LEVEE BOARD CONSIDERING APPEAL OF RULING DISMISSING LAWSUIT AGAINST OIL AND GAS AND ENERGY COMPANIES

By TONI ELLINGTON

Members of the Southeast Louisiana Flood Protection Authority – East board are considering whether to appeal the decision of the U.S. District Court for the Eastern District of Louisiana to dismiss the Levee Authority’s claims against oil and gas and energy companies for damage to Louisiana’s wetlands and coastal areas.  On February 19, 2015, the board for the Levee Authority debated the issue of an appeal but did not vote on the matter.  There are four opponents to the lawsuit out of nine board members.  The opponents to the lawsuit were appointed by Governor Bobby Jindal.

In the ruling, U.S. District Judge Nannette Jolivette Brown found that the Levee Authority had not stated a claim against the oil and gas and energy defendants, because the Levee Authority’s position as a third party to federal and state permits issued to the defendants to dredge through the wetlands and coastal lands was not established.  Accordingly, the court ruled that the Levee Authority lacked standing to bring a financial claim.

Attorneys for the Levee Authority expressed confidence that the Fifth Circuit Court of Appeals would reverse the ruling of the Eastern District of Louisiana.  The Levee Authority has 30 days in which to file its appeal.

As previously reported in this blog, the Southeast Louisiana Flood Protection Authority-East filed suit in 2013, seeking billions of dollars in damages from more than 80 oil and gas and energy industry defendants for coastal erosion and damage to Louisiana’s wetlands and coastal lands. The Levee Authority claims that oil, gas, and pipeline companies cut at least 10,000 miles of oil and gas canals and pipelines into Louisiana wetlands and coastal lands, and that according to terms of their permits, the companies must repair the damaged lands.

The Louisiana legislature passed Act 544 in the 2014 session to block the lawsuit.  Governor Jindal also replaced Levee Authority board members who supported the lawsuit with appointees who would oppose the lawsuit.

On October 31, 2014, Judge Janice Clark of the 19th Judicial District Court in Baton Rouge, Louisiana, ruled that Louisiana Act 544 is unconstitutional because it sought to dismiss the Levee Authority’s lawsuit after the fact in violation of the state’s separation of powers clause.  This ruling is on appeal to the Louisiana Supreme Court.

For a copy of the court’s order dismissing the lawsuit, see Case No. 2:13-cv-05410, Doc. #529, filed on February 13, 2015, found on the federal court’s PACER system.  For more information, contact Toni Ellington at (504) 599-8500.