Louisiana Legislature Passes Bill to Retroactively Prohibit Coastal Erosion Lawsuit

On July 24, 2013, the Southeast Louisiana Flood Protection Authority – East filed a Petition in state court in the Civil District Court for the Parish of Orleans against 97 energy company defendants, claiming hundreds of thousands of acres of the coastal lands that once protected south Louisiana are now gone as a result of oil and gas industry activities. The suit proclaimed, unless immediate action is taken to reverse the land losses and restore the region's natural defense, many of Louisiana's coastal communities will “vanish into the sea.” The suit demands the defendants repair the damage done from decades of digging, dredging and drilling in the coastal marshes that form the New Orleans region’s first line of defense against hurricanes, pay damages and fund future storm surge protection projects.

Louisiana’s Governor, Bobby Jindal, immediately expressed outrage over the lawsuit, threatening to replace the Board’s members who had voted to file it. Indeed, in 2013, Jindal replaced 4 of the Board’s members whose terms were up. Additional hurdles were presented to halt the progress of the lawsuit when Louisiana’s general legislative session began March 10, 2014.

Several bills were proposed during the legislative session which ended on June 2, 2014. Senate Bill 469 was ultimately passed by both chambers of the Louisiana legislature and was signed into law by Governor Jindal on June 6, 2014, becoming Act No. 544. Act 544 prohibits state governmental entities, including the Southeast Louisiana Flood Protection Authority, from filing lawsuits to enforce environmental protection laws by declaring such actions as officially “contrary to the public policy of this state.” Violations of the Coastal Zone Management Program, the Clean Water Act, or the River and Harbors Act would be actionable only by the Attorney General, the Department of Natural Resources or the Coastal Protection and Restoration Authority.

Act 544 includes an express provision noting the law is applicable to all claims existing or actions pending on its effective date and to ll claims arising or actions filed on or after that date. Thus, commentators agreed passage of the bill would essentially end the Southeast Louisiana Flood Litigation, though a constitutional challenge to the new law is expected. On June 19, 2014, the Southeast Louisiana Flood Protection Authority held a vote on a motion to dismiss the coastal erosion suit. The vote resulted in a tie, so the motion to dismiss the suit failed, such that it appears the suit will continue until the law is found constitutional or until Governor Jindal is able to replace more board members to reach a majority vote to dismiss the suit. Additionally, the possibility remains that even if the suit by the Flood Authority is dismissed, Attorney General Buddy Caldwell, who consented to the filing of the suit by the Flood Authority and who urged Governor Jindal to veto Act 544, could decide to take up the claim, which would be permissible under Act 544.