Levee board argues in federal appeals court for revival of landmark lawsuit
March 3, 2016
Originally posted on The Lens on February 29th, 2016. See original post here.
Attorneys for the local levee authority Monday urged the U.S. 5th Circuit Court of Appeals to overturn a lower court ruling dismissing their suit against oil and gas companies for wetlands damage. They claimed the case never should have been taken out of state court to begin with.
Jim Swanson told the three-judge panel that 32 lawsuits on coastal damage brought by parishes and private landowners over the years had been remanded back to state courts by federal judges. Swanson represents the Southeast Louisiana Flood Protection Authority — East, which oversees the levees in Orleans, Jefferson and St. Bernard parishes.
Martin Stern, representing the oil companies, disagreed.
He argued District Judge Nannette Jolivette Brown got the legal logic right when she took the case from a state court two years ago and again last February when she granted their motion to dismiss the case on grounds the levee authority did not have legal standing on its claims under federal law.
No decision is expected for several months. If the authority win on the issue of jurisdiction argued today, the case would go back to state court.
Swanson said the authority might well choose to appeal an unfavorable ruling to the U.S. Supreme Court
“There are certain elements of this case that are the kinds of issues the Supreme Court would look at,” he said.
The authority filed the suit against more than 100 oil, gas and pipeline companies in July 2013, claiming its cost of building and maintaining levees has risen because the industry-related loss of wetlands has increased storm surge.
The action set off a political firestorm in a state where oil and gas have long been powerful players. But the court action so far has centered on points of legal procedure rather than the merits of the case.
Addressing reporters after the hearing, Robert Meadows, an attorney for Chevron, said the oil industry believes Louisiana land loss “has been around a long time and has got the full attention of Congress, the federal government and the state of Louisiana. And it’s not for a levee board to act on its own and impose its views on what should be done to restore the wetlands.”
When asked if the oil industry had harmed the state’s coast, he replied,
“I think the proper question is, ‘Have oil companies done anything wrong to cause coastal erosion?’ ”
Federal research says oil and gas activity is responsible for at least 36 percent of the 1,900 square miles of coastal wetlands the state has lost. Other studies put that figure as high as 60 percent.
While the authority’s suit lists hundreds of permit requirement such as backfilling canals that were not done by the companies, Meadows say that claim was not specific enough.
“They named virtually an entire industry and threw a blanket over it and said: You as a group should be responsible for restoring the wetlands,” he said. “They didn’t point to any single defendant and say what that defendant did wrong.
“They tried to throw a blanket of responsibility over an entire industry and that’s impermissible.”
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About Bob Marshall
Bob Marshall is a Pulitzer Prize-winning journalist who has covered the people, stories, and environmental issues of Louisiana’s wetlands for more than 35 years for The Times-Picayune as well as for national publications. He now writes for The Lens. An avid outdoorsman, he has spent much of his adult life in the marshes and swamps of South Louisiana, charting the demise of wetlands he calls “my office and playground.”