The Louisiana Record Feb. 16, 2015, 4:26pm


NEW ORLEANS – A federal judge has dismissed a case brought on behalf of a local flood protection authority looking to pin billions of dollars worth of coastal land loss on oil and energy exploration activities.

U.S. District Judge Nannette Jolivette Brown ruled on Friday in favor of dismissing the landmark lawsuit first filed over a year and a half ago on behalf of the Southeast Louisiana Flood Protection Authority–East (SLPFA–E), a regional levee authority created in the aftermath of Hurricane Katrina. In the lawsuit SLPFA–E accused nearly 100 oil, pipeline and energy companies of contributing to coastal land loss, and thus furthering the exposure of the entirety of Southeast Louisiana to flooding, by the accumulative effect of dredging canals and drilling in coastal waters over the past century.

In a 49-page order dismissing the case, Brown stressed that the basis of the suit ran counter to state and federal law. Brown said that allowing such a case to proceed would upset the current regulatory scheme that is in place to oversee oil and energy exploration on the state’s coast as well as allow an entire industry to be punished by an entity bringing a claim despite being unable to produce evidence that it was directly harmed by any of alleged activities.

“Plaintiff states that neither adjacency nor ownership of property is necessary to establish a cause of action for public or private nuisance,” Brown wrote in her dismissal.

Brown further said that the claims made by SLPFA–E were unsubstantiated as insufficient evidence was provided linking the defendants’ activities to the alleged damages.

“If factual allegations are insufficient to raise a right to relief above the speculative level, or if it is apparent from the face of the complaint that there is an ‘insuperable’ bar to relief, the claim must be dismissed,” Brown wrote in her dismissal.

Following the ruling, opponents of the suit expressed satisfaction.

Melissa Landry, executive director of Louisiana Lawsuit Abuse Watch, said in a statement that the dismissal should bring a conclusive end to the argument.

“Judge Brown’s decision should end debate over the meritless SLFPAE lawsuit,” she said.

Landry added that SLPFA–E obviously erred in its judgement by bringing the lawsuit in the first place.

“The flood authority was created in 2006 in the aftermath of Hurricane Katrina for the ‘regional coordination of flood protection,’ not litigation. Obviously, they have strayed far from that mission, wasting precious time and taxpayer resources,” she said. “It is evident that this untenable legal strategy was never a plausible public policy initiative to save the coast. This futile legal battle has generated countless headlines and staggering legal fees for the lawyers, but not much else. The authority should abandon this misguided approach and get back to doing the work it was created to do.”

In a statement released after the dismissal, Don Briggs, president of the Louisiana Oil and Gas Association, said Brown’s decision was the right one.

“The dismissal of this egregious suit is obviously a step forward in the right direction. The industry has maintained throughout the process that the SLFPA-E was acting outside of its authority, and thankfully, Judge Brown agrees,” he said.

However, Briggs said he anticipates SLPFA–E and their attorney Gladstone Jones, of New Orleans-based law firm Jones, Swanson, Huddell & Garrison, will appeal Brown’s ruling.

“But let’s be clear, while the dismissal of the suit is welcome news, we assume an appeal will take place by the opposing attorneys. This same group of attorneys currently has other suits similar to this one in the courts as we speak,” he said.

Jones has a history of going after oil and energy companies and has made millions over the past decades filing “legacy lawsuits” targeting oil and energy companies on behalf of private landowners who claim pollution due to energy exploration activities. In fact, Jones is currently the counsel in a similar case brought against many of the same defendants by private property owners in coastal Jefferson and Plaquemines parishes.

However, the SLPFA–E lawsuit differed from Jones’ previous actions against oil and gas in that it was brought on behalf of a regional governmental oversight body on behalf of those residing with in it region who, as a flood protection authority were reasonably damaged, could not show themselves, which is apparently what got Brown’s attention.

The litigation contract brokered between SLPFA–E and Jones has been controversial from the beginning with many questioning the SLPFA–E’s legal standing to bring such a lawsuit and Louisiana Attorney General James “Buddy” Caldwell absorbing some of the criticism for signing off on SLPFA–E’s ability to hire outside counsel. A law was passed in last year’s state legislative session seeking to stop the lawsuit by disallowing such litigation brought on behalf of sub-governmental entities, but 19th Judicial District Court Judge Janice Clark recently ruled that law unconstitutional.

At one point Gov. Bobby Jindal appointed replacements to SLPFA–E’s Board of Commissioners in the hopes of gaining a majority vote that would kill the lawsuit, but he was ultimately unable to garner enough support overturn the vote.

The contract between SLPFA–E and Jones also includes a so-called “poison pill” provision that requires the flood protection authority to pay Jones for all litigation costs if it decides to drop the suit. Should an appeal be undertaken on the matter it is unclear how much, if any, of the increasing legal costs SLPFA–E may one day have to repay to Jones.

Case no. 2:13-cv-05410.

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