No Rehearing for Louisiana Coastal Land Loss Suit

NEW ORLEANS (CN) – The oil and gas industry in Louisiana enjoyed a victory this week when a federal appeals court declined rehearing a case over whether the industry should pay for the coastal land loss mineral extraction has caused.

Channels dug by the oil and gas industry that make coastal drilling possible have damaged the wetlands, along with other factors, so that coastal Louisiana is literally melting into the sea. Coastal lands are essential to buffering the state against the impact of hurricanes.

A lawsuit filed by the Southeast Louisiana Flood Protection Authority-East in 2013 attempted to make nearly 90 oil and gas companies, including Shell, Exxon and BP pay billions of dollars for the damages they have caused. The money would be used on projects to help replace what has been lost. Without the money, the state is short billions of dollars.

But a federal judge in 2015 tossed the suit, and the Fifth Circuit in March upheld the judge’s decision. Now the same appeals court this week said it will not hold a re-hearing.

“What remains of Louisiana is slipping into the Gulf of Mexico through a combination of direct removal, erosion and submergence, sinking at the fastest rate of any coastal landscape on the planet,” the 2013 lawsuit said.

For the past 50 years, as a way of locating and drilling for oil along Louisiana’s sensitive coast, oil and gas companies have created a massive network of canals that wind through millions of acres of swampland. Overtime, the canals necessarily widen, and the result is a buildup of sediment in unintended areas and a greater instance of saltwater intrusion into fragile freshwater ecosystems, causing massive erosion.

Supporters of the flood authority lawsuit said it was essential to hold oil and gas companies accountable for the millions of acres of lost land, and that doing so would be a way to fund coastal restoration.

But U.S. District Judge Nanette Jolivette Brown sided with the oil and gas industry in her 2015 ruling, saying the industry is under no obligation to repair the damage it has caused to the wetlands.

Judge Brown said in her ruling that the levee board would have to prove that the industry has any legal obligation toward conservations, and her ruling concluded it does not.

In its lawsuit, the flood authority named a few specific acts under which it alleged the oil industry was barred from harm the environment, for instance under the Clean Water Act, but Judge Brown disagreed that the act is in place to either protect the wetlands or to prevent catastrophic storm damages.

In March, a three-judge Fifth Circuit panel upheld Brown’s decision, agreeing with the judge that the levee district failed to provide evidence that the oil and gas industry was even under any obligation to repair the damage caused by their operations, including the refilling of canals.

The decision was lauded by the oil and gas industry. Several organizations that represent the defendants said the lawsuit was thought up in the first place by money-hungry trial attorneys.

The judges found that Louisiana law does not require oil companies to restore land to its “natural state,” and they agreed with Judge Brown that the requirements of the federal Rivers and Harbors Act of 1899, Clean Water Act and Coastal Zone Management Act do not extend to the protection of the levee authority.

“The District Court was correct that neither federal law nor Louisiana law creates a duty that binds defendants to protect the board from increased flood protection costs that arise out of the coastal erosion allegedly caused by defendants’ dreading activities,” the decision said.

Attorneys representing the flood board did not reply to a request for comment on whether the case might be taken before the Supreme Court.

The levee board said in its lawsuit that because of the loss of coastal land that would normally act as a buffer against hurricanes at the hands of the oil industry, the levee board has had to devote more time and money to protecting the levees.

Some coastal parishes have brought coastal damages lawsuits in state courts on different legal standings by also saying the oil and gas industry has caused erosion and contamination.

Gov. John Bel Edwards, a democrat, gave coastal parishes until the end of September 2016 to file lawsuits alleging state law violations by the oil industry, saying otherwise the state would file the lawsuits itself. Edwards ran for governor last year on the promise he would hold the oil and gas industry accountable for the damages it has caused.

That hasn’t been exactly what has taken place, however, as Louisiana Attorney General Jeff Landry, a republican, is against taking the oil and gas industry to court and has fought Edwards’ attempts to litigate, saying lawsuits are frivolous, time consuming and disproportionately benefit trial lawyers who are only in it for the money.

Louisiana loses as football field of land every hour on average.

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