Law Professors from Every Coast Ask SCOTUS to Weigh in on Louisiana Coastal Wetlands Case

by Matt Shudtz

August 23, 2017

Last week, more than two dozen law professors from around the country – many of them CPR Member Scholars – filed a friend-of-the-court brief with the U.S. Supreme Court, urging a fresh look at a lower court decision with sweeping implications for the balance of power between states and the federal government. The issue is vital to Louisiana because it affects whether oil and gas companies can be held liable for decades of damage they have done to the state's coastal wetlands.

The case is ambitious, to say the least. The Southeast Louisiana Flood Protection Authority—East is small government agency that manages a complex system of levees, floodwalls, gates, pumps, retention systems, and more to keep Louisiana's residents safe from flooding. The levee authority does this even while sea levels rise and the spongy wetlands that might aid its work disappear at a rate measured in acres per hour.

In the lawsuit, the levee authority is up against 87 oil and gas companies that have contributed significantly to the degradation and loss of those coastal wetlands. Estimates vary, but the industry itself admits that its 50,000 wells, 10,000 miles of pipelines, and vast network of canals caused more than a third of the coastal wetlands loss that has to be seen to be truly appreciated. ProPublica illustrates it best.

Map courtesy of the U.S. Geological Survey and the National Oceanic and Atmospheric Administration

The courtroom is just one front in the battle between the scrappy levee authority and multinational corporate giants. Along the way, former Louisiana Governor Bobby Jindal did his best to derail the case, too. He claimed that the levee authority lacks the power to bring the case and he appointed a new board president he hoped would disrupt progress. Fortunately, these political and administrative machinations were unsuccessful and the case is proceeding because the issue of corporate accountability that is at the heart of the suit has implications well beyond the Gulf Coast.

But first, we need to address the question presented in the law professors' brief. Put simply, shouldn't state courts be the ones to determine whether oil and gas companies are liable under state law for destroying coastal wetlands?

The Louisiana constitution established a public trust doctrine, which imposes a duty on all state agencies and officials to protect the natural resources that the state holds in trust for its residents. In 2004, the Louisiana Supreme Court said that disappearing coastal lands are precisely the kind of resources that deserve protection under this doctrine, noting their vital contributions to protecting millions of Louisiana residents' lives, welfare, property, and businesses. That decision set the stage for this case, in which the levee board has sued the oil and gas companies for negligence, nuisance, breach of contract, and other state-law claims, arguing that the Louisiana public trust doctrine demands it do so.

To support its claims, the levee board has alleged the companies engaged in many violations of federal law. The oil and gas companies, looking for a sympathetic court, have argued that those allegations of federal statutory transgressions make the case better suited for a federal judge. Nannette Jolivette Brown of the U.S. District Court for the Eastern District of Louisiana agreed. And so did the Fifth Circuit Court of Appeals when the levee board appealed the decision.

Now the levee board is asking the Supreme Court to weigh in, and the law professors who have signed the brief are encouraging it to do so. They argue that the lower courts misinterpreted Supreme Court precedent on the balance of state and federal judicial responsibilities and note that leaving the lower courts' decisions in place will prevent states from relying on their own laws to protect their important natural resources.

For more, check out the amicus brief here. To learn more about the public trust doctrine, visit our webpage on the subject.

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Also from Matt Shudtz

Matthew Shudtz, J.D., is the Executive Director of the Center for Progressive Reform. He joined CPR in 2006 as policy analyst, after graduating law school with a certificate in environmental law.

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