United States v. Transocean Deepwater Drilling, Inc.

Case: 13-20243 Document: 00512774082 Page: 1 Date Filed: 09/18/2014

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

FILED
No. 13-20243 September 18, 2014
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk

Plaintiff-Appellee
v.

TRANSOCEAN DEEPWATER DRILLING, INCORPORATED,

Defendant-Appellant

Appeal from the United States District Court
for the Southern District of Texas

Before REAVLEY, JONES, and GRAVES, Circuit Judges.
REAVLEY, Circuit Judge:
Transocean Deepwater Drilling, Inc. appeals from the district court’s
order enforcing administrative subpoenas issued by the Chemical Safety and
Hazard Investigation Board in connection with an investigation following the
disaster on the Deepwater Horizon drilling unit in the Gulf of Mexico.
Transocean contends that the subpoenas should have been quashed because
the Board lacks authority to investigate the incident. We AFFIRM the district
court’s judgment.
I.
On April 20, 2010, a blowout, explosion, and fire occurred during drilling
operations at the Macondo lease site in the Gulf of Mexico. The Macondo well
was being drilled by the Deepwater Horizon, a mobile offshore drilling unit
 Case: 13-20243 Document: 00512774082 Page: 2 Date Filed: 09/18/2014

No. 13-20243
(“MODU”) tasked to the job by Transocean. As a result of the incident, eleven
people were tragically killed, a large volume of flammable gas, oil, and other
hazardous substances were released into the water and ambient air, and
substantial property damage occurred.
Numerous governmental agencies responded to the disaster, including
the Chemical Safety and Hazard Investigation Board (“CSB” or “the Board”).
Established by the Clean Air Act Amendments of 1990 and modeled after the
National Transportation Safety Board (“NTSB”), the CSB serves a public
safety mission by investigating accidental releases of hazardous substances
into the ambient air and by reporting to the public its findings and
recommendations for preventing and minimizing the risk of industrial
chemical accidents.
As part of its investigation into the incident at the Macondo well, the
CSB issued five administrative subpoenas to Transocean. The subpoenas
sought answers to interrogatories and the production of relevant records,
including documents generated by Transocean’s own internal investigation.
Transocean took the position that the CSB lacked authority to investigate the
incident, and it therefore failed to comply fully with the CSB’s subpoenas.
The United States filed a petition on behalf of the CSB to enforce the
administrative subpoenas, while Transocean moved to quash them and to
dismiss the petition. Transocean argued that the CSB was not authorized to
conduct an investigation because, inter alia, the incident was a marine oil spill
over which the CSB lacks jurisdiction, and the incident did not occur on a
stationary source.
The district court denied Transocean’s motion and ordered enforcement
of the subpoenas. The district court held that the CSB was investigating only
the release of airborne gases from the blowout and explosion and was not
investigating the subsequent oil spill from the well. The court further
2
 Case: 13-20243 Document: 00512774082 Page: 3 Date Filed: 09/18/2014

No. 13-20243
determined that the CSB would lack authority to investigate an incident
involving a marine oil spill only if the NTSB was authorized to investigate.
The court held that the NTSB was not authorized to investigate this incident,
however, because the incident was located fifty miles off the coast of the United
States on the Outer Continental Shelf and did not involve a “vessel of the
United States,” and because the incident was not transportation related. The
court also concluded that the Deepwater Horizon and its subsea riser comprised
a drilling installation that satisfied the statutory requirement of a “stationary
source” from which the accidental release of gases the CSB was authorized to
investigate. The district court therefore held that the CSB had authority to
investigate the incident and to issue the administrative subpoenas.
Transocean now appeals.
II.
Administrative subpoenas issued in aid of an investigation will generally
be enforced judicially if “(1) the subpoena is within the statutory authority of
the agency; (2) the information sought is reasonably relevant to the inquiry;
and (3) the demand is not unreasonably broad or burdensome.” See Burlington
N. R. Co. v. Office of Inspector Gen., R.R. Ret. Bd., 983 F.2d 631, 638 (5th Cir.
1993); see also United States v. Powell, 379 U.S. 48, 57-58, 85 S. Ct. 248, 255
(1964) (holding that enforcement of administrative subpoenas requires a
showing “that the investigation will be conducted pursuant to a legitimate
purpose, that the inquiry may be relevant to the purpose, that the information
sought is not already within the [agency’s] possession, and that the
administrative steps required by [statute] have been followed”). The
Government bears the initial burden to show that these criteria have been met,
although the burden to make a prima facie case is “minimal.” United States v.
Tex. Heart Inst., 755 F.2d 469, 474 (5th Cir. 1985), overruled on other grounds
by United States v. Barrett, 837 F.2d 1341 (5th Cir. 1988) (en banc). Once the
3
 Case: 13-20243 Document: 00512774082 Page: 4 Date Filed: 09/18/2014

No. 13-20243
Government has made a prima facie case, the burden of going forward shifts
to the party opposing the subpoenas. Id.
In this case, Transocean focuses its arguments on appeal on the
authority of the CSB to issue the subpoenas. We review the district court’s
factual findings underlying its decision on this issue for clear error and its
conclusions of law de novo. Burlington, 983 F.2d at 638, 641.
III.
Transocean contends that the CSB had no authority to issue the
administrative subpoenas because the CSB lacked jurisdiction to investigate
the incident at the Macondo well. An administrative agency’s authority is
necessarily derived from the statute it administers and may not be exercised
in a manner that is inconsistent with the administrative structure that
Congress has enacted. See FDA v. Brown & Williamson Tobacco Corp., 529
U.S. 120, 125, 120 S. Ct. 1291, 1297 (2000); see also Texas v. United States, 497
F.3d 491, 500-01 (5th Cir. 2007). Here, as noted above, the CSB is an
independent federal investigative agency established by the Clean Air Act
Amendments of 1990. See Pub. L. No. 101-549, Title III, sec. 301, 104 Stat.
2399 (Nov. 15, 1990). The Board is authorized to “investigate (or cause to be
investigated), determine and report to the public in writing the facts,
conditions, and circumstances and the cause or probable cause of any
accidental release resulting in a fatality, serious injury or substantial property
damages.” 42 U.S.C. § 7412(r)(6)(C)(i). An “accidental release” is “an
unanticipated emission of a regulated substance or other extremely hazardous
substance into the ambient air from a stationary source.” § 7412(r)(2)(A). A
“stationary source” is defined as “any buildings, structures, equipment,
installations or substance emitting stationary activities (i) which belong to the
same industrial group, (ii) which are located on one or more contiguous
properties, (iii) which are under the control of the same person (or persons
4
 Case: 13-20243 Document: 00512774082 Page: 5 Date Filed: 09/18/2014

No. 13-20243
under common control), and (iv) from which an accidental release may occur.”
§ 7412(r)(2)(C).
A.
Transocean argues first that the CSB lacked jurisdiction to investigate
the incident at the Macondo well because the Deepwater Horizon is not a
“stationary source” as that term is contemplated by the statute. Transocean
reasons that because the word “stationary” in the term “stationary source” is
not defined, the word must be construed as commonly understood, which
Transocean contends means a fixed and unchanging object rather than
something that is moveable. Transocean argues that the Deepwater Horizon
was not only moveable but also was a “vessel in navigation.” It reasons,
therefore, that the drilling unit could not be a stationary source. We disagree
with Transocean’s reasoning.
Transocean is correct that similar mobile offshore drilling units and
other structures, and even the Deepwater Horizon itself, have been held to be
vessels under maritime law. See, e.g., Demette v. Falcon Drilling Co., 280 F.3d
492, 498-99 (5th Cir. 2002), overruled in part on other grounds by Grand Isle
Shipyard, Inc. v. Seacor Marine, LLC, 589 F.3d 778 (5th Cir. 2009) (en banc).
For example, in Demette, we noted that “special-purpose moveable drilling rigs,
including jack-up rigs, are vessels within the meaning of admiralty law.”
Demette, 280 F.3d at 498 n.18. It is also well-established that “special-purpose
structures” may remain vessels under the Jones Act while engaged in drilling
operations. See, e.g., Offshore Co. v. Robison, 266 F.2d 769, 776 (5th Cir. 1959).
And under Supreme Court precedent a “watercraft practically capable of
maritime transportation” is considered to be a “vessel” under the Longshore
and Harbor Workers’ Compensation Act regardless of its purpose or state of
transit at a particular moment. Stewart v. Dutra Constr. Co., 543 U.S. 481,
497, 125 S. Ct. 1118, 1129 (2005). Indeed, the Supreme Court held that a
5
 Case: 13-20243 Document: 00512774082 Page: 6 Date Filed: 09/18/2014

No. 13-20243
watercraft does not “pass in and out of Jones Act coverage depending on
whether it was moving at the time of the accident.” Id. at 495-96, 125 S. Ct. at
1128. Based on the foregoing authority, the district court in the multi-district
litigation spawned from the Macondo well incident held that the Deepwater
Horizon was a vessel under general maritime law. See In re Oil Spill by the
Oil Rig “DEEPWATER HORIZON” in the Gulf of Mexico, on April 20, 2010,
808 F. Supp. 2d 943, 950 (E.D. La. 2011); see also In re Deepwater Horizon, 745
F.3d 157, 164 (5th Cir. 2014) (noting the vessel status of the drilling unit).
Nevertheless, in this case we are not dealing with the application of, or
definitions under, the Jones Act and general maritime law. The fact that the
Deepwater Horizon may be a vessel for purposes of maritime law does not
answer the question whether it meets the specific statutory definition of a
“stationary source” under the Clean Air Act.
The phrase “stationary source” is expressly defined by the Clean Air Act.
When Congress provides a specific definition of a term, we must accept that
meaning and limit our analysis to the prescribed definition. See Stenberg v.
Carhart, 530 U.S. 914, 942, 120 S. Ct. 2597, 2615 (2000) (“When a statute
includes an explicit definition, we must follow that definition, even if it varies
from that term’s ordinary meaning.”); cf. Hamilton v. United Healthcare of La.,
Inc., 310 F.3d 385, 391 (5th Cir. 2002) (“A fundamental canon of statutory
construction instructs that in the absence of a statutory definition, we give
terms their ordinary meaning.” (emphasis added)); see also United States v.
Crittenden, 372 F.3d 706, 711 (5th Cir. 2004) (Dennis, J., concurring in part
and dissenting in part) (“[W]hen context dictates that a term has a particular
definition, that definition will apply instead of the plain meaning of the term.”).
We therefore must apply the definition of “stationary source” provided within
§ 7412(r)(2)(C).

6
 Case: 13-20243 Document: 00512774082 Page: 7 Date Filed: 09/18/2014

No. 13-20243
We find nothing within the definition of “stationary source” found in
§ 7412(r)(2)(C) that precludes a vessel from satisfying the statutory
requirements for a stationary source. Indeed, counsel for Transocean conceded
during oral argument that a vessel could be stationary, but he argued that the
drilling unit here was in constant motion over the well because of the unit’s
stabilizing thrusters. The amicus makes the same argument, contending that
under Coast Guard regulations the Deepwater Horizon was a vessel considered
to be underway.
Of course, the whole point of the stabilizing thrusters is to keep the
drilling unit largely stationary over the well so that it can perform its drilling
operation, a “stationary activity.” See § 7412r(2)(c). Regardless whether the
unit is considered to be underway, the Deepwater Horizon was “dynamically-
positioned” and “employed a satellite global positioning device and complex
thruster technology to stabilize itself.” In re Oil Spill by the Oil Rig
“DEEPWATER HORIZON” in the Gulf of Mexico, on April 20, 2010, 808 F.
Supp. 2d 943, 950 (E.D. La. 2011) (emphasis added). Its eight directional
thrusters were used to keep the rig in place over the wellhead during drilling.
National Commission on the BP Deepwater Horizon Oil Spill and Offshore
Drilling, Macondo: The Gulf Oil Disaster, Chief Counsel’s Report 29 (2011),
available at http://www.eoearth.org/files/164401_164500/164423/full.pdf
(hereinafter “Chief Counsel’s Report”).
It is true that the Deepwater Horizon was capable of propulsion.
However, this propulsion ability is an advancement in drilling technology that
has allowed these units to arrive and remain at different drilling locations,
making it easier for the oil and gas industry to drill for oil in deeper water. See
Chief Counsel’s report at 12. This is because “[i]n water depths greater than
about 1,000 feet, it is increasingly impractical to conduct production operations
from structures that are supported by the ocean floor, and floating facilities
7
 Case: 13-20243 Document: 00512774082 Page: 8 Date Filed: 09/18/2014

No. 13-20243
and subsea production systems dominate.” Id. at 7. This economic advantage
to the oil and gas industry does not mean, however, that the activity of the
mobile drilling units cannot come under the CSB’s jurisdiction as a stationary
source if other statutory conditions are met, even though the drilling unit is
also a vessel. “Once moved onto location, a [dynamically positioned] rig holds
itself in place above a drilling location using satellite positioning technology
and directional thrusters.” Id. at 12-13; see also id. at 26 (“Dynamically
positioned MODUs utilize dynamic satellite positioning technology connected
to powerful directional thrusters to maintain themselves in place over a subsea
wellhead.”). In this case, the Deepwater Horizon was deployed to the Macondo
well site in February 2010 and had remained in place at the site for
approximately two months. 1 See id.

1 The amicus urges that the Deepwater Horizon could not be a stationary source
because under Coast Guard regulations it is considered to be a vessel “underway” and not
“on location.” It posits that if a vessel is not “on location” it cannot also be a “stationary
source.” In support of this argument the amicus relies on a Coast Guard investigation report
of the Deepwater Horizon incident that discussed the status of the drilling unit. See U.S.
Coast Guard, Report of Investigation into the Circumstances Surrounding the Explosion, Fire,
Sinking, and Loss of Eleven Crew Members Aboard the MOBILE OFFSHORE DRILLING
UNIT DEEPWATER HORIZON in the Gulf of Mexico April 20–22, 2010, at I-10, available at
https://www.hsdl.org/?view&did=6700 (hereinafter “Coast Guard Report”). The terms “on
location” and “underway” have specific statutory definitions, however, that do not affect
whether the vessel may be a “stationary source” for purposes of the Clean Air Act. For
example, “on location” means merely that the drilling unit is anchored. See 46 C.F.R. § 10.107
(“On location means that a mobile offshore drilling unit is bottom bearing or moored with
anchors placed in the drilling configuration.”). Because the Deepwater Horizon was a
dynamically positioned, anchor-less MODU, it could not satisfy the regulatory definition of
“on location” and was therefore considered to be “underway.” See Coast Guard Report at I-5.
The Coast Guard Report notes that whether a vessel is “on location” or “underway”
determines the navigation rules that the vessel must follow, such as for minimum manning
and operational requirements. See id. at I-5. That status alone does not indicate whether
the vessel is a “stationary source” because a vessel may be “underway” but not “making way.”
Id. at I-5-6. The Coast Guard Report specifically recognizes that even though a vessel does
not meet the statutory definition for being “on location,” it may nevertheless be “essentially
maintaining a fixed position” through the use of its dynamic positioning system. Id. at I-6.
That was the case with the Deepwater Horizon.
8
 Case: 13-20243 Document: 00512774082 Page: 9 Date Filed: 09/18/2014

No. 13-20243
The Government urges, and the district court essentially found, that the
Macondo drilling installation as a whole was a stationary source. We agree.
At the time of the blowout and explosion the drilling operations occurred at a
fixed, specific point in the Gulf of Mexico—the Macondo lease site—and the
Deepwater Horizon was physically connected (though not anchored) at that site
and maintained a fixed position. The drilling installation as a whole included
the drilling unit, along with its casing, wellhead, riser, and related apparatus.
The blowout preventer alone was more than five stories tall and weighed more
than 300 tons sitting atop the wellhead on the ocean floor. Chief Counsel’s
Report at 29-30. The Deepwater Horizon was then connected to the wellhead
by 5000 feet of drill pipe. See In re Oil Spill by the Oil Rig “DEEPWATER
HORIZON,” 808 F. Supp. 2d at 950. As noted above, a stationary source
includes “any buildings, structures, equipment, installations or substance
emitting stationary activities.” § 7412(r)(2)(C) (emphasis added). The drilling
installation here satisfied this definition. 2
Transocean raises a question in its reply brief about the terms of the
stationary source definition, namely that the source “belong to the same
industrial group,” be “located on one or more contiguous properties,” be “under
the control of the same person,” and be something “from which an accidental
release may occur.” § 7412(r)(2)(C). Transocean has never, in the district
court, or its initial brief, raised this argument. Because we do not consider
arguments raised for the first time in a reply brief, we decline to address this
issue. See DePree v. Saunders, 588 F.3d 282, 290 (5th Cir. 2009).

2 Again, that the drilling unit itself was capable of propulsion and could and did use
its thrusters to counter-act wave activity in order to remain in place over the well does not
negate the fact that the drilling operation of the Deepwater Horizon was, at the very least, a
“stationary activity.” See § 7412(r)(2)(C).
9
 Case: 13-20243 Document: 00512774082 Page: 10 Date Filed: 09/18/2014

No. 13-20243
B.
Transocean next argues that the CSB lacked jurisdiction to investigate
the Macondo well incident because Congress specifically denied the CSB
authority over this type of incident. Its argument is essentially two-fold: first,
it contends that the Macondo well incident was a marine oil spill, and the Clean
Air Act specifically precludes the CSB from investigating all marine oil spills;
second, it contends that even if the statute does not preclude the CSB from
investigating all marine oil spills, the CSB could not investigate this incident
because the NTSB had jurisdiction to investigate.
Transocean’s argument is based on the following provision of the Clean
Air Act:
The Board shall coordinate its activities with investigations and
studies conducted by other agencies of the United States having a
responsibility to protect public health and safety. The Board shall
enter into a memorandum of understanding with the National
Transportation Safety Board to assure coordination of functions
and to limit duplication of activities which shall designate the
National Transportation Safety Board as the lead agency for the
investigation of releases which are transportation related. The
Board shall not be authorized to investigate marine oil spills, which
the National Transportation Safety Board is authorized to
investigate. The Board shall enter into a memorandum of
understanding with the Occupational Safety and Health
Administration so as to limit duplication of activities. In no event
shall the Board forego an investigation where an accidental release
causes a fatality or serious injury among the general public, or had
the potential to cause substantial property damage or a number of
deaths or injuries among the general public.

§ 7412(r)(6)(E) (emphasis added).

10
 Case: 13-20243 Document: 00512774082 Page: 11 Date Filed: 09/18/2014

No. 13-20243
Transocean argues that the above italicized language shows that the
CSB is not authorized to investigate marine oil spills and that, instead, the
NTSB is authorized to investigate all of those incidents. 3
The district court held that the marine oil spill exclusion did not apply
to the CSB’s investigation of the Macondo well incident because the CSB was
not investigating the marine oil spill associated with the disaster but rather
was investigating the release of gases and the explosion that preceded the
release of oil. We agree with the district court’s conclusion. 4
Although Transocean argues that the primary environmental disaster
resulting from the Macondo well incident was the massive oil spill, it also
concedes in its brief that the blowout, explosion, and fire, followed by the
collapse of the Deepwater Horizon, involved the release of airborne gases. That
release was the triggering of the CSB’s authority to investigate. See
§ 7412(r)(2)(A) (authorizing CSB investigations of accidental releases, which
are defined as “unanticipated emissions[s] . . . into the ambient air”).
Transocean argues, however, that because the CSB’s jurisdiction always
depends on a release of gases, the marine oil spill exclusion (1) necessarily

3 Transocean refers to the emphasized language as the “marine oil spill exclusion.”
For ease of reference we use the same terminology. We also refer to the clause beginning
with the word “which” as the “comma-which” clause.
4 The Coast Guard Report found as follows:

As the well control incident unfolded, an uncontrolled volume of gas
flowed up from the wellhead to the MODU and onto the Drill Floor and Main
Deck. Gas samples collected by Woods Hole Oceanographic Institute on July
27, 2010 show that the composition of the uncontrolled gas discharged from
the well was primarily methane (69.9%), with lesser amounts of ethane (6.9%)
and propane (4.5%). The remainder of the gas consisted of a mixture of various
weight hydrocarbons. Several minutes after the start of the release of gas from
the wellhead, a gas cloud within the flammable range formed over large areas
on several decks. The explosions likely occurred when gas from this cloud
encountered one or more ignition sources on the Drill Floor or elsewhere on the
MODU.
Coast Guard Report, 5-6.
11
 Case: 13-20243 Document: 00512774082 Page: 12 Date Filed: 09/18/2014

No. 13-20243
contemplates an accidental release that would otherwise be within the CSB’s
jurisdiction but is merely incidental to a marine event, and (2) expressly
excludes that event from CSB’s investigatory authority. A contrary conclusion,
Transocean argues, would render the marine oil spill exclusion surplusage.
Transocean’s argument assumes, however, that the CSB may not investigate
any release of gases associated with a marine oil spill. As we explain, we
disagree.
Transocean’s argument is textual, and it is primarily based on the
statutory provision noted above that the CSB “shall not be authorized to
investigate marine oil spills, which the National Transportation Safety Board
is authorized to investigate.” See § 7412(r)(6)(E). According to Transocean’s
reading of that sentence, the statute precludes the CSB from investigating all
marine oil spills insofar as the NTSB has jurisdiction over those occurrences.
We agree with the district court, however, that the CSB is not precluded
from investigating all marine oil spills, but rather only those “spills, which” the
NTSB may investigate. In other words, the CSB may be precluded from
investigating those marine-related incidents that the NTSB is authorized to
investigate. This interpretation of the statute reads “which” to mean “that,”
and it comports with the statutory scheme as a whole.
Transocean contends, however, that based on the rules of grammar and
punctuation the word “which” preceded by a comma creates a nonrestrictive,
descriptive clause so that the declarative portion of the sentence in
§ 7412(r)(6)(E)—precluding investigation of marine oil spills—is controlling.
See, e.g., William Strunk, Jr. & E.B. White, The Elements of Style 3-4 (3d ed.
1979) (hereinafter “Strunk & White”) (explaining that nonrestrictive clauses
introduced by “which” add nonessential parenthetic information and are set off
by commas). If we were reading the sentence in isolation we might agree. But
while the rules of grammar are not irrelevant, we should not “be guided by a
12
 Case: 13-20243 Document: 00512774082 Page: 13 Date Filed: 09/18/2014

No. 13-20243
single sentence or member of a sentence;” rather, we must “look to the
provisions of the whole law, and to its object and policy.” U.S. Nat’l Bank of
Oregon v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 455, 113 S. Ct. 2173,
2182 (1993) (internal quotation marks and citation omitted); cf. United States
v. Flora, 362 U.S. 145, 149, 80 S. Ct. 630, 633 (1960) (noting that a court “does
not review congressional enactments as a panel of grammarians”).
We note first that reading the comma-which clause to mean “that” is
consistent with subsection (E) as a whole and the subsection’s other uses of the
word “which.” In addition to the comma-which, the statute twice uses the word
“which” in the previous sentence, reading thusly: “The Board shall enter into
a memorandum of understanding with the National Transportation Safety
Board to assure coordination of functions and to limit duplication of activities
which shall designate the National Transportation Safety Board as the lead
agency for the investigation of releases which are transportation related.”
§ 7412(r)(6)(E) (emphasis added). The first “which” in this sentence refers to
the “memorandum of understanding” while the second “which” refers to
“releases.” It is clear that each “which” in this sentence should be read as
“that” because the clauses are restrictive, i.e. they give essential meaning
about the preceding nouns (the “memorandum of understanding” and the
“releases”). Although Congress is presumed to know the rules of grammar, see
United States v. Goldenberg, 168 U.S. 102-03, 18 S. Ct. 3, 4 (1897), this
grammatical oversight is understandable, as “[u]sing which for that is perhaps
the most common blunder with these words.” Bryan A. Garner, Garner’s
Dictionary of Legal Usage 889 (3d ed. 2011); see also Strunk & White at 59
(“The use of which for that is common in written and spoken language.”).
If we read the first two uses of “which” in subsection (E) to mean “that,”
it would be natural to construe the comma-which to also mean “that.” See
Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224, 232, 127 S. Ct. 2411,
13
 Case: 13-20243 Document: 00512774082 Page: 14 Date Filed: 09/18/2014

No. 13-20243
2417 (2007) (“[I]dentical words and phrases within the same statute should
normally be given the same meaning.”); see also U.S. Nat’l Bank of Oregon, 508
U.S. at 460, 113 S. Ct. at 2185. Of course, the difference between the first two
uses of the word “which” in subsection (E) and the comma-which clause is the
presence of the comma, and in isolation the comma could be significant. But
“a purported plain-meaning analysis based only on punctuation is necessarily
incomplete and runs the risk of distorting a statute’s true meaning.” Id. at
454, 113 S. Ct. at 2182; see Costanzo v. Tillinghast, 287 U.S. 341, 344, 53 S. Ct.
152, 153 (1932) (“It has often been said that punctuation is not decisive of the
construction of a statute.”). Construing the words in context, as we must, we
strive to “interpret the statute ‘as a symmetrical and coherent regulatory
scheme.’” Brown & Williamson Tobacco Corp., 529 U.S. at 133, 120 S. Ct. at
1301 (citation omitted). Here, we must consider the “comma-which” clause
along with the entire provision as part of “‘a holistic endeavor.’” U.S. Nat’l
Bank of Oregon, 508 U.S. at 455, 113 S. Ct. at 2182 (citation omitted). We will
“‘disregard the punctuation, or repunctuate, if need be, to render the true
meaning of the statute.’” Id. at 462, 113 S. Ct. at 2186 (citation omitted).
Subsection (E) contemplates that the CSB is not the only government
agency charged with a public safety mission and may not be the only
investigating agency; indeed, it expressly directs the CSB to “coordinate its
activities with investigations and studies by other agencies” with responsibility
to protect public health and safety. § 7412(r)(6)(E). Even more specifically,
the statute directs the CSB to “enter into a memorandum of understanding”
with the NTSB in order to coordinate activities, limit duplication of efforts, and
designate the NTSB as the lead agency if an accidental release is
transportation related. Id. We agree with the district court that this provision
must mean there is a category of marine oil spills that are non-transportation
related and over which the NTSB lacks exclusive authority. If the comma-
14
 Case: 13-20243 Document: 00512774082 Page: 15 Date Filed: 09/18/2014

No. 13-20243
which clause of the marine oil spill exclusion simply precluded the CSB from
investigating all marine oil spill incidents there would be no need for the
requirement that CSB coordinate with the NTSB or other government agencies
to avoid duplication of efforts. In context, the structure of the statute,
including the prior uses of the word “which,” indicates an intent that the
comma-which clause was not meant to be non-restrictive.
Moreover, the statute expressly directs the CSB to investigate any time
an accidental release causes a fatality or serious injury to the general public.
See id. (“In no event shall the Board forego an investigation where an accidental
release causes a fatality or serious injury among the general public, or had the
potential to cause substantial property damage or a number of deaths or
injuries among the general public.” (emphasis added)). This must mean that
for especially serious incidents involving either grave injury or the risk of
injury, including marine oil spills, the CSB could have concurrent investigative
authority with other agencies. 5 And again, the CSB would be required to
coordinate its efforts with any other agencies. This provision adds further
support to the conclusion that the marine oil spill exclusion is not the all-
encompassing prohibition that Transocean urges.
We believe that looking at the full text of the statute, rather than one
isolated clause, along with the statute’s structure and its public safety purpose
shows that the comma-which clause was not intended to preclude the CSB from
investigating all incidents involving marine oil spills. See U.S. Nat’l Bank of

5 Transocean argues that this provision of subsection (E) is inapplicable here because
the Macondo well incident was incapable of causing death or injury to members of the general
public insofar as the disaster occurred fifty miles off the coast of the United States. First,
this argument is inapposite to whether the CSB is precluded from investigating all marine
oil spills in the first place. Second, the offshore location of the disaster does not preclude the
potential for injury to persons on shore since it cannot be denied that airborne hazardous
substances could migrate and cause injury on land.
15
 Case: 13-20243 Document: 00512774082 Page: 16 Date Filed: 09/18/2014

No. 13-20243
Oregon, 508 U.S. at 455, 113 S. Ct. at 2182 (eschewing isolated words or
sentences in favor of “a statute’s full text, language as well as punctuation,
structure, and subject matter”). This reading of the statute best comports with
the overall regulatory scheme. See Brown & Williamson Tobacco Corp., 529
U.S. at 133, 120 S. Ct. at 1301; see also U.S. Nat’l Bank of Oregon, 508 U.S. at
461 n.10, 113 S. Ct. at 2186 n.10 (searching for “the best reading of the Act,
despite the punctuation marks”). We conclude, therefore, that the statute did
not categorically preclude the CSB from investigating all incidents that happen
to include a marine oil spill.
Transocean contends that even if the CSB could otherwise investigate
the incident at the Macondo well, it was precluded from doing so in this case
because the NTSB was authorized to investigate. Transocean relies solely on
49 U.S.C. § 1131(a)(1)(F), which grants the NTSB authority to investigate,
inter alia, “catastrophic” accidents that are “related to the transportation of
individuals or property.” It asserts that the Macondo well incident was
catastrophic and that the disaster was related to transportation because the
Deepwater Horizon was a vessel in navigation.
However, when the blowout occurred on April 20, 2010, the Deepwater
Horizon was dynamically positioned and physically attached to the seabed,
having been on site and engaged in drilling operations for a number of months.
The district court held that this fact was crucial to the determination that the
incident was not transportation related. Transocean cites no contrary
authority. Merely because a disaster involves a vessel does not mean that the
disaster was necessarily related to transportation. Although the drilling unit
may have been capable of transportation, it was not involved in transporting
either individuals or property at the time of the blowout, explosion, and fire.
See § 1131(a)(1)(F). In other words, although the Deepwater Horizon possessed
characteristics associated with transportation, those characteristics played no
16
 Case: 13-20243 Document: 00512774082 Page: 17 Date Filed: 09/18/2014

No. 13-20243
role in the disaster, and the accident was not related to transportation. We
agree with the district court that § 1131(a)(1)(F) is inapplicable and that the
NTSB lacked jurisdiction to investigate the incident under that provision,
meaning that the CSB was authorized to act.
IV.
For the reasons stated above, we conclude that the CSB had jurisdiction
to investigate the incident at the Macondo well and to issue the administrative
subpoenas. The district court’s judgment ordering enforcement of the
subpoenas is therefore AFFIRMED.

17
 Case: 13-20243 Document: 00512774082 Page: 18 Date Filed: 09/18/2014

No. 13-20243
JONES, Circuit Judge, dissenting.

I respectfully disagree with the majority opinion, which assists the
United States Chemical Safety Board (“CSB”) in expanding its jurisdiction into
novel territory disallowed by Congress. This is the first time, in twenty years
after CSB was ordained, that the agency has sought to investigate in
connection with an offshore oil spill. 1 The majority’s interpretation of the
Clean Air Act disregards the plain meaning of words and grammar and the
most fundamental maritime concept, which is the definition of a vessel. To
summarize my view: the Mobile Offshore Drilling Unit Deepwater Horizon
was a vessel, not a “stationary source” pursuant to 42 U.S.C. § 7412(r)(2)(C),
and the Macondo Well blowout caused a “marine oil spill,” 42 U.S.C.
§ 7412(r)(6)(E), which excluded the blowout from CSB jurisdiction either in toto
or because the NTSB was empowered to investigate.
Because the majority opinion aptly describes the background of this
controversy, only a bit need be repeated here. Transocean objects to
administrative subpoenas served by CSB when the agency instituted an
investigation following the Deepwater Horizon oil spill disaster. The standard
for challenging an administrative subpoena is strict: courts may only interfere
with the process in a limited number of circumstances, one of which arises
when the agency plainly lacks jurisdiction. See Burlington N. R. Co. v. Office
of Inspector Gen., R.R. Ret. Bd., 983 F.2d 631, 638 (5th Cir. 1993); see also
United States v. Powell, 379 U.S. 48, 57–58, 85 S. Ct. 248, 255 (1964). CSB
was created as a Clean Air Act counterpart to the National Traffic Safety Board
(“NTSB”) and charged with investigating unanticipated releases of hazardous
substances into the ambient air from “stationary sources.” 42 U.S.C.
§ 7412(r)(2)(C) (defining the term “accidental release” found in 42 U.S.C.

1 Inside OSHA, Vol. 17, No. 13, at 6 (June 29, 2010).
18
 Case: 13-20243 Document: 00512774082 Page: 19 Date Filed: 09/18/2014

No. 13-20243
§ 7412(r)(6)(C)(i)). The term “stationary sources,” includes “any buildings,
structures, equipment, installations or substance emitting stationary
activities. . . ." 42 U.S.C. § 7412(r)(2)(C). The Board may follow up an
investigation by recommending regulatory measures to avert future releases
into the air. NTSB, in contrast, investigates “transportation-related” aviation,
highway, rail, marine or pipeline accidents and also makes regulatory
recommendations to improve safety. 49 U.S.C. § 1131(a)(1)(F). Not only CSB
and NTSB, but numerous other agencies either routinely or at special request
investigate accidents with significant public impact. As a result, the statute
that created CSB requires this agency to cooperate with or take a second seat
to such agencies:
The Board shall coordinate its activities with investigations
and studies conducted by other agencies of the United States
having a responsibility to protect public health and safety. The
Board shall enter into a memorandum of understanding with the
National Transportation Safety Board to assure coordination of
functions and to limit duplication of activities which shall
designate the National Transportation Safety Board as the lead
agency for the investigation of releases which are transportation
related. The Board shall not be authorized to investigate marine
oil spills, which the National Transportation Safety Board is
authorized to investigate. The Board shall enter into a
memorandum of understanding with the Occupational Safety and
Health Administration so as to limit duplication of activities. In no
event shall the Board forego an investigation where an accidental
release causes a fatality or serious injury among the general
public, or had the potential to cause substantial property damage
or a number of deaths or injuries among the general public.

42 U.S.C. § 7412(r)(6)(E).

Under this provision, if the Deepwater Horizon was not a stationary
source, CSB lacked the authority to investigate. Likewise, if the disaster was
a marine oil spill, or by even the majority’s construction a marine oil spill that

19
 Case: 13-20243 Document: 00512774082 Page: 20 Date Filed: 09/18/2014

No. 13-20243
NTSB was authorized to investigate, CSB lacks authority. I will discuss each
of these limits on CSB’s authority in turn.
1. Can a vessel be a “stationary source”?
This question seems to answer itself. A “vessel,” as defined in federal
law, is a device capable of providing transportation on water. 1 U.S.C. § 3;
Stewart v. Dutra Construction Co., 543 U.S. 481, 495, 125 S. Ct. 1118, 1128
(2005). “Stationary” means “fixed in a station, course or mode; unchanging,
stable, static.” Webster's Third New International Dictionary 2229 (1986). Not
only does “stationary” modify all of the following terms, but the following
illustrations of “stationary sources” are inherently fixed and immobile
(“buildings, structures, equipment, installations . . .”). A vessel capable of
transportation is not comparable to these illustrated sources and cannot be a
stationary source of emissions. To so conclude erases the line between
stationary and mobile sources.
But the majority determines otherwise. First, the majority opinion
acknowledges that the Deepwater Horizon is a vessel according to Coast Guard
regulations, Supreme Court authority, longstanding case law in this circuit,
and multiple decisions relating to this oil spill disaster. However, the majority
contends, what is good law for maritime purposes does not govern the Clean
Air Act’s statutory definition. Alternatively, the majority holds, the Deepwater
Horizon was in fact “stationary” when the blowout and oil spill occurred,
because its dynamic positioning devices kept the unit essentially in place
without anchors securing it to the ocean floor while it engaged in drilling
operations. Finally, the majority posits that the “Macondo drilling installation
as a whole,” allegedly encompassing the drill string, riser, blowout preventer,
wellhead and casing, all of which stretch over a mile down and into the Outer
Continental Shelf seabed, maintained a stationary position.

20
 Case: 13-20243 Document: 00512774082 Page: 21 Date Filed: 09/18/2014

No. 13-20243
The majority’s fundamental error lies in distorting “stationary” from its
ordinary meaning, as required by the tools of statutory interpretation, Castro
v. Collecto, Inc., 634 F.3d 779, 786 (5th Cir. 2011). The Deepwater Horizon
was a “vessel” from a common sense standpoint. Technically, it was a
“dynamically-positioned semi-submersible drilling vessel” that was afloat and
under movement at the time of the blowout. See In re Oil Spill by the Oil Rig
Deepwater Horizon in the Gulf of Mexico, on April 20, 2010, 808 F. Supp. 2d
943, 950 (E.D. La. 2011), aff'd sub nom. In re Deepwater Horizon, 745 F.3d 157
(5th Cir. 2014). It navigated, transported personnel and equipment, and
continued navigating in order to hold its position in the sea against currents
and waves. That it was able to employ advanced technology to accomplish its
purpose, rather than sails or rudders, does not detract from its status as a
vessel; hence, its status as a “mobile” offshore drilling unit. At all times, it had
a navigational crew in addition to a drilling crew. The issue here is not so
much whether the Clean Air Act definition must slavishly follow the course of
maritime law, but also whether calling this “mobile” offshore drilling a “vessel”
conflicts with the ordinary meaning of a “stationary source.”
Virtually every opinion of this court relating to the Deepwater Horizon
oil spill disaster has referred to the MODU as a “vessel,” 2 and in so doing we
have followed a path charted in this court for decades. See, e.g., Trico Marine
Operators, Inc. v. Falcon Drilling Co., 116 F.3d 159, 161 (5th Cir. 1997);
Dougherty v. Santa Fe Marine, Inc., 698 F.2d 232, 234 (5th Cir. 1983); Offshore
Co. v. Robison, 266 F.2d 769, 779 (5th Cir. 1959). Our decisions reflect how

2See, e.g., In re Deepwater Horizon, 753 F.3d 570, 571 (5th Cir. 2014); In re Deepwater
Horizon, 745 F.3d 157, 164 (5th Cir. 2014); In re Deepwater Horizon, 739 F.3d 790, 796 (5th
Cir. 2014) (labeling the MODU as a vessel).

21
 Case: 13-20243 Document: 00512774082 Page: 22 Date Filed: 09/18/2014

No. 13-20243
maritime activities have evolved in the last fifty years to include new and ever-
more-sophisticated watercraft. The Supreme Court has also defined “vessels”
expansively as “any watercraft practically capable of maritime transportation.”
Stewart v. Dutra Constr. Co., 543 U.S. 481, 497, 125 S. Ct. 1118, 1128 (2005).
Also compelling is the Coast Guard’s responsibility for regulating mobile
offshore drilling units, which recently led it to conclude that if anything, their
status as vessels should be fortified. Memorandum from S.D. Poulin, U.S.
Coast Guard, to CG-5, Potential Legal Issues Associated With Vessels
Employing Dynamic Positioning Systems 10 (Feb. 11, 2011). Why, in the face
of ordinary meaning and this body of consistent authority, should a court be
able to hold that the Deepwater Horizon, although a “vessel,” was a “stationary
source”? This is like holding a pig is a pony. The language of the statute is
broad but it isn’t limitless. Either “stationary” means something related to
immobility, or judges are making up a new meaning.
The majority’s other reasons for holding that the Deepwater Horizon was
a “stationary source” also defy common sense. The majority’s description of
the sophisticated dynamic positioning system used by Mobile Offshore Drilling
Units like the Deepwater Horizon is flawed and, worse, leads to the possibility
that CSB jurisdiction will turn on fact-specific determinations of “stationary”
versus “mobile” sources. Factually, it is true that the thrusters operated by
the MODU’s navigational crew kept the unit positioned substantially over the
wellhead, but the unit continues at all times to move with the wave motions.
Essentially, the thrusters permit the unit to tread water. Anyone treading
water, however, is constantly in motion, and so was the Deepwater Horizon.
Likewise, a helicopter may hover in place over the ground, but it is always in
motion, and I suppose even CSB would not contend it is a “stationary source.”
Even more unfortunate is the resort to fact-specific reasoning to
determine that this vessel is a “stationary source.” Since the statute draws a
22
 Case: 13-20243 Document: 00512774082 Page: 23 Date Filed: 09/18/2014

No. 13-20243
dichotomy between the CSB’s responsibility for “stationary source” accidental
air releases and NTSB’s jurisdiction over “transportation-related” disasters,
the CSB’s aggressive attempt to blur the dichotomy is at odds with the statute
itself. (As will be seen, CSB is horning into the primary jurisdiction of NTSB
by urging this court to narrow NTSB’s scope as well.) Of course, the statute
contemplates splitting duties between NTSB and CSB in appropriate cases,
and in such cases requiring CSB to yield to NTSB, but one can easily envision
overlaps without CSB’s having to mutilate the definition of “stationary.” For
instance, if a chemical tank exploded at a rail yard and emitted hazardous
fumes, there could be a question whether the cause was transportation-related
or due to a stationary source nearby. Similarly, toxic substances or fuel used
in connection with aircraft and aircraft maintenance might ignite at an
aviation center, emitting hazardous air pollutants. The cause of either
accident could be “stationary” or “transportation-related.” In the Deepwater
Horizon disaster, however, CSB contends that the vessel itself was the
“stationary source” because it was dynamically positioned. Henceforth, the
same argument could result in fully overlapping CSB/NTSB authority
whenever a vehicle, aircraft, or vessel happens to be temporarily moored at the
time of an unanticipated toxic air emission.
The majority’s final rationale for calling this mobile offshore drilling unit
a “stationary source” is to embed it in an “installation as a whole”
encompassing the Macondo well and the well’s casing 3 and wellhead, 4 which

3 Casing, SCHLUMBERGER OILFIELD GLOSSARY, (last visited Sept. 16, 2014),
http://www.glossary.oilfield.slb.com/en/Terms/c/casing.aspx (“Large-diameter pipe lowered
into an openhole and cemented in place.”).

4 Wellhead, SCHLUMBERGER OILFIELD GLOSSARY, (last visited Sept. 16, 2014),
http://www.glossary.oilfield.slb.com/en/Terms/w/wellhead.aspx (“The system of spools, valves
and assorted adapters that provide pressure control of a production well.”).

23
 Case: 13-20243 Document: 00512774082 Page: 24 Date Filed: 09/18/2014

No. 13-20243
are located underneath or at the level of the seabed. This bottom-up logic is
erroneous for two reasons.
First, common sense tells us that the five thousand feet of drill string,
plus riser and blowout preventer leading from the MODU to the well hardly
created a stationary island 50 miles off the United States coast in the Gulf of
Mexico. The MODU Deepwater Horizon and its appurtenances are connected
to the seabed. 5 But it is quite inconsistent to say that the “installation” is
stationary when the only reason for its being stationary is that the vessel uses
dynamic positioning thrusters and is constantly in motion to maintain stability
over the wellhead. Broadening the term “installation” to denominate the
Macondo well and the Deepwater Horizon a “stationary source” is nothing
more than rhetorical legerdemain designed to obfuscate the limits on CSB’s
jurisdiction.
Second, both statutory law and well settled case law have distinguished
between fixed and mobile drilling platforms and offshore devices for decades.
The Outer Continental Shelf Lands Act distinguishes between “artificial
islands” and vessels in order to demarcate between the application of federal
or state law and admiralty law. See 43 U.S.C. § 1333(1) (distinguishing
between artificial islands subject to the choice of law provisions of
43 § 1333(2)(A) and vessels not subject to such provisions); see also Herb's
Welding, Inc. v. Gray, 470 U.S. 414, 421–23, 105 S. Ct. 1421, 1426–27 (1985)
(outlining the division between artificial islands subject to “borrowed state

5 The majority’s bottom-up logic is hard to square with a recent opinion of this Court
that referred to the blowout preventer and riser as “appurtenances” of the vessel Deepwater
Horizon, and the vessel and its appurtenances as separate from the well. In re Deepwater
Horizon, 753 F.3d 570, 571 (5th Cir. 2014); Jerome B. Grubart, Inc. v. Great Lakes Dredge &
Dock Co., 513 U.S. 527, 535, 115 S. Ct. 1043, 1049 (1995) ([M]aritime law … ordinarily treats
an “appurtenance” attached to a vessel in navigable waters as part of the vessel itself.”).

24
 Case: 13-20243 Document: 00512774082 Page: 25 Date Filed: 09/18/2014

No. 13-20243
law” and other areas subject to maritime law). Artificial islands are drilling or
production platforms attached to the seabed in some way and thus fully
immobile, while other special purpose structures “such as jack-up rigs,
submersible drilling barges, derrick barges, spud barges, and others are
vessels as a matter of law.” Manuel v. P.A.W. Drilling & Well Service, Inc.,
135 F.3d 344, 347 (5th Cir. 1998). It is bedrock that “[w]e assume that
Congress is aware of existing law when it passes legislation.” Miles v. Apex
Marine Corp., 498 U.S. 19, 32 (1990); see also Goodyear Atomic Corp. v. Miller,
486 U.S. 174, 184–85, 108 S. Ct. 1704, 1712 (1988) (“We generally presume
that Congress is knowledgeable about existing law pertinent to the legislation
it enacts."). Setting aside the “marine oil spill exclusion” discussed next, the
CSB’s jurisdiction over artificial islands as “stationary” sources fits
comfortably within the OCSLA dichotomy and background law. Just as
clearly, characterizing the MODU Deepwater Horizon with or without the
Macondo well as “stationary” does not. The majority’s deviation from
background law violates the ordinary interpretive presumption as well as the
facts.
2. Can the "marine oil spill exclusion" be excluded?
It is unnecessary to wade into the parties’ “comma, which” dispute to
reach a sensible interpretation of 42 U.S.C. § 7412(r)(6)(C)(i), which excludes
marine oil spills from CSB’s investigative authority. This provision as a whole
expresses Congress’s recognition that other agencies have regulatory
jurisdiction over hazardous releases into the ambient air. Consequently, CSB
has to cooperate and coordinate with such agencies in furtherance of public
health and safety. Foreseeing significant potential overlaps, Congress paid
particular attention to the interrelation of CSB with two agencies: the OSHA
and NTSB. NTSB, relevant here, is deemed the lead agency for releases
“which” are “transportation related.” We know from the Supreme Court that
25
 Case: 13-20243 Document: 00512774082 Page: 26 Date Filed: 09/18/2014

No. 13-20243
“related-to” language is enabling in the broadest sense. Ingersoll-Rand Co. v.
McClendon, 498 U.S. 133, 138–39, 111 S. Ct. 478, 482–83 (1990) (discussing
the breadth of the “related-to” pre-emption language in § 514(a) of ERISA).
The CSB, moreover, “shall not be authorized to investigate marine oil spills,
which the National Transportation Safety Board is authorized to investigate.”
Nevertheless, “[i]n no event shall the [CSB] forego an investigation where an
accidental release causes a fatality or serious injury among the general public
or had the potential to cause substantial property damage or a number of
deaths or injuries among the general public.” I part company with the majority
on the applicability of the “marine oil spill exclusion” and their interpretation
of the “danger to the public” catchall language.
Taking the “marine oil spill exclusion” first, even if this language is read
holistically and narrowly to exclude CSB from only those marine oil spills
“that” the NTSB may investigate, this marine oil spill was “related to”
transportation through the movement of hydrocarbons from the well through
the drill string to the Deepwater Horizon 6 and by virtue of the vessel’s constant
movement. On the face of the provision, where NTSB was authorized to
investigate, CSB must recede. Curiously, however, to expand CSB jurisdiction,
at the expense of the NTSB, the majority accepted two of CSB’s propositions:
this oil spill disaster, the largest in American history, was not within the
“marine oil spill exclusion,” and even if it was, NTSB lacked jurisdiction. These
arguments are wrong. The first one would eviscerate the “marine oil spill
exclusion” completely. The second erroneously limits NTSB’s authority.
Holding that the “marine oil spill exclusion” does not apply if hazardous
substances were incidentally released into the air during a “marine oil spill”

6 Recall that NTSB is also charged to investigate pipeline disasters.
26
 Case: 13-20243 Document: 00512774082 Page: 27 Date Filed: 09/18/2014

No. 13-20243
turns the exclusion on its head and renders it a nullity. 7 Virtually any offshore
crude oil spill involves the emission of fumes, because petroleum produced from
wells is “oil,” more technically, "[a] complex mixture of naturally hydrocarbon
compounds found in rock. . . . [T]he term is generally used to refer to liquid
crude oil. Impurities, such as sulfur, oxygen and nitrogen are common in
petroleum.” Petroleum, SCHLUMBERGER OILFIELD GLOSSARY, (last visited
Sept. 16, 2014), www.glossary.oilfield.slb.com/en/Terms/p/petroleum.aspx.
The lighter hydrocarbons and impurities in crude oil readily evaporate into the
air; as we all know, there is no smoking at gas pumps because of the volatility
of hydrocarbons in “oil.” CSB’s attempt to separate these mixed hydrocarbons
temporally from the oil spill disaster, by purporting to focus its investigation
on the emission of fumes that ignited and exploded at the platform, is
unrealistic. How unrealistic is confirmed by the scope of the agency’s subpoena
at issue here: CSB called for all of the documents that Transocean turned over
to all of the other investigating agencies concerning the blowout, explosion and
oil spill. Why? Because the liquid and gaseous hydrocarbons all spewed from
the well due to the same errors during the drilling process. The investigation
cannot be limited to ambient air releases apart from the events that triggered
the marine oil spill. This position is factually unsupportable.
Equally untenable is the holding that NTSB lacked authority to
investigate this disaster. NTSB has jurisdiction over “any other accident
related to the transportation of individuals or property when the [NTSB]
decides--
(i) the accident is catastrophic;
(ii) the accident involves problems of a recurring

7 It is an established principle of statutory interpretation that “[w]here possible, every
word in a statute should be given meaning.” G.M. Trading Corp. v. C.I.R., 121 F.3d 977, 981
(5th Cir. 1997).

27
 Case: 13-20243 Document: 00512774082 Page: 28 Date Filed: 09/18/2014

No. 13-20243
character; or
(iii) the investigation of the accident would carry
out this chapter.

49 U.S.C. § 1131(a)(1)(F). The majority fall back on their faulty conclusion that
the oil spill disaster was not “transportation related.” 8 Remarkably, the
majority must conclude that “[m]erely because a disaster involves a vessel does
not mean that the disaster was necessarily related to transportation.” I have
already explained why the MODU’s status as a vessel is dispositive of the
“stationary source” argument; the factual and legal points made there apply
even more clearly to this argument. The logical implication of the majority’s
interpretation forbids NTSB to operate in its area of expertise when certain
catastrophic disasters involve a temporarily immobile vehicle, airplane, train,
vessel or pipeline activity. The settled legal interpretation of "related" forbids
this artificial constraint.
Finally, the majority erroneously relies on CSB’s catchall investigative
power over fatalities, serious injuries or property damages to “the general
public.” 42 U.S.C. § 7412(r)(6)(E). The Deepwater Horizon’s crew were
specialized oilfield or marine employees covered by OSHA, not “the general
public.” To be sure, this catchall is an empowering provision, just as
Section 1131(a)(1)(F) is empowering to the NTSB. Unlike the NTSB provision,
which empowers transportation “related” investigations, CSB’s provision
covers actual or potential injuries, fatalities or property damage to “the general
public.” On the facts of this case, the provision is clearly inapplicable. CSB
posits its jurisdiction only over the explosion on the MODU Deepwater Horizon

8The present case involves an accident on the Outer Continental Shelf and is therefore
unlike NTSB v. Carnival Cruise Lines, Inc., 723 F. Supp. 1488, 1493 (S.D. Fla. 1989), which
dealt with an “extraterritorial investigation” outside of U.S. territory. Since 43 U.S.C.
§ 1331(a) makes clear that the Outer Continental Shelf is under U.S. law, any investigation
would not be extraterritorial.
28
 Case: 13-20243 Document: 00512774082 Page: 29 Date Filed: 09/18/2014

No. 13-20243
that was occasioned by the release of volatile hydrocarbons from the well. The
Macondo well was located 50 miles offshore of Louisiana. No one has ever
claimed that injury occurred to “the general public” onshore from releases into
the ambient air. The term “public” is defined to mean “of, relating to, or
affecting the people as an organized community.” Webster’s Third New
International Dictionary 1836 (1986); see also Black’s Law Dictionary 1264
(8th ed. 1999) (defining public as “[r]elating or belonging to an entire
community”). The workers who tragically lost their lives in the vessel’s
explosion are not, under this definition, “the general public.” Congress could
have easily described CSB’s catchall jurisdiction by referring to “individuals”
or “any person,” but it chose a different term.
Conclusion
This case strictly and properly concerns an agency’s statutory authority
to issue subpoenas and conduct an investigation. The much broader
ramifications of the decision should not, however, be overlooked. First, when
Congress has delineated agency authority against clear background principles
and with easily defined terms, the agency itself should not play havoc with the
statute to expand its authority; an agency has a duty to follow its mandate but
go no further. For the sake of maintaining limited government under the rule
of law, courts must be vigilant to sanction improper administrative overreach.
See, e.g., Util. Air Regulatory Grp. v. E.P.A., 134 S. Ct. 2427, 2449 (2014)
(holding that the EPA exceeded its statutory authority). Second, contrary to
some fears expressed about the consequences of holding CSB unable to
investigate the Deepwater Horizon disaster, there were at least seventeen
investigations, including major reports by a Presidential Commission and the
Coast Guard. See Exec. Order No. 13,543, 75 Fed. Reg. 29,397 (May 21, 2010)
(establishing the National Commission on the BP Deepwater Horizon Oil Spill
and Offshore Drilling). The Coast Guard, in fact, was required to “make an
29
 Case: 13-20243 Document: 00512774082 Page: 30 Date Filed: 09/18/2014

No. 13-20243
investigation and public report on each major fire and each major oil spillage
occurring as a result of” exploration, development and production of minerals
from the OCS. 43 U.S.C. § 1348(d)(1). There is no dearth of proper
investigation to protect public safety. Third, as a result of being deemed by
this opinion “stationary sources,” nearly all non-standard offshore vessels
involved in oil and gas production on the OCS will become subject to Clean Air
Act regulation and reports in addition to “all of the regulatory requirements of
‘traditional’ vessels” imposed by the Coast Guard. See 42 U.S.C.
§ 7412(r)(7)(B)(iii); Memorandum from S.D. Poulin, U.S. Coast Guard, to CG-
5, Potential Legal Issues Associated With Vessels Employing Dynamic
Positioning Systems 10 (Feb. 11, 2011).
For all these reasons, I respectfully dissent.

30