PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-1712

WEST VIRGINIA STATE UNIVERSITY BOARD OF GOVERNORS,

Plaintiff - Appellee,

v.

THE DOW CHEMICAL COMPANY; UNION CARBIDE CORPORATION; BAYER CORPORATION; BAYER CROPSCIENCE LP; BAYER CROPSCIENCE HOLDING, INCORPORATED; RHONE-POULENC, INCORPORATED, RHONE- POULENC AG COMPANY; RHONE-POULENC AG COMPANY, INC.; AVENTIS CROPSCIENCE USA, LP,

Defendants - Appellants.

Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. John T. Copenhaver, Jr., Senior District Judge. (2:17-cv-03558)

Argued: September 21, 2021 Decided: January 10, 2022

Before GREGORY, Chief Judge, NIEMEYER, and RICHARDSON, Circuit Judges.

Affirmed by published opinion. Chief Judge Gregory wrote the opinion, in which Judge Niemeyer and Judge Richardson joined.

ARGUED: Kasdin Miller Mitchell, KIRKLAND & ELLIS LLP, Washington, D.C., for Appellants. Benjamin James Hogan, BAILEY & GLASSER LLP, Morgantown, West Virginia, for Appellee. ON BRIEF: Douglas J. Kurtenbach, Nader R. Boulos, Daniel I. Siegfried, KIRKLAND & ELLIS LLP, Chicago, Illinois; Floyd E. Boone, Jr., BOWLES RICE, LLP, Charleston, West Virginia, for Appellants. Samuel A. Hrko, Victor S. Woods, Charleston, USCA4 Appeal: 20-1712 Doc: 67 Filed: 01/10/2022 Pg: 2 of 43

West Virginia, Brian A. Glasser, BAILEY & GLASSER LLP, Washington, D.C., for Appellee.

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GREGORY, Chief Judge:

This case deals with groundwater contamination on land owned by West Virginia

State University (“WVSU”), a historically Black university, which is adjacent to a 433-

acre industrial park located in Institute, West Virginia that consists of a chemical

manufacturing plant and wastewater treatment unit (the “Institute Facility”). The suit

asserts several state and common law claims and seeks that Defendants adopt remedial

measures, beyond those recommended by the U.S. Environmental Protection Agency

(“EPA”), to address contamination on property owned by WVSU. On July 7, 2017,

Defendants removed the action to federal district court invoking federal question

jurisdiction, diversity jurisdiction, and federal officer jurisdiction pursuant to 28 U.S.C.

§§ 1331, 1332, 1441, 1442, and 1446. On August 7, 2017, Plaintiff filed a motion to

remand to state court. On June 1, 2020, the district court granted Plaintiff’s motion to

remand. Dow Chemical appealed. We conclude that the district court did not err in holding

that neither 28 U.S.C. §§ 1442 nor 1331 confer federal jurisdiction over WVSU’s claims.

For the following reasons, we affirm the district court’s ruling.

I.

A.

In 1890, WVSU received a land grant from the U.S. Congress. Beginning in 1943,

the Institute Facility was owned by the federal government who used it as a synthetic rubber

production plant during World War II. J.A. 220. Then, in 1947, the Union Carbide

Corporation (“UCC”) purchased the Institute Facility and began manufacturing various

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hydrocarbon and agricultural products. J.A. 80–81. In May 201