Right out of the gate, a state senator has put a controversial lawsuit against scores of oil and gas companies back on the Legislature’s radar for the upcoming session, targeting an argument used in that case in the first bill filed in the upper chamber for the 2015 session.
Senate Bill 1 is primarily aimed at preventing a new class of lawsuits that could affect property owners, said Sen. Bret Allain, who authored the legislation. But the precedent he is trying to prevent is a part of the Southeast Louisiana Flood Protection Authority-East’s suit accusing oil and gas companies of billions of dollars of damage to coastal wetlands in the New Orleans area.
Allain, who sponsored a measure last year aimed at killing the lawsuit, said the new bill is not “directly aimed” at the Flood Protection Authority’s suit. But the Franklin Republican said he wants to prevent lawsuits based on the specific way the authority is using a part of the state’s civil code, which he said could expand the risk of lawsuits against landowners.
“The danger we thought that it posed for future lawsuits was more than we could stand by and let it idly happen,” Allain said.
Gladstone Jones, the lead attorney on the Flood Protection Authority’s lawsuit, accused Allain of attempting to “do what he failed to do last year” — stop the suit from moving forward — and said there are more important issues for the Legislature to focus on.
“With Louisiana’s budget crumbling, the very first bill in the Louisiana Senate is going to change the rules for oil companies to keep them from having to fix what they broke,” Jones said.
The bill itself would make minor and technical changes to the civil code, adding 11 words to the section dealing with what is known as “servitude of drainage.”
Servitude of drainage imposes certain responsibilities on properties that drain into one another. Essentially, property owners downstream are prohibited from blocking the water from coming onto their property, while those upstream are preventing from doing anything that would lead to a higher flow or flooding on the nearby properties.
The authority’s lawsuit brings up servitude of drainage as one of several, parallel arguments for holding oil and gas companies responsible for damage to the wetlands. The suit’s claim is that the elimination of the marshes allowed more water to flow onto the properties and levees the marshes had surrounded, violating those requirements.
But Allain said that’s a backward reading of the code, which was designed with water flowing from higher elevations to lower ones in mind. He said that could open up new reasons for suits against landowners.
“Although the SLFPA folks did make an argument where the true meaning of servitude of drainage is an inconvenient truth for them, this is not aimed at SLFPA,” Allain said. “This is aimed at preventing new causes of action against landowners in the future.”
Those concerns are shared by the Louisiana Landowners Association, Allain said. That group, which represents large landowners in the state, has fought against expropriation of land. The association has opposed oil and gas companies over so-called “legacy lawsuits” over contaminated properties, though it also has pushed back against the expansion of the state’s official coastal zone, which imparts additional protections to coastal land.
The suit is working its way through two separate court cases. The suit itself is in federal court, where U.S. District Judge Nannette Jolivette Brown is weighing the defendants’ arguments to have the case dismissed.
Then there’s a state court case over whether the authority had the right to bring the suit. That case, in which 24th Judicial District Court Judge Janice Clark in Baton Rouge ruled that the 2014 law aimed at killing the suit did not apply to the authority and is unconstitutional, is being appealed to the state Supreme Court.
If Allain’s bill passes, it’s not clear whether it would actually prevent the levee authority from pursuing its servitude of drainage claims. And even if that part of the suit were invalidated, arguments that the shrinking of the marshland had impaired the effectiveness of the levee system and that oil and gas companies had failed to live up to the terms of their permits could still move forward.
Jones declined to speculate on what the passage of the bill might mean for the lawsuit.
“If there’s one thing I know about them, they’re very tenacious and very bright guys. They’ll find a way around it,” Allain said. “But I’m not going to sit idly by while people implicate the rights of landowners.”
Follow Jeff Adelson on Twitter, @jadelson.