NEW ORLEANS, LA (AUGUST 10, 2020) —The U.S. Court of Appeals for the Fifth Circuit today issued a ruling in two coastal lawsuits, which challenge exploration and production activities conducted throughout Louisiana’s coast during the past century, affirming the district court decisions to remand the cases to state court.
Melissa Landry, speaking on behalf of the legal teams representing BP America Production Company, Chevron, ConocoPhillips, ExxonMobil Pipeline Company and Shell, released the following statement:
“Today’s ruling does nothing to strengthen the factually and legally meritless claims at issue in this litigation. In whichever forum these cases are ultimately considered, these flawed legal attacks do not advance meaningful solutions to restore our coast. Reaching back in time to sue for decades of federally authorized activities that were lawfully conducted and actively encouraged by these very same government plaintiffs is neither fair nor productive. Addressing the complex challenges of coastal land loss requires leadership, cooperation, and collaboration. These divisive lawsuits seek to rewrite history and undermine the efforts of hardworking men and women who help power our communities, support our economies, and drive investments in conservation and restoration projects across Louisiana’s working coast.”
The decision addresses two cases: Parish of Plaquemines v. Riverwood Production Company, et al. (“Riverwood”) and Parish of Cameron, et al. v. Auster Oil & Gas Incorporated, et al.(“Auster”).
A copy of the order can be found here.
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For Background Use Only:
Procedural Background: Beginning in 2013, private plaintiffs’ attorneys representing seven local governments (parish governments or district attorneys of a represented parish) filed forty-three coastal lawsuits, including the Riverwood and Auster cases, against more than 200 energy defendants in Louisiana state courts. The Louisiana Attorney General and Louisiana Department of Natural Resources have since intervened as additional plaintiffs in the coastal lawsuits, which generally allege that oil and gas defendants violated Louisiana’s State and Local Coastal Resources Management Act of 1978 (SLCRMA) by failing to obtain or failing to follow the terms of state-issued coastal permits.
The oil and gas defendants removed the cases to federal court in 2018 after a plaintiffs’ expert report revealed, for the first time, plaintiffs’ legal theories for attacking oil and gas activities undertaken before SLCRMA was enacted, when the activities were subject to extensive federal direction and control. Specifically, defendants argued (1) the plaintiffs’ challenge to federally directed wartime activities triggered federal officer jurisdiction, and (2) the plaintiffs’ claims regarding federally-regulated pre-1980 activities necessarily raise substantial federal questions.
The plaintiffs filed motions to return the cases to state court in 2018. Two federal court judges issued rulings that would have sent the cases back to state court. Today’s ruling by the Fifth Circuit upheld those decisions.
Today’s ruling stands in contrast to an earlier decision by the U.S. Fifth Circuit in another case against oil and gas defendants asserting claims for coastal land loss, Board of Commissioners of the Southeast Louisiana Flood Protection Authority-East v. Tennessee Gas Pipeline Co., which held that plaintiffs’ state law tort claims were properly adjudicated in federal court given the district court’s finding that “[w]hile plaintiff may not be expressly challenging a specific action of a federal agency, the breadth of plaintiff’s claims amounts to a collateral attack on an entire regulatory scheme.”
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Editor’s Note: In the Fifth Circuit, Riverwood is captioned, Parish of Plaquemines v. Chevron USA, Inc., Case No. 19-30492. Auster is captioned, Parish of Cameron v. BP America Production Co., et al., No. 19- 30829.
