A lawsuit brought in 2013 by the Southeast Louisiana Flood Protection Authority-East has been dismissed by a federal judge who found that the Authority had failed to support its claims against dozens of oil, gas and pipeline companies. The Authority sued the companies for damages, arguing that their oil and gas exploration activities had damaged wetland areas, making the coast more vulnerable to flooding during hurricane events such as Hurricane Katrina in 2005.
The Southeast Louisiana Flood Protection Authority-East (Authority) is one of two levee authorities that service the metropolitan New Orleans area. The authorities are responsible for protecting residents, businesses and properties from flooding, including adopting rules and regulations for carrying into effect a comprehensive levee system (which includes levees, floodwalls, drainage structures and floodgates).
In July 2013, the Authority filed suit against 97 oil, gas and pipeline companies on the theory that their exploratory activities over time have damaged wetlands, which in turn has left New Orleans vulnerable to catastrophic flooding. Specifically, the suit alleges that the dredging of canals by the oil and gas companies allowed for destruction of wetlands that protect the New Orleans area from flood damages, and that those damages complicated and increased the cost of management of the levee system.
The lawsuit demanded that the companies immediately begin filling in canals and restoring wetlands, and to compensate the Authority for past damages. The primary arguments made in the lawsuit are that:
(1) the oil and gas activities were conducted under permits that required restoration of dredged canals through the state’s wetlands, which have provided pathways for salt water from the Gulf of Mexico to kill off fresh water marshes;
(2) the Rivers and Harbors Act of 1899 prohibits impairing the effectiveness of levees, and increasing storm surge by eliminating wetlands makes impairs the levees; and
(3) under a “servitude of drainage” law, an individual cannot take actions on his or her own property that sends water onto someone else’s property, and this is what the oil and gas projects have done by increasing storm surge onto the levee system.
The Authority’s legal action didn’t go over very well politically. Both Louisiana Governor Bobby Jindal and the state’s Coastal Protection and Restoration Authority (CPRA) declared their opposition to the suit based on its potential to interfere with the state’s own restoration and hurricane protection plans and with the state’s own strategy of requesting from Congress a greater share of offshore oil revenue. The CPRA acts as the levee authority for coastal levee systems in Louisiana and sponsors Army Corps of Engineers levee projects on behalf of the state, making it ultimately responsible for paying the local share of any federal levee construction costs. Gov. Jindal even replaced several members of the East Bank levee authority who had supported the suit. The other authority responsible for levee maintenance in New Orleans, the West Bank Authority, distanced itself from the suit by publicly stating that the East Bank Authority had acted alone.
Dismissal of the Suit
U.S. District Judge Nanette Oliver Brown dismissed the suit on February 17, 2015, agreeing with the defendant group that the Authority had failed to state a claim on all six of its legal theories to hold the defendants responsible for increased vulnerability to flooding. This may settle the question of ultimate responsibility for the area’s vulnerability to catastrophic flooding – for now – but it’s unlikely that legal wrangling over the damages suffered by New Orleans in Hurricane Katrina will end anytime soon.