‘Land Loss’ Suits Against Energy Producers Are an Abuse of Courts

Louisiana is becoming a battleground for lawfare, with Gov. Jeff Landry (R) and the state attorney general’s office supporting the plaintiffs advancing creative lawsuits for “land loss”—cases that are pressing courts to accept tenuous theories of liability and taxing energy production.

Since 2013, 43 lawsuits brought by multiple cash-strapped Louisiana parishes against energy producers have lingered throughout the state. The suits claim energy production activities have caused coastal land loss and increased hurricane vulnerability.

The lawsuits seek damages and remediation funding, which could provide parishes an alternative funding source to their normal operating costs as political subdivisions situated in naturally dangerous places. One higher-profile case, Plaquemines Parish v. Rozel, just went to trial last month.

Among the activities alleged to have caused harm are dredging and maintaining a network of canals to access wells on coastal or marsh lands and to transport resources. Ironically, state and local governments are turning on the companies from whom they have benefited for decades by purchasing the energy that fuels their parishes.

These cases have a complex history, and there are myriad problems with the legal theories advanced. Chief among those problems is that the energy producers’ actions were reviewed, approved, and permitted by federal and state authorities.

Claiming retroactively that they should be liable for violating Louisiana coastal management laws while operating within the scope of state and federal permission and encouragement amounts to asking the courts to ignore due process and the rule of law.

When the defendants have moved for summary judgment seeking dismissal of the parishes’ claims in various cases, the parishes have opposed—to no surprise. But perhaps surprisingly, the Louisiana attorney general’s office has joined them, consistently supporting that opposition and consequently these meritless claims moving forward in the courts.

In a joint prosecution agreement signed in June 2016 with then-Attorney General Jeff Landry and plaintiffs attorney John Carmouche, one clause read: “No party to this Agreement shall at any time expressly or impliedly endorse any substantive defenses or exceptions raised by any defendant in any claims filed by any party to this Agreement under SLCRMA.”

Landry thus used his authority as the state’s chief legal officer seemingly to commit that it wouldn’t independently evaluate defenses as raised. Instead, the attorney general’s office agreed never to acknowledge merit to defenses even if they see merit in them. The current attorney general has continued this policy.

It’s problematic that the plaintiffs are unable to isolate causation and trace it to the energy producers’ activities. But it’s even more troubling that these energy production activities were encouraged and sometimes even initiated by local, state, and federal authorities in Louisiana.

For example, Louisiana energy sources vitally supported US military capabilities during World War II, especially in the provision of aviation gasoline. The energy producers conducting activities on Louisiana coastlands often were direct federal contractors with plans of operation sometimes dictated by federal government specifications.

From an economic perspective, investment in energy production in Louisiana already has been chilled by this disruptive legal climate and uncertainty whether energy producers can operate in Louisiana without facing novel liabilities. Unpredictable liability risks for lawful acts are inversely correlated with willingness to invest.

And as with many multibillion-dollar campaigns to make the standards of tort liability more plaintiff-friendly, these lawsuits are being bankrolled by partnering with high-stakes plaintiffs’ attorneys.

Lawfare is an apt frame to understand the strategy at play in Louisiana. The suits manipulate state statutory and common law to damage purportedly unpopular actors in society who are perceived to have deep pockets. As here, lawfare often aims to line the coffers of local government plaintiffs who claim their revenue is too low to do all the things their constituents desire.

The novel litigation theories are the weapons; the courts are the battleground. And when the courts allow weaponized new theories to take hold, they become the conciliating appeasers. This kind of lawfare often involves plaintiffs seeking to redistribute the wealth of the disfavored class to themselves as spoils of the litigation war.

The state and federal courts can intervene by recognizing the frivolity and danger in Louisiana’s land-loss lawfare. State and federal politicians also should use all legal means to stop this destructive abuse of the courts and reverse this threat to lawful, robust energy production vital to national energy security.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Donald J. Kochan is professor of law and executive director of the Law and Economics Center at George Mason University Antonin Scalia Law School.

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