U.S. Rep. Charles Boustany has introduced the Ending Legacy Lawsuit Abuse Act (H.R. 6169), which is aimed at preventing forum-shopping by attorneys representing landowners in “legacy lawsuits” based on historical oil and gas operations. The bill would amend the Federal Water Pollution Control Act to allow defendants to remove certain lawsuits implicating federal waters from state court to federal court. Specifically, the bill provides that “[a]ny civil action filed in a State court that involves a claim of environmental contamination that impacts or threatens to impact any waters of the United States subject to the jurisdiction of the Corps of Engineers may be removed by the defendant to the United States district court for the district in which the civil action is pending.” Senator David Vitter introduced a nearly identical bill in 2015; however, it stalled after being referred to the Committee on Environment and Public Works.
The scope of the new bill is somewhat unclear, as it does not define what constitutes “waters of the United States subject to the jurisdiction of the Corps of Engineers.” The Army Corps’ regulatory jurisdiction is established by various federal laws, and is broadly defined to include “waters of the United States” for purposes of the Clean Water Act, as well as “navigable waters of the United States” under the Rivers and Harbors Act. Last year, in response to U.S. Supreme Court decisions limiting the Army Corps’ jurisdiction, the Army Corps and the EPA published a joint rule that redefines and expands “waters of the United States” to include, inter alia, traditional navigable waters, interstate waters (including interstate wetlands), territorial seas, tributaries, isolated wetlands and “other waters” to be determined on a case-specific basis. The rule has been met with numerous lawsuits, and the U.S. Sixth Circuit Court of Appeals has issued an order staying implementation of the new rule pending judicial review. It appears that Boustany’s bill is designed to take advantage of the Army Corps’ recent attempts to enlarge its jurisdictional area, but in any event, the legislation looks to have broad applicability (particularly in south Louisiana) if it passes.
In a statement released last week, Boustany’s office discussed the purpose of the new legislation:
[Legacy] suits often name every oil and gas operator who ever worked at the site as defendants, often going back decades. Legislation was enacted to balance the rights of landowners with the requirement to clean up sites, however, some plaintiff lawyers circumvent these laws by venue-shopping in order to file claims in districts that are more friendly to legacy lawsuits. This results in many companies being forced to decide between an expensive settlement or enduring a lengthy trial process that hinders the company’s ability to address cleanup. Dr. Boustany’s bill will require any action filed in a state court that involves a claim of environmental contamination that impacts any waters of the United States to be heard in the district in which the civil action is pending.
Proponents of the legislation argue that coastal oil and gas activities affect national interests and are subject to myriad federal laws and regulations and thus that claims arising from these activities should be resolved by a federal court. Many also argue that the removal of such claims to federal court is necessary to avoid the influence of state and local politics on the judicial process. This sentiment was echoed by LOGA Vice President Gifford Briggs, who said that Boustany’s bill would effectuate the purpose of the federal Coastal Zone Management Act by balancing concerns regarding energy production and the environment:
Congressman Boustany’s bill is intended to recognize the original intent of the Coastal Management Act of 1972. One of Congress’ stated purposes for passing the CZMA was to promote our nation’s energy independence through responsible domestic energy production while balancing the nation’s interest in protecting our country’s wetlands. Both of these national interests are jeopardized by state and local lawsuits prosecuted in local venues under the guise of state and local coastal management programs. Our federal court system was created in large part to insure that the interests of our nation are not discarded in favor of local politics and financial gains at the expense of our national resources.
Boustany’s bill represents a welcome proposal for oil and gas companies facing an onslaught of environmental litigation throughout Louisiana. Defendants in legacy lawsuits may soon have a valuable tool to counteract forum-shopping by plaintiffs’ attorneys looking for an advantage. Gordon Arata is monitoring the status of the legislation and will provide updates as the bill moves through the legislative process.