Illustrating the challenges in using Louisiana tort suits to address large-scale environmental issues, the U.S. Court of Appeals for the Fifth Circuit dismissed claims seeking relief for alleged coastal damage from oil and gas operations off the Gulf Coast. See Bd. Comm’r Se. La. Flood Prot. Auth.-E. v. Tenn. Gas Pipeline Co., No. 15-30162 (5th Cir. Mar. 3, 2017).

The plaintiff, a Louisiana levee board charged with regional coordination of flood control (the “Board”), brought negligence, strict liability, and nuisance claims, among others, against energy companies in Louisiana state court. Plaintiff alleged Defendants’ canal dredging and other oil and gas exploration and production activities caused land loss, erosion, and submergence in the coastal buffer zone. This, Plaintiff contended, increased storm surge risk on the Louisiana coast and caused the Board to incur costs to restore the coastal land and mitigate flooding risk. After the case was removed to federal court, the trial court granted a defense motion to dismiss those claims, and the Board appealed.

On appeal, the Fifth Circuit upheld the trial court’s decision to dismiss Plaintiff’s negligence claim because the Board could not establish that Defendants owed it a duty of care. The Board argued the federal River and Harbors Act and the Clean Water Act established such a duty. The court disagreed and found that both the River and Harbors Act and the Clean Water Act protect the federal government’s interest, not the Board’s; and that neither the Coastal Zone Management Act nor other state regulations create a private cause of action. The court also upheld the trial court’s dismissal of the Board’s natural servitude of drain and nuisance claims, because the Board’s complaint lacked “specificity.” The court found the Board’s pleading did little more than restate the legal elements of those claims; the Board did not allege facts sufficient to support those claims. As a result, the court affirmed the trial court’s decision on the motion to dismiss.