Earlier this month, the United States Court of Appeals for the Fifth Circuit unanimously upheld a district court decision to dismiss the very first coastal lawsuit filed in Louisiana. The precedent-setting ruling leaves little doubt that the ongoing battle over coastal litigation is an ill-conceived distraction — an attempt to enrich trial lawyers, and not a legitimate solution for saving our state’s fragile coast.
Filed in 2013 by the Board of Commissioners of the Southeast Louisiana Flood Protection Authority, the suit sought billions of dollars from nearly 100 oil and gas companies for production activities dating back to the 1920s, seeking to hold the energy industry almost entirely responsible for Louisiana’s coastal land loss.
In 2015, U.S. District Judge Nannette Jolivette Brown described the case as “a collateral attack on an entire regulatory scheme . . . premised on the notion that [the scheme] provides inadequate protection.” In dismissing the headline-grabbing environmental lawsuit, Judge Brown ruled that federal and state law provided no avenue by which the levee board could successfully bring the case. The federal appeals court agreed.
The implications of these rulings are significant because the levee board lawsuit sparked a wave of “copy cat” litigation, which now includes five coastal parishes and the state of Louisiana as plaintiffs.
Since taking office last year, Gov. John Bel Edwards has also gotten personally involved in the litigation, promising to bring more lawsuits through the state on behalf of coastal parishes if they do not assert their own legal claims.
It is long past time to abandon this misguided path. Continuing to pursue these lawsuits only reaffirms Louisiana's reputation as a “judicial hellhole” and drives our businesses to invest in other states.
Over the last four years, the futile battle over coastal litigation in Louisiana has generated countless newspaper headlines and potentially staggering legal fees for the lawyers involved, but not much else. The time and money wasted on this distraction would have been better spent on constructive efforts aimed at protecting Louisiana communities from floods and restoring our coast.
In addition, the failure of the levee board lawsuit serves as a reminder that the use of contingency fee contracts to hire private lawyers in government litigation often does not serve the public’s best interest.
The egregious contingency fee contract used to retain private lawyers in the levee board lawsuit has been problematic from the very beginning. Under the provisions of the legal contract authorized by the levee board, the private lawyers have primary authority over the litigation, which is why the case has continued for years despite opposition from the Louisiana Legislature, the federal district court and many members of the levee board itself. Even worse, the absurd contingency fee contract the lawyers are working under was never publicly debated and should have never been approved.
In addition to setting bad public policy, it is also just a bad deal. If the levee board members or any other third party were to withdraw the suit or decline to appeal the ruling without agreement from the attorneys, taxpayers would be on the hook for all of the law firm's expenses and hourly legal fees. In February 2015, the attorney’s fees were estimated to total more than $5.5 million. Surely, those costs are much higher now.
How much more time and money must be spent before the levee board, the parishes and Gov. Edwards recognize that this approach may benefit the lawyers involved, but it will do nothing to help restore Louisiana’s coast?
Sharon Hewitt of Slidell is a state senator representing District 1.