Levee Authority Files Suit, Alleges Oil and Gas Companies Contribute to Louisiana’s Diminishing Wetlands

On July 24, 2013, the Southeast Louisiana Flood Protection Authority-East (Authority) filed suit against 97 oil, gas, and pipeline companies for their alleged contribution to the continuing diminution of Louisiana’s wetlands. This historic lawsuit demands that these companies immediately restore damage to the wetlands, arguing that the Authority’s flood protection system formed by the wetlands “guards millions of people and billions of dollars’ worth of property in south Louisiana from destructive floodwaters.” A 1996 study concluded that the energy industry was both directly and indirectly responsible for 36 percent of wetland loss in Southeastern Louisiana, and more recent studies have apportioned even higher percentages of the loss to the oil and gas industry. This, together with the Authority’s concern that they wouldn’t have adequate resources to operate and maintain the levees when they were handed over to local levee district by the Army Corps of Engineers, prompted the Authority to file suit.

Since its filing, this lawsuit has polarized Louisianans. Hours after suit was initially filed, Governor Bobby Jindal issued a response claiming that the Authority didn’t have the right to file suit without his approval. Governor Jindal also attacked the lawsuit as a “hijacking” of the issue by trial lawyers “who see dollar signs in their future and who are taking advantage of people who want to restore Louisiana’s coast.” On the other side of the debate, Democratic lawmakers seemed to back the lawsuit, finding Governor Jindal’s concerns unfounded and adverse to Louisiana’s legitimate interest in being a steward of its local environment.

In response to this lawsuit, the Louisiana legislature passed Act 544 which expressly strips State and local government entities of any “right or cause of action arising from any activity subject to permitting” under certain Louisiana and Federal law. That is, Act 544 would preclude the Authority’s suit against the oil companies’ activities, at least under the auspices of a local government entity. In written motions, the Authority seeks to have Act 544 declared unconstitutional. This lawsuit has since been removed to Federal Court in New Orleans, where the next ruling will determine whether Act 544 applies to the levee Authority.

While this lawsuit has been dominated by pre-trial, procedural maneuvering by both litigants, it raises important concerns for all Louisianans. Our coastline is rapidly dwindling, with predictive models showing Louisiana’s coast continually disappearing into the Gulf. While a meaningful portion of this phenomenon is caused by natural weather events and cycles (subsidence, for instance), an even larger portion is directly traceable to the energy industry’s activities and blatant circumvention of federal and state regulations.