The oil and gas industry did damage. The 5th Circuit Court said go back to court and face the people.
Five major oil and gas companies have again been blocked in their efforts to keep a potentially consequential, nearly 10-year-old natural resource damages lawsuit filed against them by Plaquemines Parish from being heard in a state court in the parish. A three-judge panel of the U.S. 5th Circuit Court of Appeals last week refused to stay its October ruling sending the damages suit back to the 25th Judicial District Court in Plaquemines Parish to be heard, even though the energy firms are attempting to appeal that ruling to the U.S. Supreme Court. In a separate ruling, all the judges on the appeals court also refused to rehear the October ruling by the three-judge panel. The defendant firms are Chevron USA, Exxon Mobil Corp., ConocoPhillips Co., BP America, and Shell.
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The trial was recessed in 2018 when the companies used the argument that they were working for the Federal Government as they were drill for WWII.
The appellate decisions seem to clear the way for the Plaquemines court to resume a trial that was abruptly recessed in 2018. The delay occurred when the companies, using historical drilling activity documents filed by the parish in court, argued they were acting as agents of the federal government in producing oil in the parish during World War II, and thus should have the suit tried in federal court. The decisions could also clear the way for 41 similar lawsuits filed in Plaquemines, Jefferson, St. Bernard, St. John the Baptist, Vermilion and Cameron parishes between 2012 and 2017 against a total of about 200 oil and gas companies to be returned to state courts in those parishes. If successful, those suits could result in billions of dollars in either restoration projects or financial damages being awarded to the parishes or the states. All of those suits were filed on behalf of the individual parishes by the Talbot, Carmouche and Marcello law firm of Baton Rouge. The state and Attorney General Jeff Landry have intervened in all the suits to protect the state’s rights. A 43rd suit, filed on behalf of Orleans Parish, also was removed to federal court and also could eventually be returned to state court.
The Circuit Court panel was comprised of long term judges.
U.S. Circuit Judge Jennifer Elrod issued the Wednesday decision blocking the request for a stay while the case was appealed to the Supreme Court. Her decision followed a Nov. 29 decision by a three-judge panel that included Elrod, appointed by President George W. Bush; Carl Stewart, appointed by President Bill Clinton; and James Graves Jr., appointed by President Barack Obama, to deny a request for the full 5th Circuit Court of Appeals to rehear the case. Attorneys representing the oil companies in the Plaquemines case outlined their plan to appeal to the Supreme Court in their request for a rehearing. The U.S. Chamber of Commerce submitted an “amicus” brief supporting the companies’ arguments. In October, the three-judge panel upheld a ruling by the late U.S. District Judge Martin Feldman, an appointee of President Ronald Reagan, who found that just because oil and gas exploration and production operations were part of the war effort, the suit did not need to be heard in federal court. In their appeal filing, the companies repeated their claims that they should have been treated as “acting under” the orders of a federal officer in producing oil and gas for the war.
The companies used the same argument to the higher court.
They argued that similar cases involving business disputes dating back to the war had been allowed to be tried in federal courts by other appeals courts, and that the dueling rulings should be considered by the Supreme Court. “The companies are disappointed by the decision,” said Jason Harbison, in a statement on behalf of the energy companies. “Like other similar parish lawsuits against oil and gas companies, the allegations in this case challenge decades-old oil production practices, including those used during World War II… As Congress recognized, lawsuits like this one, which implicates distinctive federal interests, deserve to be heard in a federal forum.” “Further, the U.S. Supreme Court explained that access to a federal forum is warranted when a lawsuit involves a private entity that, under government direction, provided the government with an item needed to prosecute a war, as the oil and gas companies did here,” he said. “The energy industry has lawfully and responsibly operated in Louisiana for decades, employing thousands, investing millions in our local communities, and contributing billions to national, state and local economies. But even as our industry here in Louisiana continues to support our allies abroad while simultaneously partnering with the state and other stakeholders to rebuild our coast back home – companies continue to be attacked by these frivolous lawsuits,” said Tommy Faucheux, president of the Louisiana Mid-Continent Oil and Gas Association.
The suing firm is, of course, happy.
The decision to turn down the appeal reconsideration was praised by attorney John Carmouche, who represents the parish in the suit. “The fight to have real and provable damages restored by big oil and gas companies who created the damages has been a long 10-year fight for these parishes and people.” Carmouche said in a statement. “ Consistently, courts have ruled that juries composed of Louisiana citizens in Louisiana courts should make the final decisions about these various damages.” Carmouche said the potential for state courts to order the energy companies to mitigate damage done to wetlands or to compensate parishes and the state for damages is likely to result in new jobs or infrastructure improvements, such as flood protection, “without making Louisiana taxpayers pay for damages they did not cause. Those who created the damages should pay, not the taxpayers of Louisiana.”
Did they work for the Federal Government or for the national effort to win the war? The damage was caused locally so the state is the proper forum.
