Now that a major levee board’s lawsuit against as many as 88 energy-related companies has been thoroughly rejected even by a judge appointed by the famously anti-oil Barack Obama, the levee board ought to drop the suit it never should have filed in the first place.
As I wrote 10 months ago, the Southeast Louisiana Flood Protection Authority-East was not the right legal entity to file this suit on behalf of coastal wetlands restoration and would not properly be a beneficiary even if the suit had merit.
I wrote: “None of those bodies has responsibility for permitting or reviewing the pipelines and canals created by the energy companies, for which the plaintiffs want to recoup damage payments, or for penalizing transgressions related thereto. Those responsibilities belong to the state Department of Natural Resources and/or the U.S. Army Corps of Engineers.”
Now comes U.S. District Judge Nanette Jolivette Brown, in dismissing the suit, writing that “Plaintiff here has not demonstrated that it is the intended beneficiary of any duties imposed upon Defendants under the Rivers and Harbors Act, the Clean Water Act, or the Coastal Zone Management Act.” Judge Brown rejected what she described as the board’s attempt “to erase the legal distinction between intended and incidental beneficiaries.”
Furthermore, I wrote that “the pipelines themselves were legal, and the bodies (DNR and the Corps) charged with policing them never raised a peep. Since when does American law allow for retroactively making something illegal or legally actionable that was approved by government in the first place?” Wrote the judge: “The permits at issue … were granted by the United States to Defendants pursuant to federal law.”
Indeed, in 49 pages of exhaustive, but tightly reasoned, analysis, Brown decisively rejected each one of the levee board’s six major legal arguments, repeatedly writing that “Plaintiff has not and cannot state a viable claim” (or, elsewhere in the decision, words to that effect).
Note that this was not a decision against the board after a full court hearing; instead, it was a full “dismissal” of the lawsuit before even reaching trial. As the judge noted, such a dismissal is warranted only when the plaintiff fails even “to state a claim for relief that is plausible on its face.” In other words, the levee board’s suit was not just misguided, but not even plausible.
For the levee board, this wasn’t merely a loss; it was the lawsuit equivalent of Cumberland College’s 0-222 loss to Georgia Tech in a 1916 football game that the New York Times described 90 years later as “a blowout for the ages.”
Levee board attorneys say they may well appeal Judge Brown’s ruling to the U.S. 5th Circuit, but that would be foolish. As Louisianians well know, when you’ve suffered a blowout, it’s time to stop digging.
None of which isn’t to say that Louisiana’s coastal wetlands don’t need protection and restoration or that the cost of such efforts will be anything other than immense. But there’s a right way and a wrong way to try to find financing — and this radical lawsuit was clearly the wrong way.
Coastal wetlands restoration ought to be a public-policy priority. Its solutions should be developed through open debate and the processes of representative democracy, not through extravagant lawsuits.
As it is, some energy companies already were being cooperative with the excellent “Master Plan for a Sustainable Coast,” created by Louisiana’s state government for careful, achievable restoration efforts.
As it is now beyond argument that energy pipelines do indeed contribute to wetlands loss (although to a far lesser extent than the levee board’s suit would have them pay for), it also would make sense going forward for the state to apply a small (repeat: small) energy processing fee along lines first proposed by former Gov. Dave Treen some 35 years ago.
But as the Master Plan recognizes, there are plenty of causes of wetlands loss in addition to oil pipelines — and plenty of other solutions and sources thereof. If the levee board wisely decides not to appeal Brown’s ruling, Louisiana and the nation can more easily move forward with those other solutions.
New Orleans native Quin Hillyer is a contributing editor for National Review. You can follow him on Twitter, @QuinHillyer. His email address is firstname.lastname@example.org, and he blogs at blogs.theadvocate.com /quin-essential.