Legal watchdog group says pursuing flood protection lawsuit is futile

By Michael Carroll | Mar 11, 2016

NEW ORLEANS – As the U.S. 5th Circuit Court of Appeals last week heard arguments in a lawsuit over alleged wetlands damage to the Louisiana coast by oil and natural gas companies, a watchdog group described the legal effort by a state flood protection authority as futile and a waste of money.

“This futile legal battle has generated countless headlines and staggering legal fees for the lawyers but not much else," Melissa Landry, the executive director of Louisiana Lawsuit Abuse Watch, said in an email to the Louisiana Record. “It’s long past time for the lawyers to abandon this misguided lawsuit so the authority can get back to doing the work it was created to do.”

A three-member panel of the 5th Circuit heard arguments on March 9 about whether the case brought by the Southeast Louisiana Flood Protection Authority-East belonged in state or federal court. The agency originally filed the lawsuit in state court in 2013, but attorneys for the oil companies successfully moved the issue to federal court.

In February 2015, a U.S. district judge sided with the industry attorneys, who argued that the flood protection agency lacked jurisdiction to bring the claims and that the lawsuit raised issues related directly to federal laws. The federal laws mentioned include the Rivers and Harbors Act of 1899, the Clean Water Act and the Coastal Zone Management Act.

The flood control authority, however, appealed the decision to the 5th Circuit with the assistance of private law firms working on a contingency-fee agreement.

The authority argues that it is obligated under Louisiana law to create a “buffer zone” beyond the construction of levees to help absorb potential storm surges. Furthermore, the nearly 100 energy firms mentioned in the authority’s lawsuit are accused of degrading that buffer zone through drilling and dredging operations.

Landry criticized the authority for pursuing the case to the federal appeals court.

“The court’s previous ruling on this case was crystal clear, and it should have ended the debate over this controversial litigation once and for all,” she said in the email to the Record.

According to an Associated Press report, an attorney for the flood protection authority, James Swanson, argued before the panel of appellate judges that U.S. District Judge Nanette Jolivette Brown made “fundamental errors” in her previous ruling that threw out the case. In addition, he sought the appeals court’s help in moving the case back to state court.

The judges didn’t provide any real indication about how they might vote prior to adjourning the hearing, AP reported. A decision to affirm the district court ruling could lead the flood protection agency to appeal again, this time to the U.S. Supreme Court.

In their brief before the 5th Circuit, Martin Stern and other lawyers representing oil and gas companies emphasized the federal government had an exclusive role in awarding permits for canal dredging up until 1980 and that enforcing rules that balance the need for economic progress with protection of natural resources in U.S. coastal zones is a responsibility of the federal government.

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