In Barasich v. Columbia Gulf Transmission, et al., Judge Sarah Vance of the Eastern District of Louisiana dismissed a suit in which plaintiffs claimed that oil and gas production and pipeline companies’ activities in South Louisiana marshes contributed to the destruction wreaked by hurricanes Katrina and Rita. The plaintiffs alleged that dredging of pipeline canals and wellsite locations damaged the marshland, thereby weakening a protective barrier against storm surge and increasing the storm damage suffered by citizens of South Louisiana. Judge Vance held that the complaint failed to state a claim under the Louisiana obligations of neighborhood or Louisiana tort law, finding plaintiffs’ claims to be too “attenuated because they are suing for hurricane damage from storm surge allegedly magnified by coastal erosion caused by the canals, not for a direct loss of acreage due to erosion.”
The Barasich case was filed as a class action on behalf of residents of 17 South Louisiana parishes who suffered hurricane damage. The suit named 11 individual defendants as representatives of two defendant classes, a “pipeline class” and an “exploration & production class.” The complaint alleged that canals dredged by defendants, and defendants’ failure to maintain those canals, caused the destruction of over a million acres of coastal wetlands. But for this damage, plaintiffs alleged, an intact marsh would have provided a buffer that would have greatly diminished the storm surge and winds. An amended complaint sought to hold the defendant classes liable for all costs of restoration of the coastal marshes.
However, Judge Vance found plaintiffs’ Louisiana law claims to be legally unsupportable and dismissed the suit for failure to state a claim. First, she determined that the obligations of neighborhood embodied in Civil Code article 667 do not extend to persons whose properties are distant from each other. Rather, the statute creates duties only “between adjacent owners, or properties that lay physically close to one another.” She also rejected plaintiffs’ tort claims, finding that defendants owed plaintiffs no duty: “For plaintiffs to recover in this matter, they must demonstrate as a matter of law that defendants had a duty to these hundreds of thousands of plaintiffs to protect them from the results of coastal erosion allegedly caused by operators that were physically and proximately remote from plaintiffs or their property.” Likewise, she rejected the plaintiffs’ argument that the defendants’ collective activities were a cause in fact of the damages, finding that tort liability requires proof of individual causation and noting that the Fifth Circuit uniformly rejects theories of market share or enterprise liability. The opinion is available at 2006 WL 3333797 (E.D. La. Sept. 28, 2006).