Ground zero for climate change and rising sea levels in the United States is not a status to which any state aspires. Florida distastefully remembers 2005 when 4 hurricanes – Charley, Frances, Ivan, and Jeanne - roared ashore, all within six weeks. Delaware worries that 8-11% of the state will be submerged by 2100. Today we learned that Louisiana’s concerns over rising sea levels and hurricanes have resulted in an enormous lawsuit, Board of Commissioners v. Tennessee Gas Pipeline Co LLC, against 100 oil and gas companies based on their activities in Louisiana’s coastal lands over the last century, and the lands' ongoing demise. “Unless immediate action is taken to reverse these losses and restore the region’s natural defense, many of Louisiana’s coastal communities will vanish into the sea.“ Complaint at 2.
The plaintiff, the Southeast Louisiana Flood Protection Authority – East, is a governmental entity whose ”mission is to ensure the physical and operational integrity of the regional flood risk management system.” To accomplish that end, it concluded that in order for Louisiana's coastal communities to survive into the next century it needed to restore and rejuvenate Louisiana’s coastal lands. Its complaint explains how the system is supposed to work:
5.2 Coastal lands, including wetlands and marshes, are an integral natural complement to the Authority’s man-made flood protection system. 5.2.1. Coastal lands are the first line of defense for south Louisiana’s communities against the destructive force of hurricanes. 5.2.2. Those lands form a buffer that reduces the height and energy of hurricane storm surge and waves, thereby aiding the Authority in its mission to protect south Louisiana. 5.2.3. Hurricanes lose intensity as they travel over land. Hence, the more land that a given hurricane must traverse before reaching Louisiana’s coastal cities, the weaker that hurricane’s impact on those communities, and concomitantly, the more effective the levee system.
Notwithstanding the coastal lands’ importance, they had been (allegedly) substantially degraded by the activities of oil and gas companies. These companies had built a network of canals that was alleged to continue "to introduce increasingly larger volumes of damaging saltwater, at increasingly greater velocity, ever deeper into Louisiana’s coastal landscape and interior wetlands. The increasing intrusion of saltwater stresses the vegetation that holds wetlands together, weakening – and ultimately killing – that vegetation. Thus weakened, the remaining soil is washed away even by minor storms.” Id. ¶¶ 6.7.1-7.2
With the loss of coastal lands, the levees stand to become “de facto sea walls,” a function the levee system is not designed for. Id. ¶ 5.11.
The Authority’s complaint sets forth the regulatory framework for commercial work in the coastal lands. First, there is the Rivers and Harbors Act of 1899, which forbids “any person to … in any manner whatever impair the usefulness of any … work built by the Uniteds States for the preservation and improvement of any of its navigable waters or to prevent floods.” As noted above, the loss of coastal lands would lead to impairment of the levees struggling to serve as seawalls. Second, Clean Water Act permits impose obligations for the maintenance and abandonment of canals, and for the minimization of environmental harm. The permits, it was alleged, had not been complied with. Third, the Louisiana State Land Office granted rights-of-way, which carried with them maximum right-of-way widths and obligations to minimize environmental effects and to indemnify the State for third-party damages. The defendants' rights-of-way had all allegedly eroded and now exceeded their permitted size. Last, state and federal Coastal Zone Management Acts imposed additional obligations. Id. ¶¶ 9.1-9.4.
From that framework, the Authority argues a duty of care arises, breach of which by the energy companies supports a claim for negligence. That claim is joined with claims for strict liability, public and private nuisance, third-party beneficiary rights, and a local favorite, natural servitude of drain. Under the last claim it is asserted, damages and injunctive relief are owed because “Parties, such as Defendants, may not take actions that increase the flow of water across another party’s land, as the Defendants’ activities in Louisiana’s coastal lands certainly and demonstrably have done.” Id. ¶ 23.
Commentary already circulating quotes the plaintiff's attorneys on the potential damages at “many billions of dollars.” Although the damages are very large, many will look at this as just another wetlands preservation lawsuit.
We take a different perspective. The destruction alleged took place over a very long time, by hundreds of entities, with the support of the commercial and political establishments of Louisiana. The status quo in Louisiana was ongoing energy development in conjunction with degradation of coastal lands. No one asserted that billions of dollars were owed. What changed?
A fundamental tenet of this blog is that climate change will create winners and losers. The losers are not going to go quietly; instead, they will look around and see if they can be made whole by someone else. The first wave of climate change liability cases sought to tag the emitters of greenhouse gases with liability; they were uniformly unsuccessful. Is Board of Commissioners the vanguard of the next wave targeting for liability those entities whose activities make defending against climate change much harder?
There is a theory in tort about the eggshell skull. As stated by the Seventh Circuit in Schmude v. Tricam Industries: [enhanced version available to lexis.com subscribers]; "If a tortfeasor inflicts a graver loss on his victim than one would have expected because the victim had some pre-existing vulnerability, that is the tortfeasor's bad luck; you take your victim as you find him.”
Here the Authority might not have done anything, or done it much later, had climate change not exacerbated the dire conditions faced by Louisiana. Will Louisiana’s eggshell skull be a model for others seeking to be made whole for their losses from climate change? Only time will tell. In the meantime, visiting practitioners may wish to practice saying coquille d'oeuf.
J. Wylie Donald, a partner at McCarter & English, LLP, counsels and litigates for clients on insurance coverage, environmental and products liability matters. Mr. Donald co-chairs the firm's Climate Change and Renewable Energy Practice. He draws on his substantial environmental experience, his prior non-legal technical work, and his deep involvement in risk management to assist clients in understanding and controlling the coming regulatory and non-regulatory impacts of climate change. He has tried cases and argued appeals in the state courts in New Jersey and Maryland, conducted private arbitrations and mediations, and argued motions in federal courts across the nation.
Read more at Climate Lawyers Blog by McCarter & English, LLP.
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