The US Supreme Court, now all too familiar with the rule of law, will hear a sensational case on Monday, January 12, packed with tough politics and even the appearance of corruption.
Small bayou towns and parishes in Louisiana, working with plaintiffs’ firms, have filed dozens of lawsuits blaming U.S. energy companies for coastal erosion caused by energy production during World War II. The first of these cases went to trial this spring, with a jury in Plaquemines Parish returning a $750 million verdict against Chevron.
The implementation of these things is reminiscent of an old problem with a clear solution. For decades, states and localities have weaponized their courts to derail lawful and legitimate federal objectives.
Here, a parochial political machine bends Louisiana law to benefit from the federal government’s wartime energy practices. The answer is to remove these cases from the Louisiana courts and try them in a fairer forum, namely federal court.
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The Supreme Court will hear a case about how far local jurisdictions can go to enforce radical environmental laws… 80 years later. (AP Photo/Alex Brandon, File)
Lawsuits are an old problem in the history of the republic. During the War of 1812, pro-British commercial interests in New England flooded federal customs collectors with claims over state laws, an attempt to derail the hated trade embargo with the United Kingdom.
In response, Congress passed the first version of the statute for the removal of federal officers.
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In doing so, Congress established the principle that federal agents doing federal work should be protected from local prejudices and provincial idiosyncrasies. Here we can consider the defendant energy companies to be “federal agents” because they executed federal defense contracts under close federal supervision.
Louisiana confirms the wisdom of this assessment, linking interference in federal energy policy with the appearance of corruption for which the state is unfortunately so widely known.
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As I explained in a amicus brief with Judge Michael Mukasey, the land loss lawsuits are interspersed with abrupt, inexplicable reversals that take on a dark aspect. For example, Louisiana’s Department of Natural Resources (DNR) consistently maintained that pre-1980 energy production could not form the basis for a coastal erosion claim under a state environmental statute.
There are plenty of letters and public statements from the DNR to that effect. But in 2018, the DNR reversed its oft-stated position and approved land loss lawsuits despite state environmental statutes.
The governor of Louisiana oversees the DNR. The governor in 2018 was Jon Bell Edwards, a former trial lawyer who collected millions in campaign contributions from plaintiffs’ counsel.
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Edwards’ successor, Jeff Landry, was a critic of land loss claims until he wasn’t. As attorney general, Landry sued the Army Corp of Engineers for coastal erosion, consistent with the findings of researchers who claim that diking the Mississippi River is the leading cause of land loss in Louisiana.
The implementation of these things is reminiscent of an old problem with a clear solution. For decades, states and localities have weaponized their courts to derail lawful and legitimate federal objectives.
Landry then changed course and signed a formal agreement with the private law firms leading the land loss cases. Those same companies contributed hundreds of thousands of dollars to Landry when he ran for governor in 2023.
Also consider the slippers of the judge, Judge Michael Clement. The judge initially correctly recognized that the plain language of the state environmental statute prohibited pre-1980 claims.
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As such, he dismissed many claims regarding pre-1980 activities. A month later he changed his mind, ignoring the statute’s clear commands and our popular sense of fair play.
As with Edwards and Landry, the attorney for the land loss plaintiffs contributed thousands of dollars to Judge Clement’s most recent re-election campaign (this in a parish with a population of only 20,000). Land loss attorneys play a major role in Louisiana’s judicial elections.
A state watchdog has found that attorneys involved in coastal erosion lawsuits have invested $3 million in Louisiana’s judicial elections. These donations have infected every level of the judiciary, from small-town courthouses to the New Orleans State Supreme Court.
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This crisis of integrity at a system level indicates why removal here is necessary and wise in general. Louisiana’s state courts claim they can challenge wartime energy production policies eighty years after the fact.
It appears they are doing this because of improper local political alliances. This is a prime example of the concerns animating the statute for the removal of federal officers.
Unfortunately for the good people of Louisiana, these events align with the legal climate in their state. Louisiana courts handed down 15 so-called “nuclear judgments” between 2009 and 2023, totaling $10 billion.
Small bayou towns and parishes in Louisiana, working with plaintiffs’ firms, have filed dozens of lawsuits blaming U.S. energy companies for coastal erosion caused by energy production during World War II.
These outcomes create a consent structure for “Better Call Saul” lawyers. During my tenure as attorney general, federal law enforcement began investigating a gang of Louisiana lawyers and their accomplices for allegedly staging car crashes involving 18-wheelers and filing false lawsuits against unsuspecting trucking companies.
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Prosecutors ultimately charged the alleged conspirators, but not before there was a witness killed.
The judges will discuss these issues further during the oral hearing. Let’s hope for a decision that rights the ship and sends these cases back to federal court where they belong.
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