By Karen Savage
Chevron, ExxonMobil, ConocoPhillips have asked the Fifth Circuit Court of Appeals to reconsider its decision to keep lawsuits in state court that have been filed against them by several Louisiana parishes.
In petitions filed Tuesday, the companies contend a three-judge panel of the appellate court erred when it ruled that the companies waited too long before moving the cases to federal court.
The suits were filed by Plaquemines and Cameron Parishes and 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 fossil fuel companies have tried repeatedly to have the cases heard in federal court.
The first attempt, which was made shortly after the cases were filed, was rejected by the district court, which determined the cases do not involve federal issues and remanded them back to state court.
The companies resurrected that argument in 2018, arguing that the cases belong in federal court because they were acting as federal officers during claims stemming from activities during World War II.
In August, the appellate court rejected that attempt, upholding a lower court ruling that it was filed too late.
At issue in this petition is whether the companies had enough information to move the cases earlier.
The parishes contend they provided a list of serial numbers for the wells when each case was filed, giving the companies ample time to meet the deadline.
Well serial numbers are unique identifiers that correspond to specific sites and their data. Documents related to each well are available online in government databases and presumably in each companies’ internal records.
The companies don’t contest that they were given the serial numbers, but say it wasn’t until 2018, when Plaquemines Parish submitted an expert report, that they learned the parish’s allegations involved actions taken on behalf of the federal government during World War II.
Actions taken under the direction of the federal government are generally heard in federal court and the companies contend the time allowed to file move the cases should have restarted when the report was filed.
The appellate court disagreed, ruling that the report merely repeated information that was provided long before the initial deadline expired..
The companies are now asking for the panel to rethink its decision in a rehearing, or alternately for an en banc hearing in which a full panel of judges would review the panel’s ruling.
En banc and rehearings are not favored and are ordered only to “secure or maintain the uniformity of court decisions” or if the matter involves a question of “exceptional importance.”
A majority of the active Fifth Circuit judges must approve the request in order for either request to be granted.