Another set of lawsuits against the oil and gas industry has been ordered by a federal appeals court to be heard in state court, another in a string of defeats in the industry’s attempts to move the suits to federal court. This time, the Fifth Circuit Court of Appeals upheld a lower court ruling that remanded lawsuits by two Louisiana parishes against dozens of oil and gas companies, including ExxonMobil, Chevron, BP and Shell, to state court.
Filed by Plaquemines and Cameron Parishes, the suits are among more than 40 that have been brought by Louisiana parishes against oil and gas companies since 2013. The parishes allege the companies’ drilling, dredging and waste disposal operations have severely damaged the state’s wetlands.
The suits do not specifically cite climate change, however the wetlands are a natural barrier that protects coastal residents from climate impacts such as sea level rise, flooding and severe storms.
Jefferson, Vermillion, St. Bernard, and St. John the Baptist parishes, as well as the city of New Orleans, are also seeking to recover damages from the companies for failing to clean up pollution and for failing to restore the marsh wetlands to their original condition.
Barring an appeal to the Supreme Court, the Fifth Circuit’s ruling appears to put all of the suits squarely back in state court, where they were filed. All allege violations of Louisiana’s State and Local Coastal Resources Management Act.
Freeport McMoRan, an oil drilling company that is alleged to be responsible for about 4 percent of the total coastal damages and was named in 14 of the suits, agreed last year to pay the state $100 million in cash and environmental credits.
Like dozens of climate change-related lawsuits filed against fossil fuel companies by municipalities across the country, the early battle has focused on jurisdiction.
This was the second failed attempt by the companies to get the Louisiana cases heard in federal court.
On the first try, the district court determined the cases did not involve federal issues and remanded them back to state court.
This time, the companies argued that an expert report submitted in April 2018 by Plaquemines Parish indicated the claims relied in part on actions taken during World War II.
The companies argued the claims fall under federal jurisdiction because they were acting under the authority of the Petroleum Administration for War, a federal agency created by an executive order issued by President Franklin Roosevelt in 1942. That, the companies say, means the Federal Officer Removal Statute applies, which gives federal courts jurisdiction over civil actions directed at the United States or any federal official.
They also claimed they were unaware that the parishes’ claims involved wartime actions prior to reading the report.
The district court debunked that notion and said the argument was presented too late.
The Fifth Circuit affirmed the decision.
“In this case, the remand was appropriate because the companies filed their notices of removal too late,” a three-justice panel of the appellate court wrote.
The expert report “simply repeated information from a 1980 Louisiana Coastal Resources Program Final Environmental Impact Statement (FEIS) that the parishes filed with the court before the companies’ first removal attempt in 2013,” the panel wrote (emphasis in original).
Neither court explored the merits of the argument.
Attorney John Carmouche, who represents the parishes, told the Bayou Brief the plaintiffs “will move immediately for a trial date.”