Attorneys for a New Orleans-area levee board urged a panel of federal appeals court judges Monday to kick the board’s suit against dozens of oil and gas companies over coastal erosion back into state court and overturn a lower-court ruling that would spell the end to the case.
The hearing before the 5th U.S. Circuit Court of Appeals could determine the ultimate fate of the Southeast Louisiana Flood Protection Authority-East’s lawsuit, which has been wending its way through the court system since 2013.
Attorneys for the authority sought Monday to convince the judges that U.S. District Judge Nannette Jolivette Brown should have left the case in the state court system, where it was originally filed, and that she erred a year ago when she dismissed the suit on the basis that the levee board was not the proper entity to bring suit against the energy industry.
While the suit’s dismissal was the chief topic of the hearing, attorneys for both the authority and the nearly 90 companies being sued spent most of their time focused on the procedural issue of whether federal or state judges should have heard the case.
The suit was filed in state court, which is seen as a potentially friendly venue for the levee board, before the defendants successfully argued it should be heard by the federal bench. A decision to send it back could give the board’s attorneys a second chance to make their case.
It is not clear when the 5th Circuit panel, made up of Chief Judge Carl Stewart and judges Priscilla Owen and Gregg Costa, will issue a ruling on the appeal.
The Flood Protection Authority filed the suit in 2013, arguing that nearly a century of oil and gas exploration in Louisiana’s coastal wetlands had led to massive erosion, stripping away the marshes that in the past protected the area from storm surge during hurricanes. The suit, potentially worth billions of dollars, called on the courts to force the energy companies to pay to restore the wetlands or else compensate the board, which oversees flood defenses in the New Orleans area.
The suit came under attack immediately from then-Gov. Bobby Jindal, who sought unsuccessfully to end the case by replacing members of the Flood Protection Authority and supporting legislation that attempted to undermine the case.
The suit does reference federal law and frequently cites permits issued by the U.S. Army Corps of Engineers that allowed the construction of canals and wells. But Jim Swanson, an attorney for the authority, argued that the heart of the case lay in state law and the federal courts should not have taken up the issue.
“We can get all the way home under state law without getting into federal territory,” Swanson said.
Martin Stern, an attorney for ExxonMobil who spoke for the plaintiffs at Monday’s hearing, said the involvement of the Corps of Engineers, which issued the permits and would likely have to sign off on any work done to restore the damaged wetlands, argued in favor of the federal courts as the proper venue.
Stern also said the scope of the case meant it should be a federal issue.
“When a court is being asked to interpret what a federal contract or federal permit means, it can’t mean one thing in Louisiana and another in Mississippi,” Stern said.
Swanson and Stern also repeated arguments over the merits of the case that were made before the district court. Those largely revolve around whether a concept in state law known as “servitude of drainage” gives the levee board the ability to sue. That legal provision provides relief for those whose property is flooded by something someone else does on their own property.
The Flood Protection Authority’s attorneys argued that doctrine applies in this case because the levees overseen by the board must protect against increased flooding because of the erosion of the wetlands. Attorneys for the energy companies said the distance between the wetlands damage and the levees means it shouldn’t apply.
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