Deep pocket justice. That seems to be the flawed philosophy behind the ongoing legal attack personal injury attorneys are waging against Louisiana’s oil and gas industry.
They cloak their campaign in green and purport to carry the banner of environmental justice, but make no mistake: this legal scheme is all about targeting deep pockets. It is not about remedying past wrongs, and certainly not about justice.
For proof, we need to look no further than the lawsuit filed by trial lawyers on behalf of the Southeast Louisiana Flood Protection Authority-East in 2013, which has been repeatedly rejected by our courts. The suit sought to cast blame on the energy industry for Louisiana’s coastal land loss problems simply because the levee board wanted more money for flood protection projects and the industry was perceived as most able to pay.
The levee board’s flawed legal filing asserted a smorgasbord of legal theories apparently intended to bypass the inconvenient need to show that the defendants in the case actually caused the damage the lawsuit supposedly sought to remedy.
Regardless of fault or actual liability, the suit seemingly sought to extract as much money as possible from “deep pockets” to pay for flood projects and coastal restoration (and a boat-load of legal fees).
Ed Richards, a professor of public health law at the Louisiana State University Law Center and an expert on flood-related litigation, described the suit as “the latest chapter in the Louisiana entitlements saga,” referring to a series of ambitious environmental lawsuits filed by personal injury attorneys against “deep pocket” entities since Hurricane Katrina.
The problem with the plaintiff lawyers’ strategy, of course, is the law. That’s why the courts have consistently ruled against them.
In February 2015, a federal district court judge dismissed the suit, finding that neither federal nor state law provide an avenue by which the levee board could successfully pursue its claims. U.S. District Judge Nannette Jolivette Brown even described the case as “a collateral attack on an entire regulatory scheme,” essentially exposing the suit as a poorly-disguised attempt to subvert existing legal and regulatory processes to make money.
In March 2017, a three-judge panel of the United States Court of Appeals for the Fifth Circuit unanimously upheld Judge Brown’s decision. In April 2017, the Fifth Circuit rejected the levee board lawyers’ request for an en banc rehearing. This latest denial most likely signals that the levee board has reached the end of this dead-end road.
Unfortunately, it seems some state and local officials still aren’t getting the message. Just last month, Governor John Bel Edwards signaled that he’s planning to file more lawsuits against the energy industry on behalf of the state, promising, “We’re going to be active litigants going forward.”
Meanwhile, St. John the Baptist Parish District Attorney Bridget Dinvaut hired a team of private lawyers and filed suit on behalf of the parish without ever seeking approval from the local council (much less voters). These actions will only move us further in the wrong direction.
If there is anything to be learned from the colossal waste of time and money that was poured into the levee board lawsuit it should be that this strategy of pursuing “deep pocket” justice may serve the lawyers, but it does not serve Louisiana.
Melissa Landry is executive director of the non-partisan, grassroots legal watchdog group Louisiana Lawsuit Abuse Watch. For more information, email firstname.lastname@example.org or visit LLAW.org.