March 10, 1993    UNITED STATES COURT OF APPEALS

                      FOR THE FIRST CIRCUIT

                                             

No. 92-1949

            AMERICAN POLICYHOLDERS INSURANCE COMPANY,
                      Plaintiff, Appellant,

                                v.

                  NYACOL PRODUCTS, INC., ET AL.,
                      Defendants, Appellees.

                                             

                           ERRATA SHEET

     The opinion of  the Court  issued on February  24, 1993,  is
corrected as follows:

     On page 16, line 25   insert semicolon after "579"

     On page 18, line 15   change "support" to "supports"

February 24, 1993 UNITED STATES COURT OF APPEALS
                      For The First Circuit

                                             

No. 92-1949

            AMERICAN POLICYHOLDERS INSURANCE COMPANY,
                      Plaintiff, Appellant,

                                v.

                  NYACOL PRODUCTS, INC., ET AL.,
                      Defendants, Appellees.

                                             

           APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

           [Hon. William G. Young, U.S. District Judge]
                                                      

                                             

                              Before

                      Selya, Circuit Judge,
                                          

                  Coffin, Senior Circuit Judge,
                                              

                    and Stahl, Circuit Judge.
                                            

                                             

     Jennifer  S.D.  Roberts,  with  whom  Rackemann,   Sawyer  &amp;
                                                                 
Brewster, P.C. was on brief, for appellant.
              
     Catherine  M. Flanagan,  Attorney,  Department  of  Justice,
                           
Environment  &amp; Natural  Resources  Division, with  whom Vicki  A.
                                                                 
O'Meara, Acting Assistant Attorney General, and David C. Shilton,
                                                                
Attorney,  Environment  &amp;  Natural  Resources Division,  were  on
brief,   for   Julie   Belaga,   Regional   Administrator,   U.S.
Environmental Protection Agency, appellee.

                                             

                        February 24, 1993

                                             

          SELYA, Circuit Judge.  This appeal, which arises out of
          SELYA, Circuit Judge.
                              

an insurance company's efforts to secure a binding declaration of

its  rights  and responsibilities  under  an  insurance contract,

poses  an  intriguing  question:    does  the  "officer  removal"

statute, 28 U.S.C.   1442(a)(1), permit a  federal official, sued

only  in her  representative  capacity, to  remove  an action  to

federal district court?   Because we think that the  statute does

not confer such a right, and because there is no other cognizable

basis  for  federal  jurisdiction,  we return  the  case  to  the

district court with instructions  that it be remitted to  a state

forum.

                                I

          From  1917  until  1977,  a  succession  of  dye-houses

occupied  a thirty-five  acre  plot  in  Ashland,  Massachusetts.

During  these six  decades,  toxic wastes  impregnated the  site.

Eventually,  the  United States  Environmental  Protection Agency

(EPA)  and   the   Massachusetts  Department   of   Environmental

Protection (DEP)  discovered  the pollution  and  documented  its

source  in the dye manufacturing  processes.  In  early 1982, EPA

notified Nyacol Products, Inc.  (Nyacol), a producer of colloidal

silicas at  a portion  of the site,  that it considered  Nyacol a

potentially  responsible  party  (PRP)  under  the  Comprehensive

Environmental Response, Compensation, and Liability Act (CERCLA),

42 U.S.C.    9601-9626, 9651-9662, 9671-9675.1

                    

     1EPA also branded two of Nyacol's officers, Robert Lurie and
Thomas L.  O'Connor, as PRPs.   Lurie and  O'Connor are named  as
defendants in the  instant suit.  For ease in reference, we refer

                                3

          Pursuant to Massachusetts law,  which deems PRP notices

equivalent  to  law  suits  for  the  purpose  of  triggering  an

insurer's  duty to defend, see  Hazen Paper Co.  v. United States
                                                                 

Fid. &amp; Guar. Co., 555 N.E.2d 576, 581 (Mass. 1990), Nyacol called
                

upon   its   insurance   carrier,  plaintiff-appellant   American

Policyholders  Insurance Company (American), to defend it against

EPA's claims and  to indemnify  it for loss,  costs, damages,  or

other expense related thereto.   American provisionally undertook

the company's  defense under  its general  liability policy.   In

December of 1991, American brought suit in a Massachusetts  state

court seeking a declaration  that it had no obligation  to defend

or recompense its insureds.   In addition to naming  the insureds

as parties  defendant,  American  joined  two  other  defendants:

Julie Belaga,  in her  capacity as EPA'S  Regional Administrator,

and Daniel S. Greenbaum,  in his capacity as Commissioner  of the

DEP.    Invoking  the  officer  removal   statute,  28  U.S.C.   

1442(a)(1),Belaga transferredthe actionto federaldistrict court.2

                    

to the  company and  the individual defendants,  collectively, as
"Nyacol"  or "the  insureds."  We  note, moreover,  that although
EPA,  invoking a  theory of  successor liability,  notified these
three defendants  that they  might be  liable for  EPA's response
costs  (past and future), as  well as for  cleanup costs, EPA has
not yet sued  to compel payment of these expenses or otherwise to
enforce its claimed rights.

     2The officer removal statute provides in pertinent part:

               A civil action  or criminal  prosecution
          commenced in a State court against any of the
          following persons 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:

                                4

          On  February  20, 1992,  DEP agreed  to  be bound  by a

declaration  of  rights  in  American's lawsuit  insofar  as  the

judgment resolves insurance coverage  issues.  The case proceeded

against Belaga and the  insureds.  On May 12,  1992, the district

court granted Belaga's motion to  dismiss, reasoning that a  suit

against  her, in her official capacity, was really a suit against

EPA  and that,  since EPA  had never  sued  Nyacol or  brought an

enforcement proceeding  against it, American could  articulate no

justiciable  controversy  with  EPA.   The  court  entered  final

judgment for Belaga,  see Fed. R. Civ. P. 54(b), and remanded all
                         

other  parties and claims to  the state court.   American appeals

from the dismissal order.

                                II

          While  the  parties  vigorously  debate   an  insurance

company's  ability,   consistent  with  Article  III's   case  or

controversy requirement, to join EPA in a coverage dispute before

EPA has brought  an enforcement action against the  insureds, our

discussion seeps into vastly different legal ground.  The impetus

behind this  diversion lies  in  the Supreme  Court's opinion  in

International  Primate  Protection  League  v.  Administrators of
                                                                 

Tulane Educ. Fund, 111 S. Ct.  1700 (1991).  Concerned about  the
                 

implications  of  Primate  Protection League  for  federal  court
                                            

                    

                 (1) Any  officer of the  United States
          or any agency thereof, or person acting under
          him, for any act under color of such office .
          . . .

28 U.S.C.   1442(a)(1) (1988).

                                5

jurisdiction, we requested supplemental  briefing on whether this

action  was  properly  removed  to federal  court.    Both  sides

responded that  removal was valid  under 28  U.S.C.    1442(a)(1)

because of Belaga's status as a federal officer.

          Notwithstanding this accord, we must pursue the matter.

Litigants cannot confer subject matter jurisdiction by agreement.

See  Insurance Corp. of Ir.  v. Compagnie des  Bauxites, 456 U.S.
                                                       

694,  702  (1982); California  v. LaRue,  409  U.S. 109,  113 n.3
                                       

(1972).   Because a federal court is  under an unflagging duty to

ensure  that it has jurisdiction  over the subject  matter of the

cases  it proposes to adjudicate,  we are obliged  to address the

propriety of  removal as a  threshold matter even  though neither

party  has  raised a  question in  that  regard.   See Mansfield,
                                                                 

Coldwater  &amp; Lake Michigan  Ry. Co.  v. Swan,  111 U.S.  379, 382
                                            

(1884)  (stating  that  a federal  appellate  court,  on  its own

motion,  must "deny its own jurisdiction, and, in the exercise of

its  appellate  power, that  of all  other  courts of  the United

States,   in  all   cases  where   such  jurisdiction   does  not

affirmatively appear in the record").

                                A

          The officer  removal statute, 28 U.S.C.    1442 (a)(1),

quoted supra note  2, is  designed to allow  federal officers  to
            

remove  actions   to  federal  court  that   would  otherwise  be

unremovable.   See Willingham  v. Morgan,  395  U.S. 402,  406-07
                                        

(1969)  (stating  that  the section  covers  all  cases in  which

federal officers,  sued in  state court, "can  raise a  colorable

                                6

defense arising out of their duty to enforce federal law").3   In

Primate  Protection  League,  the  Supreme Court  held  that  the
                           

reference to "any agency"  of the United States contained  in the

officer removal statute did not stand alone, but constituted part

of a possessive phrase modifying the  noun "officer."  See 111 S.
                                                          

Ct. at 1705.  Put another way, the statute is to be read as  if a

second  "of"  appeared  in  the text  immediately  following  the

disjunctive "or."   Hence, section 1442(a)(1)  permits removal by

an "officer  of . .  . any agency  [of the United  States]," and,

conversely, does not permit removal by the federal agency itself.

See id. at 1709.
       

          Although  Primate Protection  League  makes it  crystal
                                              

clear  that EPA, as a federal agency,  cannot remove an action to

federal  court  under  color  of section  1442(a)(1),  this  case

presents  a variation on the  theme:  it  requires that we decide

the  closely  related,  but nonetheless  different,  question  of

whether,  for purposes  of the  officer  removal statute,  a suit

brought against  an executive  of an  agency, exclusively  in the
                                                                 

executive's  official capacity,  constitutes  a suit  against  an
                              

"officer,"  thereby permitting  removal under  the statute,  or a

suit against an "agency," thereby precluding such removal.  It is

                    

     3This  is not  to say  that every  case in  which a  federal
                                      
officer  is a defendant is removable.  Rather, removal is limited
to   situations  in   which   the   officer's  removal   petition
demonstrates the existence  of a  federal defense.   See Mesa  v.
                                                             
California, 489 U.S. 121, 136 (1989).
          

                                7

to this inquiry that we now turn.4

                                B

          Generally, a  suit against an officer  in the officer's

official capacity  constitutes  a suit  against the  governmental

entity  which the  officer heads.   For  example, in  Kentucky v.
                                                              

Graham, 473 U.S. 159  (1985), the Court dwelt on  the distinction
      

between  suits against a person  in an individual,  as opposed to

official, capacity.   The Court explained  that while individual-

capacity  actions  "seek  to  impose personal  liability  upon  a
                                             

government official," id. at 165 (emphasis supplied), payable out
                         

of personal assets,  see id. at 166,  an official-capacity action
                            

is, "in  all respects other  than name, to  be treated as  a suit

against  the  entity."    Id.   Phrased  differently,  "official-
                             

capacity suits  generally represent only another  way of pleading

an action  against an entity  of which an  officer is an  agent."

Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 690
                                              

n.55 (1978).   Thus, a string of Supreme Court cases holds that a

suit against a government officer in his or her official capacity

binds the agency  or other governmental  entity, not the  officer

personally.  See, e.g., Graham, 473 U.S. at 166; Brandon v. Holt,
                                                                

469  U.S. 464,  471  (1985); cf.  Larson  v. Domestic  &amp;  Foreign
                                                                 

Commerce Corp.,  337 U.S.  682, 687  (1949) (explaining that,  in
              

deciding  whether  a  suit  against a  government  officer  is an

official-capacity  or  individual-capacity  suit,   "the  crucial

                    

     4The  officer  removal  statute  was first  enacted  in  its
present  form  in  1948.    Its  legislative  history  is  of  no
significant assistance in respect to the inquiry at hand.

                                8

question is whether the relief sought . . . is relief against the

sovereign").

          The  character  of  an  official-capacity suit  is  not

transformed simply because jurisdiction is in issue.  In Loeffler
                                                                 

v. Frank, 486 U.S. 549 (1988), a case in which the plaintiff sued
        

the Postmaster General in  his official capacity, the Court  held

that acts of a  government officer in his official  capacity "are

always chargeable" as  acts of the agency for purposes  of a sue-

and-be-sued clause.   Id. at 563  n.8; see also FHA  v. Burr, 309
                                                            

U.S. 242, 249-50  (1940) (holding that a suit against the head of

an agency in  his official capacity was  indistinguishable from a

suit against the agency itself for purposes of  a sue-and-be-sued

clause  and  that a  waiver of  immunity  as to  the  agency head

necessarily waived the agency's  immunity).  Similarly, even when

pondering  jurisdictional  and quasi-jurisdictional  issues, this

court has consistently accepted and applied the principle that an

official-capacity  suit  against a  government  officer  is fully

equivalent  to a suit against  the agency.   See, e.g., Northeast
                                                                 

Fed. Credit  Union v. Neves,  837 F.2d  531, 533 (1st  Cir. 1988)
                           

("Where  .  . .  claims are  made  against a  government official

acting purely in a representative role, the suit must be regarded

as one against the sovereign."); Culebras Enters. Corp. v. Rivera
                                                                 

Rios,  813 F.2d  506, 516  (1st Cir.  1987) (observing  that, for
    

Eleventh  Amendment   purposes,  an  official-capacity   suit  is

"tantamount to a suit against the [governmental entity]").

          We see no reason  to forsake the general rule    that a

                                9

suit against a government officer in his or her official capacity

is   a  suit   against  the   agency      when  considering   the

appropriateness of  removal under 28  U.S.C.    1442(a)(1).   The

theme of Primate Protection League, logically extended, serves an
                                  

esemplastic purpose,  shaping the officer removal  statute into a

rational whole.  In  that case, the Supreme Court  explained that

when a suit for monetary damages is brought against an officer in

his or  her individual  capacity, the complicated  questions that

arise as to that officer's immunity support a protective grant of

removal jurisdiction.  See Primate Protection League, 111 S.  Ct.
                                                    

at 1708.   By contrast, agencies do  not need the prophylaxis  of

federal removal because determining an agency's immunity,  unlike

determining   an  individual's   immunity,  is   a  "sufficiently

straightforward"  proposition.   Id.    That  rationale  strongly
                                    

favors  treatment  of  official-capacity suits  for  purposes  of

removal in  the same manner as  suits against the agency.   After

all, because a suit  against an officer in her  official capacity

cannot bind the officer personally,  see, e.g., Brandon, 469 U.S.
                                                       

at 471, no issues of immunity can possibly arise that differ from

those arising in a suit directly against the agency.

          Consistency    is    the   touchstone    of   statutory

interpretation.  If we were to hold that a suit nominally against

EPA is not removable, as  Primate Protection League demands,  but
                                                   

then  go on to hold that a  suit nominally against EPA's regional

administrator  in her  official capacity    a  suit that  seeks a

judgment  binding on the EPA   is nonetheless removable, we would

                                10

spawn a  glaring interpretive inconsistency and,  in the bargain,

impugn  the Primate  Court's reasoning.   Given  the identity  of
                   

juridical interest  that exists  between a government  agency and

its executive officer when the latter is sued only in  his or her

official capacity, the  fact that  the agency may  not remove  an

action under  the officer removal statute  compels the conclusion

that  an official-capacity  defendant is  likewise  disabled from

initiating   removal   thereunder.5      See   generally  Primate
                                                                 

Protection  League, 111 S. Ct. at 1708 (explaining that access to
                  

removal  under  section  1442(a)(1)  does  not  turn  on  a "mere

technicality").

                                C

          Our conclusion is  fortified by Judge  Posner's opinion

in Western Secs. Co. v. Derwinski, 937 F.2d 1276 (7th Cir. 1991).
                                 

                    

     5Ordinarily, the  question of  whether a complaint  names an
officer  in  a  personal, as  opposed  to  an official,  capacity
requires  little  more  than a  glance  at  the  pleadings.   If,
however,  a  federal official,  reasonably  believing  himself or
herself to be sued individually, attempts to remove under section
1442(a)(1),  any   dispute  as  to  the   officer's  status  will
necessarily  be resolved  by a  federal court  in the  context of
assaying its own  jurisdiction.   See 14A Charles  A. Wright  et.
                                     
al.,  Federal   Practice  and   Procedure     3730,   at  499-500
                                         
(explaining that a defendant  wishing to remove need only  file a
notice of removal, with the result that the propriety of removal,
if challenged at  all, will "be tested later in the federal court
by a  motion to remand").  Thus, our holding that an officer sued
in an official  capacity may not  remove the  action in order  to
obtain a  federal forum for  resolution of the  underlying merits
will in no way deprive  the officer of access to a  federal forum
for  determination of  whether  the suit  is  in fact  an  action
against him or her personally.   By the same token, if an officer
is sued in both individual and official capacities, we see no bar
to  removal under  section 1442(a)(1).   See  El Gran  Video Club
                                                                 
Corp. v. E.T.D., Inc., 757 F.  Supp. 151, 155 &amp; n.3 (D.P.R. 1991)
                     
(observing that federal courts have removal jurisdiction over all
pendent claims that are not "separate and independent").   

                                11

There, the Seventh Circuit, acting sua sponte, refused to allow a
                                             

federal administrator sued in his  official capacity to remove an

action to federal court  under section 1442(a)(1).  Acknowledging

that,  in  the  aftermath  of Primate  Protection  League,  suits
                                                         

against  federal   agencies  cannot  be   removed  under  section

1442(a)(1), see id. at  1278, Judge Posner wrote that  "while the
                   

suit in this case  is nominally against the Administrator,  it is

against   him  in  his  official  capacity  and  such  suits  are

considered  to be against the  government itself."   Id. at 1279.
                                                        

Thus, the  court concluded that, absent an  alternative basis for

jurisdiction,  dismissal for want  of subject matter jurisdiction

would be required.  See id.6
                           

          We  agree  with   the  Seventh  Circuit   that  Primate
                                                                 

Protection League,  logically extended,  mandates that a  federal
                 

officer  sued  solely in  his or  her  official capacity  may not

remove a suit  to federal court  under the aegis  of 28 U.S.C.   

1442(a)(1).   In the case  before us, this holding  draws the sap

from  the tree:  American's  suit, brought against  Belaga in her

official capacity  and seeking no relief  against her personally,

is in reality a suit against the agency.  It  necessarily follows

that, because EPA itself could not have removed this action under

section  1442, see Primate Protection League, 111 S. Ct. at 1708,
                                            

Belaga's  attempt to  remove under  the same  statutory provision

must fail.

                    

     6In Derwinski  the court  retained jurisdiction  because the
                  
plaintiff's action arose  under federal law.  See  Derwinski, 937
                                                            
F.2d at 1280; see also 28 U.S.C.    1331, 1441 (1988).
                      

                                12

                               III

          Notwithstanding  that  this  action was  infelicitously

removed  under  28  U.S.C.     1442(a)(1)  and  that the  parties

steadfastly   disclaim  any   independent   basis   for   federal

jurisdiction,7 we  inquire whether any other  toehold for federal

court  jurisdiction  exists.    Belaga's notice  of  removal  did

mention 28 U.S.C.   1441   a statute which permits removal of any

suit that originally  could have been brought in  federal court.8

See, e.g., Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S.
                                                       

804, 808 (1986).  Thus, principles of equity, as well as the law,

compel us  to  explore whether  American's  declaratory  judgment

action  falls  within  the  federal  district  court's   original

jurisdiction.  We proceed to run that gauntlet.

                                A

                    

     7The parties' appellate filings ground  removal jurisdiction
solely in the officer removal statute.   In answer to our express
inquiry  anent  jurisdiction,  Belaga  replied  that  the  United
States, on her behalf, removed the action pursuant to 28 U.S.C.  
1442(a)(1) and contended  that such removal was proper.  American
averred that, apart from the officer removal statute, it was "not
aware of any other  basis for federal jurisdiction."   Nyacol, by
electing  not  to participate  in  this  appeal, has  effectively
consented to the appropriateness of a state forum.

     8The statute provides in pertinent part:

          Except as otherwise expressly provided by Act
          of Congress,  any civil  action brought  in a
          State court  of which the  district courts of
          the United States have original jurisdiction,
          may  be  removed  by  the  defendant  or  the
          defendants,  to  the  district court  of  the
          United  States for the  district and division
          embracing  the place  where  such  action  is
          pending.

28 U.S.C.   1441(a) (1988).

                                13

          In this instance, the presence of original jurisdiction

hinges  upon the existence vel  non of a  federal question,9 that
                                   

is,  the existence of an action  "arising under the Constitution,

laws,  or treaties  of  the United  States."   28  U.S.C.    1331

(1988).   Ordinarily, a claim arises under federal law within the

meaning  of section 1331 if a  federal cause of action appears on

the face of a well-pleaded  complaint.  See Gully v.  First Nat'l
                                                                 

Bank  in  Meridian,  299  U.S.  109,  113  (1936);  Louisville  &amp;
                                                                 

Nashville  R.R.  v.  Mottley, 211  U.S.  149,  152  (1908).   For
                            

purposes  of  determining  the  existence   of  federal  question

jurisdiction  in  a  declaratory  judgment  action, however,  the

Supreme Court directs  our attention  away from the  face of  the

complaint  and focuses  it instead  on the  law that  creates the

underlying cause of action:

          Where   the  complaint   in  an   action  for
          declaratory  judgment  seeks  in  essence  to
          assert   a   defense  to   an   impending  or
          threatened  state  court  action, it  is  the
          character  of the threatened  action, and not
          of  the defense, which will determine whether
          there is federal-question  jurisdiction . . .
          .

Public  Service Comm'n v. Wycoff  Co., 344 U.S.  237, 248 (1952);
                                     

see  also Franchise  Tax  Bd. v.  Construction Laborers  Vacation
                                                                 

Trust, 463 U.S. 1, 15-16 &amp; n.14 (1983).
     

          Here, American's declaratory judgment action represents

a mounted offensive on two related fronts:  the suit  is not only

                    

     9The  parties  to the  lawsuit  are not  of  totally diverse
citizenship  and,  apart  from   the  possibility  of  a  federal
question,  there  is no  other  arguable  foundation for  federal
jurisdiction.

                                14

an attempt to preempt impending actions by the insureds (seeking,

presumably, to secure a  defense against charges of environmental

harm  and to secure indemnification with  respect to loss, costs,

damages, and  expense associated  therewith), but  it is also  an

attempt  to foreclose  governmental  authorities from  trying  to

reach insurance  proceeds to satisfy  as-yet-unrealized judgments

under CERCLA.  Thus,  the underlying causes of  action, howsoever

visualized, are in the  nature of claims to enforce  an insurance

contract, the  adjudication of which will  require interpretation

of  various  policy provisions  and contract  terms.   A  suit is

customarily deemed to arise under the law that gives birth to the

cause of action.   See American Well Works Co.  v. Layne &amp; Bowler
                                                                 

Co., 241 U.S. 257, 260 (1916).  Applying that approach, this case
   

is  based  solely  upon,  and,  therefore,  arises  under,  state

law.10  See CPC  Int'l, Inc. v. Northbrook Excess  &amp; Surplus Ins.
                                                                 

Co.,  962  F.2d 77,  97-98 (1st  Cir. 1992)  (divining applicable
   

state law  to  interpret  a  pollution  exclusion  clause  in  an

insurance policy); A. Johnson &amp; Co. v. Aetna Cas. &amp; Sur. Co., 933
                                                            

F.2d 66,  70-74 (1st Cir. 1991)  (same); Ryan v. Royal  Ins. Co.,
                                                                

                    

     10We  note  in passing  that, were  American to  assert that
CERCLA preempts state insurance actions, such an assertion, while
mentioning   federal  law,  would   be  insufficient   to  confer
jurisdiction because federal law  would come into play only  as a
defense.    See Franchise  Tax Bd.,  463  U.S. at  13-14; Nashoba
                                                                 
Communications, Inc. v. Town  of Danvers, 893 F.2d 435,  440 (1st
                                        
Cir. 1990); see also Hudson Ins. Co. v. American Elec. Corp., 957
                                                            
F.2d  826, 830  n.4 (11th  Cir.), cert.  denied, 113  S.  Ct. 411
                                               
(1992).  We except, of course,  the rare case, discussed infra p.
                                                              
15-16, where federal law so completely  displaces state causes of
action in a particular area that all such claims are "necessarily
federal in character."  Metropolitan Life Ins. Co. v. Taylor, 481
                                                            
U.S. 58, 63-64 (1987).

                                15

916  F.2d 731, 734-35 (1st  Cir. 1990) (similar);  In re Acushnet
                                                                 

River &amp; New Bedford  Harbor, 725 F. Supp. 1264, 1278-81 (D. Mass.
                           

1989)  (certifying various  questions  regarding the  substantive

interpretation  of  an  insurance  policy  to  the  Massachusetts

Supreme Judicial Court in order to determine an insurer's duty to

cover cleanup  costs), aff'd in  part and rev'd in  part on other
                                                                 

grounds sub nom. Lumbermens  Mut. Cas. Co. v.  Belleville Indus.,
                                                                 

Inc., 938 F.2d 1423 (1st Cir. 1991), cert. denied, 112 S. Ct. 969
                                                 

(1992); see also  Hudson Ins.  Co. v. American  Elec. Corp.,  957
                                                           

F.2d 826, 828  (11th Cir.) (holding  that an insured's  potential

suit to recover insurance proceeds for its liability under CERCLA

arises   under   "the   applicable   state   law   governing  the

interpretation of insurance contracts"), cert. denied, 113 S. Ct.
                                                     

411 (1992).  Federal  jurisdiction cannot take root in  this arid

soil.11

                                B

          In  an abundance  of  caution, we  take one  additional

step.   There may  exist unusual  circumstances wherein  a state-

created cause of action can be deemed to arise under federal law.

For  example, when  a plaintiff's  state-created right  to relief

                    

     11We note that CERCLA itself does not provide a direct cause
of  action against a responsible  party's liability insurer.  See
                                                                 
Port  Allen Marine Servs., Inc. v.  Chotin, 765 F. Supp. 887, 889
                                          
(M.D.  La.  1991)  (dismissing claims  brought  directly  against
carrier  because CERCLA "does not create a direct right of action
against  [PRP's] insurers");  cf. 42  U.S.C.    9608(c) (allowing
                                 
direct action  against guarantors in limited  circumstances).  It
is,  therefore,  abundantly  clear  that  American's  declaratory
judgment complaint  anticipates future coercive actions  that not
only will  be entirely governed  by state law,  but also will  be
initiated only through state-created mechanisms.

                                16

"necessarily depends  on resolution of a  substantial question of

federal  law,"  Franchise Tax  Bd., 463  U.S.  at 28,  or  when a
                                  

parallel "federal  cause of  action completely pre-empts  a state

cause of action," id. at 24, the suit is considered a creature of
                     

federal law.  We test these waters.

           The  latter proposition  (complete preemption)  can be

summarily dismissed.   Structurally, CERCLA provides "no parallel

federal  cause of action  for the recovery  of insurance proceeds
                                                                 

for CERCLA-created liability."  Hudson, 957 F.2d at 830.  Rather,
                                      

its  provisions,  read objectively,  choreograph  a  pas de  deux
                                                                 

wherein CERCLA-driven suits to  collect insurance proceeds are to

be brought under state  law.  See,  e.g., 42 U.S.C.    9607(e)(1)
                                        

(preserving "any agreement to insure, hold harmless, or indemnify

a  party" for CERCLA  liability).  We  turn, then,  to the former

proposition (necessary dependence on a federal-law question).  

          Conceivably, American might argue that a suit to compel

it  to defend and/or indemnify  its insureds is  one that, though

created by  state law, necessarily  turns on federal  common law.

However, such an argument  amounts to a call for  the application

of a uniform federal rule of decision to govern interpretation of

an  insurance  policy's  scope   of  coverage  vis-a-vis   CERCLA

liability.  We  decline to heed  that call in  the face of  solid

precedent  pointing  in  the  opposite  direction.    The  massed

authority  for  treating insurance  coverage questions  in CERCLA

cases as peculiarly  matters of state law  pervades the courts of

appeals.   See, e.g., Northbrook,  962 F.2d at  79; Northern Ins.
                                                                 

                                17

Co. v. Aardvark Assocs., Inc., 942 F.2d 189, 192 (3d Cir.  1991);
                             

Liberty  Mut. Ins. Co. v.  Triangle Indus., Inc.,  957 F.2d 1153,
                                                

1157 (4th Cir.), cert. denied, 113 S. Ct. 78 (1992); FL Aerospace
                                                                 

v. Aetna Cas.  &amp; Sur. Co.,  897 F.2d 214,  219 (6th Cir.),  cert.
                                                                 

denied, 111 S. Ct. 284  (1990); Aetna Cas. &amp; Sur. Co.  v. General
                                                                 

Dynamics  Corp., 968  F.2d 707,  710 (8th Cir.  1992); Industrial
                                                                 

Indemnity Ins. Co. v. Crown Auto Dealerships, Inc., 935 F.2d 240,
                                                  

241 (11th  Cir. 1991).  State  courts chime in tune.   See, e.g.,
                                                                

Hazen Paper, 555  N.E.2d at 579; Boeing Co. v.  Aetna Cas. &amp; Sur.
                                                                 

Co.,  784 P.2d 507, 509  (Wash. 1990); Technicon  Elecs. Corp. v.
                                                              

American  Home  Assurance Co.,  542  N.E.2d  1048, 1050-51  (N.Y.
                             

1989).

          Case law aside, we  doubt that Congress intended CERCLA

to  be the springboard  for catapulting federal  courts into what

has historically been a state-law preserve.  Congress has made it

plain that  federal legislation  should rarely be  interpreted to

encroach  on  a state's  regulation  of  insurance.   See,  e.g.,
                                                                

McCarran-Ferguson Act,  15 U.S.C.    1012(b) (1988).   Nothing in

CERCLA  suggests  that Congress  intended  to  deviate from  this

regimen.  Indeed,  CERCLA's text not only  envisions the bringing

of  suits  under  state   law  but  specifically  mandates  their

resolution in accordance with that law.   See 42 U.S.C.   9672(a)
                                             

(stating  that  CERCLA's  insurance subchapter  "shall  [not]  be

construed to affect . . . the law governing the interpretation of

insurance  contracts of  any State").   Thus,  CERCLA effectively

rebuts the claim  that its drafters intended to  transform state-

                                18

law insurance actions into actions arising under federal law. 

          We  think  that  the   situation  at  hand  is  closely

analogous  to that which confronted  us in Royal  v. Leading Edge
                                                                 

Prods., Inc.,  833 F.2d 1  (1st Cir. 1987).   There, a  plaintiff
            

sought to recover for breach of  a royalty agreement related to a

copyrighted work.  In an effort to maintain federal jurisdiction,

he argued that his  case arose under the federal  copyright laws.

See id. at 2.  We disagreed, pointing out  that when an action is
       

brought  to enforce a royalty  contract the action  arises out of

the contract and not under the copyright statute, even though the

contract concerns a copyright.  See id. at 4.  By the same token,
                                       

an action brought to enforce the pollution-coverage provisions of

an  insurance policy  arises  out of  the  policy and  not  under

federal  environmental law,  even though  any  potential recovery

under  the  policy  will satisfy  a  CERCLA-generated  liability.

Accord Hudson, 957 F.2d at 829-30.  In this case, as in Royal, it
                                                             

would  be wrong to arrogate unto the federal courts "jurisdiction

over what  is  essentially a  garden-variety  contract  dispute."

Royal, 833 F.2d at 5.
     

          In fine, because the insurance dispute which American's

declaratory judgment  action anticipates  is a creature  of state

law  and  cannot be  said to  arise  under federal  law, original

federal  question  jurisdiction     and,  by  extension,  removal

jurisdiction under 28 U.S.C.   1441(a)   does not lie.

                                IV

          Since neither  section 1442 nor  section 1441  supports

                                19

the removal  of American's declaratory judgment  action, there is

simply no serviceable  hook on which federal  jurisdiction can be

hung.  We, therefore, go no further. Inasmuch  as the lower court

lacked subject  matter  jurisdiction, its  order  dismissing  the

action against EPA is null.  See Insurance Corp. of Ir., 456 U.S.
                                                       

at 701 ("The validity of an order of a federal court depends upon

that court's  having jurisdiction over . . . the subject matter .

.  . .").     We vacate  the dismissal order and  direct that the

district court reinstate  Belaga, in her official  capacity, as a

party and  thereafter return the improvidently  removed action to

the court from whence it emanated.12

          Vacated and remanded with directions.  No costs.
                                                         

                    

     12We take  no view of Belaga's claims of sovereign immunity,
non-justiciability, unripeness  and the  like.  We  are similarly
noncommittal  as  to  the  effect,  if  any,  of  remand  on  the
stipulation  entered into between American and  DEP.  Because the
federal  courts  lack  jurisdiction,  all such  matters  must  be
presented to, and resolved by, the state courts.

                                20
