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The U.S. Supreme Court, by now all too familiar with lawfare, will consider a startling case on Monday, Jan. 12, chock-full of hard politicking and even the appearance of corruption.
Small bayou towns and parishes in Louisiana, in partnership with plaintiffs’ firms, have filed dozens of lawsuits blaming American energy companies for coastal erosion stemming from energy production during World War II. The first of those cases reached trial this spring, with a jury in Plaquemines Parish returning a $750 million judgment against Chevron.
The conduct of these cases recalls an old problem with a clear solution. States and localities have for decades weaponized their courts to derail lawful and legitimate federal objectives.
Here, a parochial political machine is bending Louisiana law to profiteer off of the federal government’s wartime energy practices. The answer is to remove these cases from Louisiana’s courts and adjudicate them in a fairer forum, namely federal court.
The Supreme Court is set to hear a case about how far local jurisdictions can go to enforce radical environmental laws … 80 years after the fact. (AP Photo/Alex Brandon, File)
Lawfare is an old problem in the history of the republic. During the War of 1812, pro-British commercial interests in New England inundated federal customs collectors with state law claims, an attempt to derail the hated trade embargo with the United Kingdom.
In response, Congress passed the first iteration of the federal officer removal statute.
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In so doing, Congress established the principle that federal agents doing federal work ought to be shielded from local prejudice and provincial peculiarities. Here, we can think of the defendant energy companies as “federal agents” because they were fulfilling federal defense contracts under close federal supervision.
Louisiana vindicates the wisdom of this judgment, pairing interference in federal energy policy with the appearance of corruption for which the state, unfortunately, is so widely known.
SUPREME COURT MUST FREEZE THE CLIMATE EXTORTION OF OUR ENERGY INDUSTRY
As I explained in an amicus brief with Judge Michael Mukasey, the land loss lawsuits are shot through with abrupt, unexplained reversals that take on a dark aspect. For example, Louisiana’s Department of Natural Resources (DNR) consistently maintained that energy production predating 1980 could not form the basis of a coastal erosion claim under a state environmental statute.
There are ample letters and public statements from the DNR to that effect. But in 2018, the DNR recanted its oft-stated position and endorsed land loss lawsuits, the state environmental statute notwithstanding.
Louisiana’s governor supervises the DNR. The governor in 2018 was Jon Bell Edwards, a former trial lawyer who collected millions in campaign contributions from counsel for the plaintiffs.
Edwards’s successor, Jeff Landry, was a critic of land loss claims until he wasn’t. As state attorney general, Landry sued the Army Corp of Engineers over coastal erosion, consistent with the findings of researchers who maintain that leveeing the Mississippi River is the principal culprit of land loss in Louisiana.
The conduct of these cases recalls an old problem with a clear solution. States and localities have for decades weaponized their courts to derail lawful and legitimate federal objectives.
Landry then reversed course and signed a formal agreement with the private law firms driving the land loss cases. Those same firms contributed hundreds of thousands of dollars to Landry when he ran for governor in 2023.
Consider also the flip-flops of the trial judge, Judge Michael Clement. The judge initially and correctly recognized that the plain language of the state environmental statute forbade pre-1980 claims.
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As such, he dismissed many claims related to pre-1980 activities. One month later, he changed his mind, ignoring the clear command of the statute and our popular sense of fair play.
As with Edwards and Landry, counsel for the land loss plaintiffs contributed thousands of dollars to Judge Clement’s most recent re-election campaign (this in a parish with just 20,000 residents). Land loss lawyers play heavily in Louisiana judicial elections.
An in-state watchdog found that trial lawyers involved with coastal erosion lawsuits have run $3 million into Louisiana’s judicial elections. These donations have infected every level of the judiciary, from small town courthouses to the state supreme court in New Orleans.
This systems-level crisis of integrity indicates why removal is necessary here and wise as a general matter. Louisiana’s state courts are purporting to second-guess wartime energy production policies fully 80 years after the fact.
It appears they are doing so owing to improper local political alliances. This is a prime example of the concerns animating the federal officer removal statute.
Unfortunately for the good people of Louisiana, these events are of a piece with the judicial environment in their state. Louisiana courts returned 15 so-called “nuclear verdicts” totaling $10 billion between 2009 and 2023.
Small bayou towns and parishes in Louisiana, in partnership with plaintiffs’ firms, have filed dozens of lawsuits blaming American energy companies for coastal erosion stemming from energy production during World War II.
These outcomes create a permission structure for lawyers of the “Better Call Saul” variety. During my tenure as attorney general, federal law enforcement began investigating a gang of Louisiana lawyers and their henchmen for allegedly staging car crashes with 18-wheelers and filing bogus lawsuits against unsuspecting trucking companies.
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Prosecutors ultimately charged the alleged conspirators, but not before a witness was killed.
The justices will consider these matters in greater detail at oral argument. Let us hope for a decision that rights the ship, and sends these cases back to federal court where they belong.
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