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Tuesday, October 22, 2019

Court to hear flood protection authority's appeal to revive oil company lawsuit on Feb. 29

By Vimbai Chikomo | Feb 7, 2016

The Southeast Louisiana Flood Protection Authority-East (SLFPA-E) hopes to have a court reverse the decision by a federal judge to dismiss its lawsuit against a slew of oil companies. 

A hearing has been set for Feb. 29 in the U.S. 5th Circuit Court of Appeals.

The local flood protection authority filed a lawsuit in 2013 blaming almost 100 oil companies for the deterioration of coastal wetlands that provide natural hurricane protection for New Orleans. SLFPA-E claimed the damage was linked to oil, gas and pipeline exploration, and attempted to force the companies to either repair the damage or pay damages to the authority, which would then use the money to repair the levee system, according to court documents.

U.S. District Judge Nannette Jolivette Brown dismissed the lawsuit, finding that there was insufficient evidence linking the defendants’ activities to the alleged damages and that SLFPA-E had no legal standing to bring the suit.

“I am in no way surprised by the appeal,” Melissa Landry, executive director of Louisiana Lawsuit Abuse Watch, told the Louisiana Record. “The trial lawyers driving this unprecedented lawsuit have refused to give up on their misguided pursuit in spite of ongoing opposition from the legislature, the former governor, the federal district court and many members of the board itself.”

The flood authority was established in 2006 by the state in the aftermath of Hurricane Katrina, and consists of two levee boards (SLFPA-E and SLFPA-W) overseeing flood protection in the Greater New Orleans area on the east and west banks of the Mississippi River. The boards replaced the Orleans Levee Board, which supervised the levee and floodwall system to prevent New Orleans from flooding.

Landry said she found it surprising that despite being denied at every turn, the flood authority continues to assert this lawsuit.

“The tragic irony, of course, is the continuation of this misguided litigation distracts from any meaningful discussion about how to further strengthen south Louisiana’s coast and better protect our communities,” Landry said.

Over the last three years, millions of dollars have been spent on both sides fighting against and defending the lawsuit, and countless hours have been spent debating the issue, Landry said. 

 “Wouldn’t that time and money have been better spent actually addressing the problem," she asked. 

Landry is not alone in her objection to SLFPA-E’s lawsuit. Former Gov. Bobby Jindal strongly disapproved of the lawsuit when it was filed, and released a statement stating that the lawsuit “boils down to trial lawyers who see dollar signs in their future and who are taking advantage of people who want to restore Louisiana’s coast.”

In June 2013, Jindal signed a bill, Act 544, that would kill the flood authority’s lawsuit by not allowing such lawsuits to be brought by sub-governmental entities. The law was later ruled unconstitutional, however, by 19th Judicial District Court Judge Janice Clark.

That October, Jindal appointed replacements to SLPFA–E’s Board of Commissioners hoping to gain a majority vote to stop the lawsuit, but due to lack of support, his efforts failed to overturn the vote.

Some of the criticism surrounding the lawsuit fell on former Attorney General James “Buddy” Caldwell for giving SLPFA-E the go-ahead to hire outside counsel.

Landry said the use of private lawyers to represent the public’s interest in government litigation has increased significantly in recent years, with a large number of outside law firms working on a contingency fee basis.

“This practice can create an improper incentive for profit-motivated attorneys to initiate and drive civil litigation under the guise of public interest,” Landry said.

SLFPA-E’s lawsuit and the contingency fee contract used to retain lawyers highlighted this problematic issue, Landry said.

“This shocking arrangement was never publicly debated, and it includes a 'poison pill' provision that could leave taxpayers on the hook for millions of dollars in legal fees,” Landry said. “What’s worse is that the previous ruling by U.S. District Judge Nannette Jolivette Brown makes it perfectly clear that this is not a credible legal strategy or a well-informed public policy initiative.”

Two of the smaller companies named as defendants in the lawsuit, White Oak Operating Co. LLC and Chroma Operating Inc., reportedly settled with SLFPA-E for $50,000 each.

The SLFPA-E is represented by Jones, Swanson, Huddell, and Garrison, LLC; Fishman Haygood Phelps Walmsley Willis & Swanson LLP; and Veron, Bice, Palermo & Wilson LLC.

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