (or lack thereof) that would become the subject of Mayor of Baltimore v. BP P.L.C.[130] Essentially, because the government specified some promotion, all aspects of promotions (warnings) were covered. There is even an argument that the forced promotion relates more to a lack of warning claim than the relation in Sawyer because unlike Sawyer, any warnings would be contrary to the government’s objective. Thus, the NPTP could satisfy the third and final element of the Federal Officer Removal Statute.

Under the Federal Officer Removal Statute, the defendant must prove “(1) that it ‘act[ed] under’ a federal officer, (2) that it has ‘a colorable federal defense,’ and (3) that the charged conduct was carried out for [or] in relation to the asserted official authority.”[131] First, the NPTP meets the “acted under” element because the defendants entered a government contract with the DOE to provide and promote specific recovery methods to capture more oil. Second, the NPTP meets the colorable defense element because the defendants can claim federal immunity while acting under a specified government contract to test the government’s theories on how to increase domestic oil and gas production. Last, the NPTP satisfies the related-to element of Federal Officer Removal Statute considering that the defendants were under contract to produce and promote oil and gas, which is the charged conduct in the complaint.

In summary, the NPTP meets all the elements of federal officer removal and, had Chevron made these arguments, it likely would have been allowed to properly remove the case.[132] This proves that by taking a closer look at the circumstances involved and by not soft-pedaling the argument, oil and gas companies can successfully make an assertion for federal officer removal. However, the NPTP may not be the only approach to satisfy all the elements of the Federal Officer Removal Statute because the defendants can also make an argument for federal officer removal by looking at a federal advisory committee, the NPC.

B. The National Petroleum Council Could Have Made the Difference in the Federal Officer Removal Issue

The NPC, a federal advisory committee, could be another hook for a more compelling federal officer removal argument in Mayor of Baltimore v. BP P.L.C. First, this section will lay out the purpose of a federal advisory committee. Next, this section will discuss the NPC and its advice to the U.S. Energy Secretary. Last, this section will show how the NPC meets the Federal Officer Removal Statute.

1. Federal Advisory Committees Are the Advisors to the Advisors.

When cabinet officials need advice, they seek guidance from federal advisory committees.[133] For instance, a Food & Drug Administration (FDA) federal advisory committee handles whether the FDA should approve, through emergency powers, a specified vaccine during a pandemic.[134] Federal advisory committees are hand-selected private- and public-interested parties who issue ad hoc reports and advice for any matter requested.[135] Ultimately, a federal advisory committee assists the President in the vital role of guiding and carrying out the President’s agenda because it only acts when called upon by a senior federal government official.[136]

Governed by the Federal Advisory Committee Act (FACA), a federal advisory committee must adhere to strict rules.[137] Some of these rules include:

  • “The committee’s agenda must be initiated and formulated by the government.”[138]

  • The people on the advisory committee are hand-selected by the agency department head overseeing that committee.[139]

  • A federal government official co-chairs the federal advisory committee.[140]

  • Each committee must remain balanced and unbiased in its viewpoints and recommendations.[141]

  • All meetings are open to the public and announced in the Federal Register within a certain time before each meeting takes place.[142]

This is far different from any lobbying group. A lobbying group just needs to register with the Senate and then advocate for an industry or company on its behalf.[143] By contrast, a federal advisory committee is a federally chartered and chaired, hand‑selected committee delegated to perform certain tasks at the behest of the cabinet.[144]

As illustrated above, federal advisory committees play a vital role in the U.S. government by only giving advice and recommendations when there is a crossroad on certain topics. The next questions should be: Was there such a crossroad in the instance of Mayor of Baltimore v. BP P.L.C.? Did the government use a federal advisory committee during the period the complaint actions took place that would apply to federal officer removal in Mayor of Baltimore v. BP P.L.C., and if so, what was the reason?

The NPC is a federal advisory committee under the direction of the Energy Secretary.[145] Since the NPC was established in 1946, it has been an essential advisor for Administrations.[146] The President of the United States recharters the NPC every two years by finding that the NPC’s advice is incalculable and necessary to assist the President in running the country and carrying out his policy initiatives.[147]

The Energy Secretary hand selects and appoints the NPC members and sets the agenda for the NPC.[148] The NPC has around 200 members, including representatives of the oil and gas industry as well as environmental experts, academics, and financial professionals.[149] One former member of the NPC is Lee Raymond (CEO of Exxon, whom the plaintiffs cite in their complaint).[150] Another is H. Laurance Fuller, former President of Amoco Corporation.[151]

On December 30, 1994, Energy Secretary Hazel O’Leary sent an official request letter to the NPC setting the NPC’s agenda.[152] The letter stated in part:

Accordingly, I request the National Petroleum Council to identify the issues and policies that will most likely shape the industry over the next twenty-five years, and advise me on the most constructive and realistic resolution of these issues with respect to the future vitality of both the industry and the economy. . . . Your analysis should focus in particular, although not exclusively, on government policies intended to reconcile energy needs and environmental compliance strategies . . . .[153]

When the Energy Secretary requests it, the NPC is delegated with the federal task of advising the Energy Secretary.[154] This is far beyond the scope of any lobbying group merely trying to capture the Energy Secretary’s ear. Secretary O’Leary’s letter is an obvious example of the Energy Secretary going to the NPC, its trusted hand-appointed advisors, when the Secretary needs advice on a particular issue.[155] The Energy Secretary formally requested the NPC to do her bidding and advise her on “the most constructive and realistic resolution” on resolving the nation’s energy needs while also being mindful of environmental concerns.[156]

After the Energy Secretary’s request, the NPC created the Committee of Future Issues from its membership to look into this matter.[157] The Committee of Future Issues was co-chaired by William H. White, Deputy Secretary of Energy.[158] This specialized committee had a membership that was smaller than the council’s membership, as it was comprised of thirty-three individuals including Lee Raymond.[159] H. Laurance Fuller, NPC’s chair at the time, was also on this small committee.[160]

In 1995, the Committee of Future Issues published its findings and recommendations in a report titled Future Issues, A View of U.S. Oil & Natural Gas to 2020.[161] The report first laid out how important the oil and gas industry is as the lifeblood of the nation’s economy.[162] It then listed eight different issues that the oil and gas industry will face within the next twenty-five years.[163] One issue the report listed involved the environment, specifically global warming.[164]

This government-sanctioned, government-led report also made recommendations as to the actions that the oil and gas industry and the federal government needed to take in dealing with issues such as global warming.[165] One recommendation the NPC made to handle future issues in the oil and gas industry regarding climate change was that the government “[u]se sound science in legislative, regulatory, and judicial processes.”[166] Sound science, according to the report, meant using scientific analysis in “an objective manner with no intentional distortion of the results to favor a specific viewpoint.”[167] Another recommendation in the report was that the DOE perform a cost–benefit analysis before implementing any regulation that would hinder the oil and gas industry from meeting the nation’s energy needs.[168]

The NPC report also recommended that the oil and gas industry and the government provide more public education about energy, science, and the economy.[169] The report stressed that informed citizens could make sensible choices, thereby encouraging their government representatives to make sensible choices as well.[170] Citizens cannot be informed if they are not aware of the repercussions. Essentially, the NPC report stated that cost–benefit analyses should be required and that citizens needed to be aware of oil and natural gas’s critical role in the economy, as well as the known and unknown facts of scientific data related to climate change.[171] Thus, this government‑sanctioned, government-led report recommended the government and the oil and gas industry create more public awareness regarding science, energy, and the economy.[172] The Energy Secretary was pleased with the Committee’s report and implemented the NPC’s recommendations.[173] But this is not the end of a federal advisory committee’s duties.

The FACA requires transparency.[174] For instance, the federal advisory committee meetings must be announced in the Federal Register a certain number of days before the meetings occur.[175] This gives notice to the public of the meetings in case the public wants to attend.[176] Also, the meeting minutes must be made available to the public.[177] Additionally, the committee’s work product has to be made available to the public.[178] The oil companies could argue that Lee Raymond and H. Laurance Fuller were doing just that: making the NPC’s findings and recommendations known to the public, which they were required to do under the FACA.[179] Hence, when Fuller and Raymond committed the actions complained of, they were following the Energy Secretary’s guidance in implementing the NPC’s recommendations, in addition to carrying out legally mandated obligations. These facts about the NPC lay out a compelling argument as to why federal officer removal is proper in Mayor of Baltimore v. BP P.L.C.

3. The National Petroleum Council Satisfies All the Elements of the Federal Officer Removal Statute.

The NPC meets the three elements of the Federal Officer Removal Statute. Under the Federal Officer Removal Statute, the defendant must prove “(1) that it ‘act[ed] under’ a federal officer, (2) that it has ‘a colorable federal defense,’ and (3) that the charged conduct was carried out for [or] in relation to the asserted official authority.”[180] The NPC satisfies the first element because specific individuals, designated government employees, were acting under the direction of the Energy Secretary. The NPC fulfills the second element because the individuals can claim qualified federal immunity when they were acting on the government’s behalf to implement the NPC’s recommendations, in addition to carrying out their federal duties of relaying the NPC’s findings. Last, the NPC meets the third element of the Federal Officer Removal Statute because the charged conduct of promotion and sale of oil and gas relates to the NPC’s implemented recommendations, as well as their obligations to comply with the FACA.

a. National Petroleum Council Satisfied the First Element of the Federal Officer Removal Statute. Under the Federal Officer Removal Statute, the defendant must prove “that it ‘act[ed] under’ a federal officer.”[181] The defendants meet the first element of acting under because Fuller and Raymond were under the control of the Energy Secretary.[182] Fuller and Raymond were both members of the NPC and members of the Committee of Future Issues.[183] They laid out specific recommendations that the government and the oil industry must take in dealing with those issues based on the Energy Secretary’s request.[184]

Moreover, as members of the NPC, the U.S. government designated and specifically listed both individuals (Raymond and Fuller) as special employees within the federal government.[185] Their NPC membership continued throughout the time period in which the actions in the complaint took place.[186] Thus, when the complained of actions occurred, the government classified them as special, federal government employees that were acting in that capacity. Therefore, the NPC, and more specifically these individuals on the NPC, were under the control of the federal government and assisted the federal government in carrying out its federal policy initiatives.[187]

b. The National Petroleum Council Meets the Second Element of the Federal Officer Removal Statute. The defendant must allege a remotely possible “colorable federal defense.”[188] Here, the companies should be able to assert federal qualified immunity because the government designated Fuller and Raymond as federal employees at the time of the actions in the complaint, and they were assisting the implementation of government policy in that capacity.[189] Qualified immunity shields government officials from civil suits.[190]

“Qualified immunity balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.”[191] Courts generally look to a two-pronged test for deciding qualified immunity issues but retain discretion to decide outside the two-pronged test.[192] For the two-pronged test, first, the court asks if the plaintiff has asserted some statutory or constitutional rights violation.[193] If yes, then the court asks if that right was “clearly established” during the timeframe the complained of actions took place.[194]

Here, Fuller and Raymond, as special government employees due to their federal advisory committee membership, were eligible for qualified immunity because it is at least plausible that they were doing their duty as government employees at the time. Under federal law, presidential advisory committees must make their findings publicly available.[195] When the Executive endorses an advisory committee’s recommendations and pursues promotion of that policy, then “presidential advisory committees may serve purely political ends, as vehicles for communicating with Congress and the people, building support for proposals, or masking the government’s unwillingness to act.”[196]

Moreover, courts find that sending newsletters and relaying information to key individuals, which happens in a speech, fulfills this requirement.[197] Additionally, a D.C. District Court stated that when advisory committees form decisions collectively (as with the NPC) the responsibility of informing the public can fall on each of its members.[198] Thus, it is at the very least plausible that Raymond and Fuller were performing their statutory duty at the time, resulting in qualified immunity that shields them from civil suit unless their actions violated a clearly established legal right.[199] Baltimore does not assert any constitutional right violations because the plaintiffs are suing on product defect and failure-to-warn claims.[200] Therefore, qualified immunity should survive the two-pronged test. The defendants can claim a plausible colorable federal defense, meeting the second element of the Federal Officer Removal Statute.

c. The National Petroleum Council Satisfies the Third Element of the Federal Officer Removal Statute. Under the Federal Officer Removal Statute, the defendant must prove “that the charged conduct was carried out for (or in relation to) the asserted official authority.”[201] Here, the complaint concerns the sale and promotion of oil and gas.[202] Thus, the oil companies must prove how the NPC relates to the production and promotion of oil and gas in order to satisfy this element for federal officer removal.

Due to the complexities of the different instances listed in the plaintiff’s complaint, this section will first discuss how the NPC relates to the production of oil and then examine how the NPC relates to each individual instance.

        i. National Petroleum Council Relates to Producing Oil. The Energy Secretary asked the NPC for potential issues that would hinder oil companies from producing more oil and a “realistic resolution” to solve those issues.[203] The Energy Secretary was making sure there was a clear path unimpeded by unnecessary issues to produce more domestic oil aligning with government policy.[204]

        ii. National Petroleum Council Relates to the 1996 Exxon Climate Change Publication Promotion. In 1996, Exxon issued a climate change publication in which CEO Lee Raymond commented in the preface that taking action immediately is “unnecessary” given that scientists believe there is time “to better understand climate systems.”[205] Lee Raymond also stated that the greenhouse effect is “unquestionably real and definitely a good thing.”[206]

First, this publication relates to the NPC because the 1995 NPC report states that “[n]o current resolution is possible due to the lack of clear scientific understanding of the potential for global climate change,” which means time is needed to better understand climate change and formulate a solution.[207] One of the DOE’s stated missions was to maximize domestic oil recovery while reducing environmental compliance costs.[208]

The NPC recommended, and the government implemented, greater governmental and industry public outreach educating the public on energy and science.[209] The “unquestionably real and definitely a good thing” remark was referring to naturally occurring greenhouse gas emissions, which were vital in making Earth a livable habitat.[210] This section discussed what scientists know so far, keeping in line with what the NPC recommended.[211]

        iii. National Petroleum Council Relates to the 1996 API‑Issued Report Critical of Carbon Dioxide Build Up. One of the promotional statements listed in the complaint is that in 1996, the American Petroleum Institute (API) issued a report critical of carbon dioxide build up and the need to curb consumption or add any new regulations to the oil and gas industry.[212] The report the plaintiffs alluded to is subtitled “Making the Right Choices,”[213] which discusses several topics within the oil and gas industry: running out of oil; how markets steer society into more efficient energy decisions; the cost of alternatives; and some uncertainty surrounding climate change data.[214]

The oil companies can directly link this action in the complaint to the NPC. The topics discussed in the NPC 1995 Future Issues Report are the very ones discussed in the API “Making the Right Choices” report cited in the plaintiff’s complaint.[215] In fact, the report makes the same points for those topics. For instance, the API “Making the Right Choices” paper discusses the uncertainty in the consequences of burning fossil fuels, while the 1995 NPC report says that there is “little knowledge and high uncertainty about . . . climate impacts.”[216] The API “Making the Right Choices” paper discusses that carbon dioxide’s impact on the atmosphere is uncertain, while the 1995 balanced NPC report also states that the effects of carbon dioxide on the atmosphere is uncertain.[217] The list goes on and on. Also, the API “Making the Right Choices” report cites to the NPC a number of times.[218] Moreover, the NPC 1995 Future Issues report states that in order for the public to make informed “right” choices, they must know all the facts.[219]

Additionally, Lee Raymond was chairman of the API as well as a member of the NPC in 1996.[220] As such, he was a special government employee.[221] In summary, the plaintiff’s cited example was written by an organization where the president of the organization, a special government employee due to the NPC, was on the federal advisory committee that issued these exact findings. This all relates to the complaint because the actions in the complaint were performed by a special government employee trying to relay the findings in the NPC report, as well as carrying out the government’s policy.[222]

        iv. National Petroleum Council Relates to the 1997 Lee Raymond Speech in Beijing. Exxon CEO Lee Raymond expressed at a conference in Beijing in 1997 that it is “neither prudent nor practical” to severely curb emissions because no realizable alternative energy source exists.[223] He further stated that for this reason, Congress should not create laws preferring one energy source over another.[224] The 1995 NPC report relates to this action because the report declared that there was no urgent reason for the government to impose climate regulatory legislation given the amount of data that was still unknown.[225] Also, the 1995 NPC report articulated that there were no readily available alternatives to oil and natural gas.[226] The DOE even admitted that forecasted demand for oil and natural gas would increase in the foreseeable future.[227] Thus, this action tried to convey the findings of the NPC report, as well as express the viewpoints of the DOE.

        v. National Petroleum Council Relates to the 1997 Exxon Advertisement Stating that Climate Change Analysis Was Flawed. The plaintiff’s complaint cited an Exxon advertised article in the New York Times in 1997.[228] This article contended that the administration’s economic analysis of climate change was inconsistent, and for this reason there should be no climate change regulation until science can determine if it is necessary.[229]

Actually, the article asserted that two government economic analysis reports regarding climate change regulation were not favored within the Clinton Administration and that the government needed to perform a proper cost–benefit analysis to inform the public of the possible economic consequences.[230] This action relates to the NPC because the 1995 NPC report found and recommended—and the government implemented—that the DOE perform a cost–benefit analysis before the government implements any climate change legislation.[231] Thus, the article tried to relay the findings of the NPC report, in addition to carrying out the government’s stated policy.

        vi. National Petroleum Council Relates to the 1998 API‑Developed Global Climate Science Communication Plan. The complaint states that in 1998, the API created a Global Climate Science Communication Plan that involved educating the public about climate change science uncertainties.[232] The plaintiffs claim this plan was used to thwart the United States from signing the Kyoto Protocol.[233] The plan stressed that the government should implement long-term answers instead of short‑term responses to climate change.[234]

This API plan ties directly back to the NPC. In the 1995 NPC report, the committee discussed the same issues that were discussed in the API plan cited in the plaintiff’s complaint. The 1995 NPC report found that hyper-regulation of the oil and gas industry would be costly on the economy and give foreign oil companies an advantage.[235] These were the same concerns that prompted the API plan.[236] The 1995 NPC report found and recommended—and the government implemented—that the oil and gas industry needed to educate the public on sound science,[237] while the API plan provided a “sound scientific” platform.[238] The 1995 NPC report even stated that “no current resolution [on climate change] is possible due to the lack of scientific understanding of the potential for global climate change.”[239] This assessment was also shared in the API plan.[240]

Additionally, Fuller, as Chairman of the Board, was the head officer of the API at the time of the 1998 API plan, as well as a member of the NPC,[241] and as such, he was also a special government employee.[242] At the time of the 1995 NPC report, Fuller was chair of the NPC and a member of the Future Issues Committee, as listed in the Future Issues Report.[243] Thus, the API plan was issued under the leadership of a government employee relaying the findings of the NPC report in addition to carrying out the government’s agenda.[244]

Therefore, the actions of the API, Exxon, and Lee Raymond, as detailed in the complaint, were all performed by special government employees trying to relay the NPC’s findings and recommendations while also applying the government’s policies, which should satisfy the third element of the Federal Officer Removal Statute.

The NPC meets the Federal Officer Removal Statute. Because the NPC was under the control of the Energy Secretary, the acting‑under element was met. Given the NPC can arguably contend a qualified immunity defense, it meets the colorable defense element. The charged conduct related to the federal officer element was satisfied because the production and promotional statements in the complaint were carried out by special government employees relaying or carrying out the NPC’s findings and recommendations, which the government implemented. Thus, the NPC can satisfy all the elements of the Federal Officer Removal Statute.[245]

C. The Possible Reasons Why the Oil Companies Did Not Use These Arguments Do Not Hold Up

Although this Note’s Author did not consult with any oil companies or their representatives to ascertain why they did not utilize these arguments, a few theories exist as to why these arguments were not utilized. First, this is a novel approach that has not been tested in climate change litigation. However, the proper inquiry is whether the approach makes a compelling argument.[246] The law would never grow or expand if novel arguments never entered the courtroom. Furthermore, their tried and tested arguments have been ineffective, so a novel approach should be considered.

Second, some cooperative agreements could have indemnification clauses. But indemnification clauses are negotiated provisions; some agreements might have them, but some might not.[247] Also, product liability clauses, like indemnification clauses, are generally not in research and development cooperative agreements that benefit a whole industry where the contractor is sharing the technology in the public domain.[248] Moreover, indemnification does not automatically bar a contention of immunity.[249]

Last, some people may argue that these are voluntary affirmative statements that misled the public and have nothing to do with the NPTP or the NPC. But that view is very short-sighted and does not comport with the law. The promotional statements actually promoted technology-transfer programs or used promotion techniques outlined in the program—promotions which the oil companies were contractually obligated to perform for the government.[250] Additionally, courts do not consider whether actions are voluntary or outside the scope of employment when assessing federal officer removal.[251] Courts consider if the defendant was under the control of a federal officer, if the defendant can mount a plausible colorable defense, and if the defendant’s charged conduct has any association or relation to the federal officer.[252] Moreover, the NPC, acting through its members, is required to make its findings and recommendations known to the public.[253] Unfortunately, when NPC members tried to do that, they got sued for it.[254] Therefore, the reasons not to use the NPTP or the NPC arguments do not hold up.

IV. Conclusion

While previous oil companies could not prove the elements of federal officer removal, it does not mean that there is not a proper argument for federal officer removal. The courts have not considered the two novel approaches offered in this Note. This Note examined existing caselaw and explored the facts of the situation to form two compelling arguments for meeting the Federal Officer Removal Statute.

This Note has shown how the NPTP can create an argument that meets the three elements of Federal Officer Removal Statute. The oil companies were under the direct control of the federal government when the government forced them to produce oil and forced them to promote oil and gas, which would satisfy the acting‑under element. The colorable defense element was met because the oil companies can plausibly assert a government contractor immunity defense. The charges in the complaint are the very sort of actions that the government contract forced the oil companies to perform, satisfying the third element. Thus, this Note has proven that removal under the Federal Officer Removal Statute would be proper due to the NPTP.

Additionally, this Note illustrated how the NPC can establish a contention that meets the three elements of the Federal Officer Removal Statute. Under the control of the Energy Secretary, the NPC met the acting-under element. The members of the NPC can plausibly assert a qualified immunity defense, thereby meeting the colorable defense element. The charged conduct related to the federal officer because the production and promotional statements in the complaint were carried out by NPC members, who were relaying or carrying out the NPC’s findings and recommendations, satisfying the third element. Thus, the NPC meets all the elements of the Federal Officer Removal Statute.

While these new arguments have not been tried in court, these situations clearly fulfill the elements of the Federal Officer Removal Statute, especially when this Note refuted the reasons why oil companies might have overlooked these arguments. The hope is that even if these arguments fail, it will still spur ingenious arguments for the future because the next time a party wants to remove a case into federal court, federal officer removal might be the way to achieve that goal and potentially save the client from a multi-billion-dollar judgment.

Matthew Childress

  1. Marianne Schnall, My Exclusive Interview with Justice Sandra Day O’Connor, Huffpost, https://www.huffpost.com/entry/exclusive-interview-with_b_188581 [https://perma.cc/SY9G-4BPU] (Dec. 6, 2017) (2009 interview).

  2. A civil action or criminal prosecution that is commenced in a State court and that is against or directed to any of the following may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending: (1) The United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, for or relating to any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue.

    28 U.S.C. § 1442 (a)(1).

  3. Watson v. Philip Morris Cos., 551 U.S. 142, 147 (2007). Watson is the most recent Supreme Court case deciding whether a defendant should be granted federal officer removal. Id.

  4. Id. at 149.

  5. Id. at 148.

  6. Id.

  7. E.g., Mayor of Baltimore v. BP P.L.C. (Baltimore I), 388 F. Supp. 3d 538, 548, 574 (D. Md. 2019), aff’d, 952 F.3d 452 (4th Cir. 2020), vacated on other grounds, 141 S. Ct. 1532 (2021); Cnty. of San Mateo v. Chevron Corp., 294 F. Supp. 3d 934, 937 (N.D. Cal. 2018), aff’d in part, appeal dismissed in part, 960 F.3d 586 (9th Cir. 2020), vacated on other grounds, 141 S. Ct. 2666 (2021) (mem.); Bd. of Cnty. Comm’rs v. Suncor Energy (U.S.A.) Inc., 405 F. Supp. 3d 947, 981 (D. Colo. 2019), aff’d in part, appeal dismissed in part, 965 F.3d 792 (10th Cir. 2020), vacated on other grounds, 141 S. Ct. 2667 (2021) (mem.).

  8. Brief for Energy Policy Advocates as Amici Curiae Supporting Petitioners at 12, BP P.L.C. v. Mayor of Baltimore, 141 S. Ct. 1532 (2021) (No. 19-1189), 2020 WL 7049220.

  9. In federal court, oil companies have a greater chance of getting the lawsuit dismissed. Compare City of New York v. BP P.L.C., 325 F. Supp. 3d 466, 471–76 (S.D.N.Y. 2018), aff’d sub nom. City of New York v. Chevron Corp., 993 F.3d 81 (2d Cir. 2021) (granting motion to dismiss), with Mayor of Baltimore v. BP P.L.C. (Baltimore II), 952 F.3d 452, 471 (4th Cir. 2020), vacated on other grounds, 141 S. Ct. 1532 (2021) (ordering a remand back to state court for trial on the state law claims).

  10. E.g., Baltimore II, 952 F.3d at 463; Suncor Energy, 405 F. Supp. 3d at 977.

  11. Baltimore I, 388 F. Supp. 3d at 568; Baltimore II, 952 F.3d at 463.

  12. Baltimore I, 388 F. Supp. 3d at 548. The plaintiff’s complaint states that these promotional statements misled the public. Complaint at 108, Baltimore I, 388 F. Supp. 3d 538 (No. 18-CV-02357). The oil companies are being sued for their statements, although a national laboratory for the Department of Energy (the DOE) has articulated the same viewpoints in the same time period. Id. at 1; James Gover & Paul G. Huray, Rational Solution for Challenges of the New Millennium 92 (1998). An August 1998 government sponsored public report from a national laboratory stated:

    While it is widely accepted that global warming is a reality, it is not clear that these claims are real; if it is real, it is unclear just what is the magnitude of global warming, what the consequences will be, what it will cost to reduce global warming, and whether it is more cost effective to reduce global warming or learn to cope with it.

    Gover & Huray, supra, at 92. That report went on to declare that at this stage, researchers needed to focus on getting clearer answers of the uncertainties, rather than finding a solution through regulation, which was the same position as the oil companies and cited in plaintiff’s complaint as a main reason for the suit. Id. at 138; Complaint at 78, Baltimore I, 388 F. Supp. 3d 538 (No. 18-CV-02357).

  13. Baltimore II, 952 F.3d at 461–62.

  14. Id. at 463.

  15. Id.

  16. These arguments have not been tested in trial court. While this Note will dive into the specifics of Mayor of Baltimore v. BP P.L.C., these stronger arguments could possibly work in other oil company climate change litigation because the plaintiffs seem to use the same playbook, such as including the same promotional statements issued by American Petroleum Institute, Lee Raymond, and Exxon in the complaints. See Complaint at 93, 97, Bd. of Cnty. Comm’rs v. Suncor Energy (U.S.A.) Inc., 405 F. Supp. 3d 947, 977 (D. Colo. 2019), aff’d in part, appeal dismissed in part, 965 F.3d 792 (10th Cir. 2020), vacated on other grounds, 141 S. Ct. 2667 (2021) (mem.) (discussing American Petroleum Institute, Lee Raymond, and Exxon’s statements in the late 1990s); see also Complaint at 54, 57, Cnty. of San Mateo v. Chevron Corp., 294 F. Supp. 3d 934, 938 (N.D. Cal. 2018), aff’d in part, appeal dismissed in part, 960 F.3d 586 (9th Cir. 2020), vacated on other grounds, 141 S. Ct. 2666 (2021) (mem.) (also discussing the American Petroleum Institute, Lee Raymond, and Exxon’s statements in the late 1990s).

  17. This Note focuses on the rule of law and new arguments for federal officer removal using a case example. The merits of oil company pollution or environmental solutions are outside of this Note’s scope.

  18. The NPTP is under the DOE and is responsible for contracting with oil companies to provide the oil industry with improved technology in extracting oil and natural gas. Nat’l Energy Tech. Lab’y, Handbook on Best Management Practices and Mitigation Strategies for Coal Bed Methane in the Montana Portion of the Powder River Basin 5 (2002), http://bogc.dnrc.mt.gov/PDF/BMPHandbookFinal.pdf [https://perma.cc/EC8X-4XFP]; H.A. Tiedemann, Oil Atlas: National Petroleum Technology Program 4 (1998).

  19. See discussion infra Section III.A.

  20. The NPC is a federal advisory committee under the direction of the U.S. Secretary of Energy. National Petroleum Council Origin and Operations, NPC, https://www.npc.org/ [https://perma.cc/S9S9-AF9S] (last modified Mar. 18, 2020).

  21. See discussion infra Section III.B.

  22. See discussion infra Section III.C.

  23. Watson v. Philip Morris Cos., 551 U.S. 142, 151 (2007).

  24. 28 U.S.C. § 1442(a)(1).

  25. Baltimore II, 952 F.3d 452, 461–62 (4th Cir. 2020), vacated on other grounds, 141 S. Ct. 1532 (2021) (quoting Sawyer v. Foster Wheeler LLC, 860 F.3d 249, 254 (4th Cir. 2017)).

  26. Baltimore I, 388 F. Supp. 3d 538, 548 (D. Md. 2019), aff’d, 952 F.3d 452 (4th Cir. 2020), vacated on other grounds, 141 S. Ct. 1532 (2021). The companies include BP P.L.C.; BP America, Inc.; BP Products North America Inc.; Crown Central Petroleum Corp.; Crown Central LLC; Crown Central New Holdings LLC; Chevron Corp.; Chevron U.S.A. Inc.; Exxon Mobil Corp.; ExxonMobil Oil Corp.; Royal Dutch Shell PLC; Shell Oil Co.; Citgo Petroleum Corp.; ConocoPhillips; ConocoPhillips Co.; Louisiana Land & Exploration Co.; Phillips 66; Phillips 66 Co.; Marathon Oil Co.; Marathon Oil Corp.; Marathon Petroleum Corp.; Speedway LLC; Hess Corp.; CNX Resources Corp.; Consol Energy Inc.; and Consol Marine Terminals LLC. Complaint at i-iii, Baltimore I, 388 F. Supp. 3d 538 (No. 18‑CV‑02357).

  27. Baltimore I, 388 F. Supp. 3d at 548. The complaint lists public nuisance, private nuisance, strict liability for failure to warn, strict liability for design defect, negligent design defect, negligent failure to warn, trespass, and violations of the Maryland Consumer Protection Act. Id.

  28. Baltimore II, 952 F.3d at 457.

  29. Id. at 457, 462; Complaint, supra note 26, at 75–79, 81.

  30. Complaint, supra note 26, at 76–79, 84–86.

  31. Id. at 77, 81, 84.

  32. Id. at 76.

  33. Id.; Lee R. Raymond, Climate Change: Don’t Ignore the Facts 5 (1996), https://www.climatefiles.com/exxonmobil/global-warming-who-is-right-1996/ [https://perma.cc/3X3V-EEHT].

  34. Complaint, supra note 26, at 77.

  35. Id.

  36. Id. at 78.

  37. Id.

  38. Id. at 79.

  39. Id. at 81.

  40. The Kyoto Protocol is the international agreement that many countries entered into in December 1997 to limit and reduce greenhouse gas emissions in each country that signs the agreement. What Is the Kyoto Protocol?, U.N. Climate Change, https://unfccc.int/kyoto_protocol [https://perma.cc/7B9F-6EYS] (last visited Aug. 18, 2021). The Kyoto Protocol never took effect in the United States because the Senate rejected the notion of having the United States as a signatory with a 95–0 vote. Christie Aschwanden, A Lesson from Kyoto’s Failure: Don’t Let Congress Touch a Climate Deal, FiveThirtyEight (Dec. 4, 2015, 7:00 AM), https://fivethirtyeight.com/features/a-lesson-from-kyotos-failure-dont-let-congress-touch-a-climate-deal/ [https://perma.cc/JHJ7-UCRX]; Complaint, supra note 26, at 81.

  41. Complaint, supra note 26, at 81.

  42. Id. at 81–82.

  43. Baltimore I, 388 F. Supp. 3d at 549. Among the grounds for removal Chevron asserted were federal common law preemption, federal question, preemption by the Clean Air Act, foreign affairs doctrine, claims arising on federal enclaves, and federal officer removal. Id. Chevron and Exxon were among the many defendants in the case. Id. at 548; Complaint, supra note 26, at ii.

  44. Baltimore I, 388 F. Supp. 3d at 549.

  45. Id. at 568; Baltimore II, 952 F.3d 452, 463 (4th Cir. 2020), vacated on other grounds, 141 S. Ct. 1532 (2021).

  46. Baltimore I, 388 F. Supp. 3d at 566, 568. The Outer Continental Shelf is the ocean floor that is owned by the federal government. Id.; see also Baltimore II, 952 F.3d at 465 (explaining that the Secretary of the Interior is tasked with preparing a program for Outer Continental Shelf exploration and development).

  47. Baltimore I, 388 F. Supp. 3d at 564, 568. The Navy owned Elk Hills Naval Petroleum Reserve and contracted with Chevron’s predecessor to conduct operations for the Navy. Id.

  48. Id. at 569.

  49. Id. “Defendants claim only that the federal government purchased oil and gas from one of the twenty-six defendants, and the predecessor of another defendant, and broadly regulated defendants’ extraction on the OCS.” Id. at 568–69.

  50. Id. at 569. The actions in the complaint must relate in some way to a federal officer, but there does not have to be a causal nexus between a direction by a federal officer and the actions in the complaint. See Sawyer v. Foster Wheeler LLC, 860 F.3d 249, 258 (4th Cir. 2017). Sawyer involved a manufacturer contracting with the government to make boilers. Id. The government contract specified what warnings needed to be on the boilers for the government’s purpose. Id. at 257. An ex-employee’s family sued the boiler manufacturer in state court claiming inadequate warnings on the boilers because the boiler manufacturer did not warn its employees of asbestos. Id. at 252. The government contract did not prevent the boiler manufacturer from warning its employees about the asbestos in the boilers. Id. at 253. The Fourth Circuit held that even though the government contract did not state anything about asbestos warnings to the boiler manufacturer’s employees, the contract specified what warnings must be on the boilers for the government’s purposes, and that sufficiently related to any and all warnings about the boilers. Id. at 257. The Fourth Circuit noted that Congress amended the statute to include the words “or relating to” in 2011, which broadened the statute so that a simple connection or association between the federal officer and the actions complained of would satisfy this requirement. Id. at 258.

  51. Baltimore II, 952 F.3d at 457.

  52. Id. at 462 (quoting Watson v. Philip Morris Cos., 551 U.S. 142, 151–52, 157 (2007)) (holding the acting-under element was not satisfied when a cigarette manufacturer, although heavily regulated, merely complied with the law and the government was acting under a regulatory capacity and nothing more); see Davis v. South Carolina, 107 U.S. 597, 597–98, 600 (1883) (finding the acting-under element was satisfied when an individual assisted in helping a federal revenue officer arrest a suspect by surrounding his house, and when the suspect tried to flee the individual shot the suspect); see also Maryland v. Soper, 270 U.S. 9, 30 (1926) (declaring the acting-under element was met when a chauffeur drove around prohibition officers during a distillery raid, which resulted in multiple deaths).

  53. Baltimore II, 952 F.3d at 463–64. Purchasing “‘off-the-shelf’ products from a manufacturer 'does not show that the federal government [has] supervised [the] manufacture of [such products] or directed [that they be] produce[d] in a particular manner, so as to come within the meaning of ‘act[ed] under.’” Id. at 464 (quoting Washington v. Monsanto Co., 738 F. App’x 554, 555 (9th Cir. 2018)); see Sawyer, 860 F.3d at 258 (finding the acting-under element was achieved because the specific product contracted for was manufactured per the government’s specifications in the contract); see also Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387, 399–400 (5th Cir. 1998) (deciding the acting‑under element was satisfied when chemical companies contracted with the federal government to produce Agent Orange, a specified set of chemicals that the chemical company would not normally make).

  54. Baltimore II, 952 F.3d at 463.

  55. Id. at 465.

  56. See Watson, 551 U.S. at 145.

  57. Baltimore II, 952 F.3d at 466.

  58. Id.

  59. Id. at 467.

  60. Id. at 471.

  61. Id. at 470–71.

  62. Id. at 471.

  63. Id.

  64. Id.

  65. BP P.L.C. v. Mayor of Baltimore, 141 S. Ct. 1532, 1543 (2021).

  66. Id. at 1543. Justice Alito did not take part in the consideration or decision of the case. Id. This Note does not discuss the merits of the Supreme Court case but focuses on meeting the elements of federal officer removal.

  67. See Tiedemann, supra note 18, at 3–4.

  68. Id. at 3.

  69. Id. at 3–4.

  70. Id. at 4.

  71. Id. at 3.

  72. Id. at 3–4.

  73. Id. at 4–5.

  74. BDM-Petroleum Techs., Nat’l Petroleum Tech. Off., 5 Year Final Technical Progress Report xxxii, 1 (1998) [hereinafter 5 Year Final].

  75. Nat’l Rsch. Council, Maintaining Oil Production from Marginal Fields: A Review of the Department of Energy’s Reservoir Class Program 6–7 (1996) [hereinafter Maintaining Oil Production from Marginal Fields].

  76. Id. at 7.

  77. Id. at 2, 37.

  78. Id. at 40.

  79. Id. at 7. Federal facilities and government scientists developed the United States’ theories. 5 Year Final, supra note 74, at 213.

  80. Maintaining Oil Production from Marginal Fields, supra note 75, at 40.

  81. See id. at 40–43, 47.

  82. Id. at 30–32.

  83. Tiedemann, supra note 18, at 2, 5. These projects were divided into six categories: (1) advanced diagnostics and imaging systems; (2) advanced drilling, completion, and stimulation; (3) reservoir life extension and management; (4) emerging processing technology applications; (5) effective environmental protection; and (6) crosscutting program areas. Id. at 5.

  84. Tiedemann, supra note 18, at 34–35; see supra note 26.

  85. Tiedemann, supra note 18, at 30, 34–35, 41, 54, 60.

  86. Id. at 62; 5 Year Final, supra note 74, at 383.

  87. Maintaining Oil Production from Marginal Fields, supra note 75, at 35.

  88. Nat’l Energy Tech. Lab’y, DOE’s Enhanced Oil Recovery Program: An Archive of Important Results 9 (2008) https://pdhonline.com/courses/c794/DOE’s EOR Program (2008).pdf [https://perma.cc/5EEU-3XVN].

  89. Id.

  90. The NPTP is a technology–transfer program where the oil companies and the United States entered into a Cooperative Research and Development Agreement (CRADA) that had cost-sharing so the United States could try different experimental methods to achieve higher oil recovery. 5 Year Final, supra note 74, at 501. Courts have held that cooperative agreements with the federal government meet the requirements of the Federal Officer Removal Statute. See Benson v. Russell’s Cuthand Creek Ranch, Ltd., 183 F. Supp. 3d 795, 799–800, 804–07, 809 (E.D. Tex. 2016). In Benson, the court found federal officer removal was proper for claims of property damage when a company entered into a cooperative agreement with the government to build a levee system because the government directed the company to act, the company could plausibly invoke immunity, and the contracted actions related to the actions in the complaint. Id. at 809; see also Est. of Ware ex rel. Boyer v. Hosp. of Univ. of Pa., 73 F. Supp. 3d 519, 534–39 (E.D. Pa. 2014) (concluding that cooperative agreements with the government satisfy the Federal Officer Removal Statute).

  91. Baltimore II, 952 F.3d 452, 461–62 (4th Cir. 2020), vacated on other grounds, 141 S. Ct. 1532 (2021) (quoting Sawyer v. Foster Wheeler LLC, 860 F.3d 249, 254 (4th Cir. 2017)).

  92. See discussion infra Section III.A.3.a (showing how the NPTP meets the first element of federal officer removal).

  93. See discussion infra Section III.A.3.b (impleading the U.S. government, thereby forcing the court to grant federal jurisdiction, is beyond the scope of this Note but perhaps worthy of further discussion).

  94. See discussion infra Section III.A.3.c (showing how the NPTP meets the third element of federal officer removal).

  95. Baltimore II, 952 F.3d at 461–62 (quoting Sawyer, 860 F.3d at 254).

  96. 42 U.S.C. § 7112.

  97. Tiedemann, supra note 18, at 5.

  98. Maintaining Oil Production from Marginal Fields, supra note 75, at 7.

  99. Id. at 36, 40. In the West Hackberry Tertiary Project, the 1992 statement of work dictated all of the details for the enhanced oil production experiment; for example, “Amoco will acquire the necessary equipment/facilities to inject 4-4.5 MMCFD of air at pressures greater than 4000 psi” into the reservoir in order to get more oil. Travis Gillham et al., Annual Technical Progress Report—West Hackberry Tertiary Project app. A (1996–1997).

  100. Tiedemann, supra note 18, at 4, 62.

  101. Maintaining Oil Production from Marginal Fields, supra note 75, at 40.

  102. This relationship was beyond any regulatory capacity. See Watson v. Philip Morris Cos., 551 U.S. 142, 153 (2007).

  103. Id. at 150–51 (quoting Jefferson Cnty. v. Acker, 527 U.S. 423, 447 (1999) (Scalia, J., concurring in part and dissenting in part)). The defendant has the burden of proving by the preponderance of the evidence that the colorable defense element has been satisfied. Leite v. Crane Co., 749 F.3d 1117, 1122 (9th Cir. 2014). The colorable defense element seems to be met if a defense is alleged. See Jamison v. Wiley, 14 F.3d 222, 238–39 (4th Cir. 1994) (finding that a federal supervisor met this element when he alleged that the sexual assault with which he was charged was within the scope of his employment and that federal officer removal is proper even if the federal defense fails).

  104. Watson, 551 U.S. at 150–51. “[A] ‘clearly sustainable defense’ rather than a colorable defense would defeat the purpose of the removal statute . . . .” Acker, 527 U.S. at 432 (quoting Willingham v. Morgan, 395 U.S. 402, 407 (1969)).

  105. Sawyer v. Foster Wheeler LLC, 860 F.3d 249, 256 (4th Cir. 2017). The defendant only needs to show one possible defense for any of the multiple claims. Id. at 257.

  106. Id. at 255.

  107. Id. at 255–56. Courts apply the Boyle Test to determine if a defendant should have the privilege of governmental immunity for a design defect. Id.

  108. The government contract specifies a statement of work, which lays out very specific tasks the oil companies are contractually obligated to meet, such as “Amoco will acquire the necessary equipment/facilities to inject 4-4.5 MMCFD of air at pressures greater than 4000 psi” into the reservoir in order to get more oil, and Arco, a predecessor of Marathon, was tasked with drilling eleven producing wells, four injection wells, and three observation wells. Gillham et al., supra note 99, app. A; Steven Schamel et al., Reactivation of an Idle Lease to Increase Heavy Oil Recovery Through Application of Conventional Steam Drive Technology in a Low Dip Slope and Basin Reservoir in the Midway-Sunset Field, San Joaquin Basin, California 53 (1999); see Benson v. Russell’s Cuthand Creek Ranch, Ltd., 183 F. Supp. 3d 795, 804–06 (E.D. Tex. 2016) (holding that a cooperative agreement gives the defendant the plausible defense of government-contractor immunity).

  109. See 5 Year Final, supra note 74, at 494, 499.

  110. See R.L. Kane & D.W. South, What Are the Likely Roles of Fossil Fuels in the Next 15, 50, and 100 Years, with or Without Active Controls on Greenhouse Gas Emissions? 2–4 (1990). The DOE has been conducting studies and issuing reports on oil’s impact on climate change since the 1970s. R.L. Drake, Climate and Weather: Natural and Anthropogenic Perturbations 252 (1976); U.S. Energy Rsch. & Dev. Admin., Balanced Program Plan: Analysis for Biomedical & Environmental Research 3–4 (1975) [hereinafter Balanced Program Plan]. Ever since the Kennedy Administration, every president has received climate change reports and information disclosing the potential harms of hydrocarbons. Benjamin Hulac, Every President Since 1961 Was Warned About Climate Change, Governors’ Wind & Solar Energy Coal. (Nov. 6, 2018) https://www.governorswindenergycoalition.org/every-president-since-1961-was-warned-about-climate-change/ [https://perma.cc/9TW9-ZYVC].

  111. Sawyer v. Foster Wheeler LLC, 860 F.3d 249, 256 (4th Cir. 2017).

  112. Id.

  113. Id.

  114. See 23–34 94th St. Grocery Corp. v. New York City Bd. of Health, 685 F.3d 174, 182–83 (2d Cir. 2012) (declaring that an extra warning was not allowed because it would trample on the content of a promotion); cf. Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 527–28 (1992) (finding that when Congress specifies the content of a promotion or advertisement, failure to warn state claims will be preempted).

  115. Maintaining Oil Production from Marginal Fields, supra note 75, at 18, 25. “It is anticipated that presentations and/or papers will be completed at the beginning, middle, and end of the project.” Gillham et al., supra note 99, app. A. While the oil companies were obligated to promote the NPTP and the United States’ methods for extraction, the government did not specify how promotion should happen, leaving this overarching obligation of promotion. Schamel et al., supra note 108, at 58; see Sawyer, 860 F.3d at 256 (holding this element for the immunity defense was met when the government used its discretion in what warnings should be issued, despite the fact that the defendant could have given additional warnings); see also TVI Energy Corp. v. Blane, 806 F.2d 1057, 1060 (Fed. Cir. 1986) (finding governmental implied consent of action even though the action was not specified in the contract).

  116. 5 Year Final, supra note 74, at 50, 448; see Sawyer, 860 F.3d at 256 (deciding this element for the immunity defense was satisfied when the defendant showed proof that he lived up to the government’s direction).

  117. Drake, supra note 110, at 252; Balanced Program Plan, supra note 110, at 3–4; see Sawyer, 860 F.3d at 256 (finding this element for the immunity defense was achieved when the defendant showed proof that the government knew more information about the risks of the product than the contracted supplier); Hill v. Raytheon Aircraft Co., 470 F. Supp. 2d 1214, 1225 (D. Kan. 2006) (holding that this element for immunity defense was met when the United States heavily researched the risk). The plaintiffs assert that the defendants knew about climate change’s effects well before anyone else and did not say anything. Complaint, supra note 26, at 50–51. However, in 1998, a government-funded national laboratory stated that an endeavor to assess any danger from climate change required an international effort from around the globe to obtain the necessary input data. Gover & Huray, supra note 12, at 96, 138. Further, this international effort must involve multiple laboratories and agencies to provide vital access to the required number of supercomputers needed to properly formulate, calculate, and test climate change models. Id. at 96. The oil companies could argue that the magnitude of effort, which the government admittedly needed in 1998 to accurately assess any climate change danger, leaves considerable doubt that one oil company with a group of scientists could have undergone such a required methodical comprehensive feat and could have obtained the mainframe capability to correctly formulate, evaluate, and predict climate change effects in the 1970s and 1980s.

  118. Compare Sawyer, 860 F.3d at 256–57 (declaring a colorable contractor immunity defense against inadequate warning claims was satisfied when the government contract specified what warnings the boilers should have), with Maintaining Oil Production from Marginal Fields, supra note 75, at 6 (forcing oil companies to use specific government methods to extract more oil and gas and forcing oil companies to promote oil and gas), and Baltimore II, 952 F.3d 452, 467 (4th Cir. 2020), vacated on other grounds, 141 S. Ct. 1532 (2021) (noting the complaint is about promotion and sale of oil and gas).

  119. Baltimore I, 388 F. Supp. 3d 538, 567 (D. Md. 2019), aff’d, 952 F.3d 452 (4th Cir. 2020), vacated on other grounds, 141 S. Ct. 1532 (2021).

  120. Id. at 559.

  121. Maintaining Oil Production from Marginal Fields, supra note 75, at 5–7. Promotion was required during the many years that it would take to conduct the government’s field test experiments successfully and for a period of time after the conclusion of the government’s field test. Id. at 6–7. The government stated that the oil companies acting on their own had no incentive to share information and promote the newest technologies. 5 Year Final, supra note 74, at 442. The whole program of creating technology transfer programs, and the key to the government’s success, was to have oil companies promote oil and share information. Id.

  122. Maintaining Oil Production from Marginal Fields, supra note 75, at 6–7.

  123. Id. at 7.

  124. Id.

  125. NPTP is a technology-transfer program. 5 Year Final, supra note 74, at xxxii; see Raymond, supra note 33, at 3; Lee R. Raymond, Energy—Key to Growth and a Better Environment for Asia-Pacific Nations 4 (1997), http://www.documentcloud.org/documents/2840902-1997-Lee-Raymond-Speech-at-China-World-Petroleum.html [https://perma.cc/CF35-SSMW]. According to the DOE, too often environmental regulations are not based on a “sound scientific assessment of risk,” which is a strategic obstacle that must be overcome for the DOE’s vision to be realized. Off. of Fossil Energy, Oil and Gas R&D Programs, Strategic Plan 2-13 (1997). A strategy that the DOE listed to overcome this obstacle while promoting oil and gas research and development programs was to partner with stakeholders to promote sound scientific information. Id. at 2-23. Thus, these instances listed by the plaintiffs are oil companies promoting transferring technology programs specifically or promoting the exact strategies endorsed by their contractual partner, the NPTP.

  126. Raymond, supra note 33, at 3; Complaint, supra note 26, at 76.

  127. Raymond, supra note 125, at 7; Complaint, supra note 26, at 77–78.

  128. Sawyer v. Foster Wheeler LLC, 860 F.3d 249, 258 (4th Cir. 2017); see Papp v. Fore-Kast Sales Co., 842 F.3d 805, 813 (3d Cir. 2016) (finding the related-to element met in a claim of failure to warn when the government’s control of an aircraft supplier extended to the content of the warnings).

  129. Sawyer, 860 F.3d at 258.

  130. Baltimore II, 952 F.3d 452, 467–68 (4th Cir. 2020), vacated on other grounds, 141 S. Ct. 1532 (2021).

  131. Id. at 461–62 (quoting Sawyer, 860 F.3d at 254).

  132. While this argument successfully proves all the elements of federal officer removal, it has not been tested in the courts. In the current oil and gas climate change litigation, the litigants have unsuccessfully argued the same ineffective arguments that were tried in Baltimore I & II for the federal officer removal issue. See Cnty. of San Mateo v. Chevron Corp., 960 F.3d 586, 601 (9th Cir. 2020), vacated on other grounds, 141 S. Ct. 2666 (2021) (mem.) (finding the NEXCOM contract, Elk Hills Reserve, and the OCS leases do not qualify for federal officer removal); Bd. of Cnty. Comm’rs v. Suncor Energy (U.S.A.) Inc., 965 F.3d 792, 826 (10th Cir. 2020), vacated on other grounds, 141 S. Ct. 2667 (2021) (mem.) (holding that OCS leases do not meet the Federal Officer Removal Statute).

  133. Michael J. Mongan, Fixing FACA: The Case for Exempting Presidential Advisory Committees from Judicial Review Under the Federal Advisory Committee Act, 58 Stan. L. Rev. 895, 896, 906 (2005).

  134. On December 10, 2020, the Vaccines and Related Biological Products Advisory Committee (VRBPAC) held a meeting as to whether the FDA should approve the use of the Pfizer-BioNTech COVID-19 Vaccine in the United States through emergency approval authorization. U.S. Food & Drug Admin., Vaccines and Related Biological Products Advisory Committee December 10, 2020 Meeting Announcement (2020), https://www.fda.gov/advisory-committees/advisory-committee-calendar/vaccines-and-related-biological-products-advisory-committee-december-10-2020-meeting-announcement [https://perma.cc/472R-U5ZK].

  135. Meghan M. Stuessy, Cong. Rsch. Serv., R44253, Federal Advisory Committees: An Introduction and Overview 1–2 (2016).

  136. Id. at 4.

  137. 5 U.S.C. app. § 2.

  138. See Stuessy, supra note 135, at 17.

  139. Id. at 4.

  140. Id. at 17.

  141. Id. at 10.

  142. Id. at 9.

  143. Robert Longley, Laws Regulating Federal Lobbyists, ThoughtCo., https://www.thoughtco.com/laws-regulating-federal-lobbyists-4042342 [https://perma.cc/3RA3-PQJE] (Sept. 2, 2019).

  144. 5 U.S.C. app. § 5; U.S. Gen. Servs. Admin., Committee Detail, FACADatabase, https://www.facadatabase.gov/FACA/apex/FACAPublicCommittee?id=a10t0000001gzpgAAA [https://perma.cc/9V4K-3PSM] (last visited Aug. 18, 2021).

  145. National Petroleum Council Origin and Operations, supra note 20.

  146. Id. The Secretary of the Interior, at the request of President Truman, created the NPC so he could have a council for information relating to petroleum issues. The NPC moved departments with the DOE’s creation in 1977. Id.

  147. U.S. Gen. Servs. Admin., supra note 144; Stuessy, supra note 135, at 10.

  148. National Petroleum Council Origin and Operations, supra note 20.

  149. Nat’l Petroleum Council, Future Issues: A View of U.S. Oil & Natural Gas to 2020, A-4–11 (1995), https://www.npc.org/reports/reports_pdf/eo1995-Future_Issues-View_of_US_Oil_n_Natural_Gas_to_2020.pdf [https://perma.cc/9ZEQ-4372].

  150. Id. at B-2; Complaint, supra note 26, at 76–79, 84–86.

  151. Nat’l Petroleum Council, supra note 149, at A-6.

  152. Id. at A-1–2.

  153. Id. at A-1. The request was made because of rising environmental concerns. Id. In 1990, the Intergovernmental Panel on Climate Change (IPCC) Report was published. Intergovernmental Panel on Climate Change, Climate Change: The IPCC Scientific Assessment (J.T. Houghton et al. eds., 1990). The IPCC was created by the World Meteorological Organization and the United Nations Environment Program, encompassing several hundred scientists collaborating from twenty-five countries around the world who tried to document climate change. Id. at v; History, Intergovernmental Panel on Climate Change, https://archive.ipcc.ch/organization/organization_history.shtml [https://perma.cc/42W6-9L3U] (last visited Dec. 31, 2020). The report contained several observations and recommended certain actions such as curbing emissions. Intergovernmental Panel on Climate Change, Climate Change: The IPCC 1990 and 1992 Assessments 160–62 (1992), https://www.ipcc.ch/site/assets/uploads/2018/05/ipcc_90_92_assessments_far_full_report.pdf [https://perma.cc/P7TW-JN2K]. However, renewable technology was not a viable option, and any curbing of emissions would decrease the economy. Off. of Fossil Energy, supra note 125, at 9.

  154. National Petroleum Council Origin and Operations, supra note 20.

  155. Nat’l Petroleum Council, supra note 149, at A-1–2.

  156. Id. at 35.

  157. Id. at 1.

  158. Id.

  159. Id. at B-1–3. Another member was the President of the National Geographic Society, an organization that promotes environmental preservation. Corporate Responsibility Policy, Nat’l Geographic Soc’y (Nov. 16, 2015), https://www.nationalgeographic.org/sustainability-policy/ [https://perma.cc/2V52-SUZZ]. Thus, this small committee, which was co-chaired by a federal high-ranking officer, had oil and gas representatives but also had environmentalists, maintaining the federal advisory committee requirement of having independently balanced thinking. Nat’l Petroleum Council, supra note 149, at B-1.

  160. Nat’l Petroleum Council, supra note 149, at B-1.

  161. Id. at 35.

  162. Id. at 3.

  163. Id. at 23–24.

  164. Id. at 24.

  165. Id. at 59. Throughout the history of the NPC, the government has implemented around 30% of all its recommended actions. U.S. Gen. Servs. Admin., supra note 144.

  166. Nat’l Petroleum Council, supra note 149, at 36.

  167. Id.

  168. Id. at 36–37.

  169. Id. at 5, 32.

  170. Id.

  171. Id. at 36–37.

  172. Id. at 5, 65.

  173. Off. of Fossil Energy, supra note 125, at 2-1; Nat’l Petroleum Council, A Supplement to the NPC’s Report: Future Issues-A View of U.S. Oil & Natural Gas to 2020, A-1 (1996), https://www.npc.org/reports/reports_pdf/eo1996-Issues_for_Interagency_Consideration-Supplement_to_Future_Issues_1996.pdf [https://perma.cc/92SN-CDGV].

  174. Federal Advisory Committee Management, U.S. Dep’t of the Interior, https://www.doi.gov/execsec/faca [https://perma.cc/XU2T-EDH7] (last visited Aug. 18, 2021).

  175. 5 U.S.C. app. § 10.

  176. Federal Advisory Committee Management, supra note 174.

  177. 5 U.S.C. app. § 10.

  178. Federal Advisory Committee Management, supra note 174.

  179. This would be similar to the hypothetical of independent counsel Mueller investigating President Trump and making recommendations on those findings. Nicole Karlis, Robert Mueller’s Report Is In: Reportedly Recommends No Further Indictments (Mar. 22, 2019, 5:58 PM), https://www.salon.com/2019/03/22/robert-muellers-report-is-in-how-long-till-we-see-it/ [https://perma.cc/RM3M-P7WV]. Then, a year later he stated that there was no credible evidence to indict President Trump and was subsequently sued for making those statements. The only difference with the oil company situation is that the NPC was required by law to put the findings in the public forum, unlike an independent counsel investigation. See id.; Federal Advisory Committee Management, supra note 174.

  180. Baltimore II, 952 F.3d 452, 461–62 (4th Cir. 2020), vacated on other grounds, 141 S. Ct. 1532 (2021) (quoting Sawyer v. Foster Wheeler LLC, 860 F.3d 249, 254 (4th Cir. 2017)).

  181. Id.

  182. Nat’l Petroleum Council, supra note 149, at A-3, A-6, A-9.

  183. Id. at A-3, A-6, A-9, B-1–2.

  184. Id. at 35.

  185. U.S. Gen. Servs. Admin., supra note 144. The federal government defines Special Government Employee as “[a]n officer or employee of the executive or legislative branch who is retained, designated, appointed, or employed” to serve on a “full-time or intermittent basis” to perform duties for the federal government. This employee might not be compensated for service. GSA Federal Advisory Committee Act (FACA) Database Public Access Help Manual 16 (2018), https://gsa-geo.my.salesforce.com/sfc/p/#t0000000Gyj0/a/t00000005cgc/aeGp.HopBVV15JbBQ0N6jeMdjT8u8s27AfrOYs5Fz58 [https://perma.cc/6TGT-28HK].

  186. U.S. Gen. Servs. Admin., supra note 144.

  187. Baltimore II, 952 F.3d 452, 463 (4th Cir. 2020), vacated on other grounds, 141 S. Ct. 1532 (2021). The special government employee status goes beyond any standard regulatory compliance relationship because they are doing more than just following the law. See Watson v. Philip Morris Cos., 551 U.S. 142, 157 (2007).

  188. Baltimore II, 952 F.3d at 461–62. Courts appear to treat a federal defense as fact if it can be connected to the charged conduct. Courts only reach the merits of the defense in federal court. Even if the federal court rejects the defense, the case remains in federal court. See Jamison v. Wiley, 14 F.3d 222, 238–39 (4th Cir. 1994) (finding that a federal supervisor met this element when he alleged that the sexual assault he was charged with was within the scope of his duties, and when the federal court decided it was not within the scope, the Fourth Circuit ruled that the case should remain in federal court).

  189. Jones v. Pineda, 22 F.3d 391, 396 (1st Cir. 1994) (“By raising a colorable federal defense, a defendant-official converts an otherwise nonremovable state law action into one that falls within the federal court’s jurisdiction.”).

  190. Pearson v. Callahan, 555 U.S. 223, 231 (2009).

  191. Id. at 227, 231 (deciding police officers had qualified immunity when they performed a warrantless home search and arrested someone for selling drugs to a confidential informant whom the individual had given permission to enter the premises).

  192. Id. at 236.

  193. Id.

  194. Id.

  195. The following types of information prepared by the advisory committee shall be accessible to the public: “records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents.” 5 U.S.C. app. § 10.

  196. Cummock v. Gore, 180 F.3d 282, 292 (D.C. Cir. 1999); see Off. of Fossil Energy, supra note 125, at 1-72, 1-74 (proving the DOE’s endorsement and promotion of the NPC’s recommendations that regulations need to be based on sound science and take into account economic impacts in promoting oil and gas).

  197. E.g., Nat. Res. Def. Council v. Pena, 147 F.3d 1012, 1025 (D.C. Cir. 1998).

  198. Jud. Watch, Inc. v. Nat’l Energy Pol’y Dev. Grp., 219 F. Supp. 2d 20, 44 (D.D.C. 2002).

  199. See CareToLive v. von Eschenbach, 525 F. Supp. 2d 952, 960–61, 964 (S.D. Ohio 2007) (holding qualified immunity existed for a federal advisory committee member).

  200. Baltimore II, 952 F.3d 452, 457 (4th Cir. 2020), vacated on other grounds, 141 S. Ct. 1532 (2021).

  201. Id. at 461–62.

  202. Id. at 457.

  203. Nat’l Petroleum Council, supra note 149, at A-1.

  204. Id.; see Jefferson Cnty. v. Acker, 527 U.S. 423, 432 (1999) (finding that a judge’s refusal to pay county occupational taxes sufficiently connected to their duties as a judge for federal officer removal because an “airtight case on the merits” would defeat the purpose of removal and the issue whether a federal official stepped out of bounds is for a federal court to decide); see also In re Commonwealth’s Mot. to Appoint Couns. Against or Directed to Def. Ass’n, 790 F.3d 457, 471–72 (3d Cir. 2015) (noting that a mere association to the federal office is sufficient to meet the related to element).

  205. Raymond, supra note 33, at 2–3.

  206. Id. at 5.

  207. Nat’l Petroleum Council, supra note 149, at 30.

  208. Off. of Fossil Energy, supra note 125, at 1-74.

  209. Id.; Nat’l Petroleum Council, supra note 149, at 13; Raymond, supra note 33, at 3; Off. of Fossil Energy, supra note 125, at 1-74.

  210. Raymond, supra note 33, at 5.

  211. Id. at 2–3.

  212. Complaint, supra note 26, at 77.

  213. Id. at 77–78; Am. Petroleum Inst., Reinventing Energy: Making the Right Choices (1996), http://www.climatefiles.com/trade-group/american-petroleum-institute/1996-reinventing-energy [https://perma.cc/8Q3T-4756] [hereinafter Reinventing Energy].

  214. Reinventing Energy, supra note 213, at i.

  215. Id.; Nat’l Petroleum Council, supra note 149.

  216. Reinventing Energy, supra note 213, at 96; Nat’l Petroleum Council, supra note 149, at 30.

  217. Reinventing Energy, supra note 213, at 95–97; Nat’l Petroleum Council, supra note 149, at 29–30.

  218. Reinventing Energy, supra note 213, at 67–68.

  219. Nat’l Petroleum Council, supra note 149, at 65.

  220. Id. at A-9; News Release, Am. Petroleum Inst., New Chairman (Nov. 13, 1995), http://web.archive.org/web/19970611235750/http://www.api.org:80/news/raymond.pdf [https://perma.cc/H42A-JF64].

  221. See supra note 186 and accompanying text.

  222. Complaint, supra note 26, at 71–74, 76–79, 81–86.

  223. Id. at 78.

  224. Id.

  225. Nat’l Petroleum Council, supra note 149, at 30.

  226. Id. at 12.

  227. Off. of Fossil Energy, supra note 125, at 1.

  228. Complaint, supra note 26, at 79.

  229. Id. at 80.

  230. When Facts Don’t Square with the Theory, Throw Out the Facts, N.Y. Times, Aug. 14, 1997, at A31, https://www.documentcloud.org/documents/705550-mob-nyt-1997-aug-14-whenfactsdontsquare.html? [https://perma.cc/QJ97-4GV4].

  231. Nat’l Petroleum Council, supra note 149, at 36–37.

  232. Complaint, supra note 26, at 81.

  233. Id.

  234. Id. at 81–82.

  235. Nat’l Petroleum Council, supra note 149, at 26–28.

  236. Am. Petroleum Inst., Global Climate Science Communications Action Plan (Apr. 3, 1998) (draft document), https://assets.documentcloud.org/documents/784572/api-global-climate-science-communications-plan.pdf [https://perma.cc/HB3F-879M].

  237. Nat’l Petroleum Council, supra note 149, at 65.

  238. Am. Petroleum Inst., supra note 236, at 6.

  239. Nat’l Petroleum Council, supra note 149, at 30.

  240. Am. Petroleum Inst., supra note 236, at 1–2.

  241. Martha M. Hamilton, For Red Cavaney, It’s Time for an Oil Change, Wash. Post (Dec. 1, 1997), https://www.washingtonpost.com/archive/business/1997/12/01/for-red-cavaney-its-time-for-an-oil-change/11d37b61-6b78-48d3-b2d2-ef9d0ebc5032/ [https://perma.cc/2S95-B8A7]; Nat’l Petroleum Council, supra note 149, at A-4–6, B-1.

  242. U.S. Gen. Servs. Admin., supra note 144; Fla. Sec’y of State, Nonprofit Corporation Annual Report (1998), http://search.sunbiz.org/Inquiry/CorporationSearch/ConvertTiffToPDF?storagePath=COR\1998\0413\9144817B.TIF&documentNumber=833575 [https://perma.cc/QAT5-D9TF].

  243. Nat’l Petroleum Council, supra note 149, at B-1.

  244. Id. at A-1.

  245. While this argument has not been tested for this situation, a federal advisory committee argument was made and failed to meet the elements of federal officer removal involving prescription drugs. Opening Brief of Defendants-Appellants at 49, Geisse v. Bayer Healthcare Pharm. Inc., No. 17-cv-07026, 2019 WL 1239854 (N.D. Cal. Mar. 18, 2019) (No. 19-15778). However, this case differs because Bayer was responding to a survey that the medical advisory committee issued, and Bayer’s CEO was neither a committee member on the federal advisory committee nor a designated special government employee. Geisse, 2019 WL 1239854, at *4–5.

  246. Ruth Colker, Justice Sandra Day O’Connor’s Friends, 68 Ohio St. L.J. 517, 524 (2007).

  247. U.S. Dep’t of Energy, DOE Cooperative Research and Development Agreements Manual 1, 22 app. B (2001), https://www.energy.gov/sites/prod/files/gcprod/documents/m4831-1.pdf [https://perma.cc/XYB6-LRTN].

  248. Id. at 24 app. B.

  249. Int’l Paper Co. v. A & A Brochu, 899 F. Supp. 715, 718 (D. Me. 1995).

  250. See supra note 125 and accompanying text.

  251. See Willingham v. Morgan, 395 U.S. 402, 409 (1969) (noting that a removal statute is for the purpose of giving the federal courts the decision of whether someone was on a frolic); Baker v. Atl. Richfield Co., 962 F.3d 937, 942 (7th Cir. 2020) (declaring that a voluntary relationship does not void any argument for removal status); see also Isaacson v. Dow Chem. Co., 517 F.3d 129, 138 (2d Cir. 2008) (holding that it is not enough if the government did not contemplate the charged conduct: it was sufficient that the federal officer was connected to the charged conduct).

  252. Sawyer v. Foster Wheeler LLC, 860 F.3d 249, 254 (4th Cir. 2017).

  253. Federal Advisory Committee Management, supra note 174.

  254. Baltimore I, 388 F. Supp. 3d 538, 548 (D. Md. 2019), aff’d, 952 F.3d 452 (4th Cir. 2020), vacated on other grounds, 141 S. Ct. 1532 (2021).