Earlier this month, the U.S. Court of Appeals for the Eleventh Circuit held in City of Brunswick v. Honeywell International, Inc., 2026 WL 2224648 (11th Cir. Aug. 3, 2026), that potentially responsible parties (“PRPs”) implementing an EPA-selected CERCLA remedy pursuant to a consent decree may be “acting under” a federal officer for purposes of the federal officer removal statute, 28 U.S.C. § 1442(a)(1). The decision may provide a basis for such PRPs to remove related state-law claims to federal court. The decision also holds that an appeal of a remand order involving federal officer removal automatically stays district court proceedings, including the remand order, pending appeal.

The case involves a Superfund site in Brunswick, Georgia, contaminated with hazardous substances from historical industrial operations, including mercury and PCBs. In 1995, Honeywell and Georgia Power entered into an Administrative Order on Consent with EPA to conduct a remedial investigation and feasibility study. EPA subsequently listed the site on the National Priorities List, selected a remedy in a 2015 Record of Decision, and in 2016 entered into a consent decree requiring the defendants to implement the remedy under EPA oversight.

The City of Brunswick brought continuing nuisance and trespass claims against the companies in Georgia state court, alleging that contamination continued to affect City property and that the defendants had failed to adequately remediate it. The defendants removed the action to federal court, but the district court remanded, concluding that EPA’s supervision of the remediation was insufficient to establish federal officer jurisdiction. The Eleventh Circuit reversed.

Applying the three-part test for federal officer removal, the Eleventh Circuit concluded that (1) the defendants were “acting under” the EPA; (2) the City’s claims were sufficiently related to the defendants’ EPA-directed remediation; and (3) the defendants asserted a colorable federal defense based on conflict preemption.

In addressing the first prong, the court distinguished ordinary regulatory compliance from performing a delegated federal function. Under CERCLA, EPA must either clean up Superfund sites itself or compel responsible parties to do so. Because EPA required the defendants to implement its selected remedy and retained substantial control over that work, the court concluded that the defendants were performing work EPA otherwise would have had to perform. The court distinguished a Fourth Circuit decision involving RCRA corrective action undertaken pursuant to a federal permit, where the relationship with EPA amounted to regulatory compliance rather than performance of a federal function.

As to the second prong, the court applied the Supreme Court’s recent decision in Chevron USA Inc. v. Plaquemines Parish and concluded that the City’s nuisance and trespass claims were sufficiently related to the federally directed remediation. The City alleged that the defendants had failed to adequately remove contamination from City property, while the defendants alleged that CERCLA and the consent decree governed what remedial actions they could undertake. The court emphasized that 28 U.S.C. § 1442 does not require strict causation. Rather, the challenged conduct must be “closely connected” to the defendant’s federally directed activities.

On the third prong, the court held that the defendants asserted a colorable federal defense based on conflict preemption. Because CERCLA  restricts PRPs from undertaking remedial action without federal authorization once their obligations have been defined pursuant to an administrative order or consent decree following a remedial investigation and feasibility study, 42 U.S.C. § 9622(e)(6), the defendants plausibly argued that state-law remedies requiring additional or different cleanup could conflict with the EPA-selected remedy. The Eleventh Circuit emphasized that the ultimate validity of the defense was not before it at the removal stage.

City of Brunswick provides a basis for CERCLA PRPs performing EPA-directed cleanup work to obtain a federal forum for state-law claims challenging the scope or adequacy of that remediation, particularly where EPA has selected the remedy, required the PRP to implement it, and retains substantial oversight.

Notably, the Eleventh Circuit went on to apply the Griggs principle as interpreted in Coinbase, Inc. v. Bielski and held that an appeal of a remand order under 28 U.S.C. § 1447(d) automatically stays the district court proceedings, including the remand order, pending appeal. In reaching that conclusion, the court aligned itself with the Fourth Circuit and expressly disagreed with the Ninth Circuit, which has held that a stay in this context is discretionary rather than automatic.

Share | Email| Print| Comments|  Topics: Causation, CERCLA, Cleanup, Consent Decree, Contamination, Eleventh Circuit, EPA, Federal Jurisdiction, Potentially Responsible Parties, Preemption, Remediation, Removal, Subject Matter Jurisdiction, Superfund