On February 13, 2015, the U.S. District Court for the Eastern District of Louisiana dismissed a major lawsuit that was filed by the Board of Commissioners of the Southeast Louisiana Flood Protection Authority–representing a number of local South Louisiana levee boards–against 88 oil and gas companies operating in South Louisiana for many years. The case is Board of Commissioners of the Southeast Louisiana Flood Protection Authority-East, et al., v. Tennessee Gas Pipeline Company, LLC.
The complaint, originally filed in state court and then removed to the federal courts, alleged that the defendants’ operations in the areas subject to the jurisdiction of the levee boards–in particular the construction and operation of canals facilitating their enterprises–caused significant coastal erosion which in turn caused the destruction of thousands of acres of coastal lands that had protected South Louisiana by serving as a buffer against extreme weather conditions. In addition to the construction and operation of the canal system by the defendants, the plaintiffs identified a number of other oil and gas operations and activities that drastically affected the “natural hydrological pattern and processes of the coastal lands”. The plaintiffs pled six causes of action based on the unique features of Louisiana law as well as federal law: negligence; strict liability; natural servitude of drain; public nuisance; private nuisance; and breach of contract–third party beneficiary.
The District Court, in a long and very interesting opinion responding to a plethora of cogent and well-argued pleadings by both parties, dismissed this lawsuit. The District Court held: (a) that none of the federal permitting statutes governing the lawsuit–the Rivers and Harbors Act, the Clean Water Act of the Coastal Zone Management Act-imposed a standard of care upon the defendants for the benefit of the plaintiff levee boards, and consequently the plaintiffs had not stated a viable claim for negligence; (b) the plaintiffs, seeking injunctive relief and damages from the defendants, under a theory of strict liability under Louisiana law, did not state a viable claim for strict liability; (c) the plaintiffs did not and cannot state a viable claim under Louisiana law for “natural servitude of drain”; (d) the plaintiffs’ claims based on allegations of public and private nuisance for public and private nuisance were dismissed because they did not satisfy the requirements of Louisiana law; and (e) the plaintiffs cannot succeed on a claim that the levee boards are the intended third party beneficiary of the many federal operating permits granted to the defendants over the years.