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Class Action Defense Cases-Barasich v. Columbia Gulf: Louisiana Federal Court Grants Defense Motion To Dismiss Class Action Alleging Defendants Damaged Marshlands Thus Contributing To Hurricane Damage

Political Question Doctrine does not Preclude Court from Considering Class Action Alleging that Oil Industry Activities Dredging Marshlands Increased Hurricane Damage but Class Action Claims Fail to State Claims Under Louisiana Law Federal Court Holds

Two class actions – subsequently consolidated by the district court because they “raise[d] identical issues of law and fact,” leading to the filing of an joint amended class action complaint – were filed against various oil and gas companies following Hurricane Katrina and Hurricane Rita seeking to hold defendants “accountable for their activities that the plaintiffs allege contributed significantly to the storms’ destructive impact in south Louisiana”; the class action alleged that defendants’ activities damaged marshlands “thereby weakening a protective barrier against hurricanes and exposing Louisianans to the prospect of greater harm from these storms.” Barasich v. Columbia Gulf Transmission Co., 467 F.Supp.2d 676, 678 (E.D. La. 2006). Defense attorneys moved to dismiss the class action complaint under Rule 12(b)(6) on the grounds that the claims involved political questions and therefore were nonjusticiable, and for failure to state a claim, id., at 680. The federal court rejected defense arguments that the class action claims were not justiciable, but granted the motion to dismiss the complaint for failure to state a claim.

The theory underlying the class action is (1) Louisiana’s coastal marshlands protect the state from hurricane damage, (2) defendants’ oil producing and transmission activities included dredging canals through these marshlands, destroying millions of acres of marshlands thereby “depriving inland communities . . . of their natural protection from hurricane winds and accompanying storm surge.” Barasich, at 679. The second amended class action complaint alleges “class members suffered personal injury and/or death, property damage, and the loss of the wetlands’ value as storm protection” and prayed for “all damages reasonable in the premises, including restoration.” Id., at 679-80. Defense attorneys moved to dismiss the class action complaint on two grounds: “1) the subject matter of plaintiffs’ action is nonjusticiable because it concerns a political question, and 2) plaintiffs do not state a claim upon which relief may be granted because they cannot prove the requisite elements for recovery as a matter of law under any available theory.” Id., at 680.

The district court first addressed whether the class action claims were not justiciable, noting the general principle that “the doctrine must be cautiously invoked, and the mere fact that a case touches on the political process does not necessarily create a political question beyond courts’ jurisdiction.” Barasich, at 680 (citations omitted). The federal court quoted Supreme Court authority setting forth the test for determining nonjusticiability, the presence of any one of which is sufficient: “[1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.” Id. (quoting Vieth v. Jubelirer, 541 U.S. 267, 277-78 (2004)).

The court admitted that proper application of this test is not “self-evident,” Barasich, at 680, but after a detailed analysis concluded that the political question doctrine did not apply, id., at 680-89. The district court reasoned in part at page 684 that the “lack of judicially manageable standards” test has never been applied to “a dispute between private parties,” and that the class action complaint involved “nothing more than a tort suit under Louisiana law.” The court also quoted at page 685 Second Circuit authority that “a politically charged context does not convert what is essentially an ordinary tort suit into a non-justiciable political question” (citation omitted). The court concluded that while the class action may “be a complex case to adjudicate,, that fact alone does not create a nonjusticiable political question, id., at 688.

Turning to whether the class action complaint failed to state a claim, the federal court agreed with defense attorneys that plaintiffs could not recover under Louisiana Civil Code articles 667, 2315 or 2317. Barasich, at 689-95. In part, the court held that plaintiffs could not establish legal causation or cause-in-fact, and concluded at page 695:

The Court has not found a controlling or persuasive case at all similar to that proposed by plaintiffs, in which a plaintiff could collect damages from an industry as a whole without demonstrating any individual connection between any single member of the industry and the plaintiff’s harm, and in which liability would be assessed against industry defendants on a group liability theory. The Court concludes that such cases do not exist because they would subvert the notion of causation that underlies the system of tort liability in Louisiana.

Accordingly, while the district court recognized that “coastal erosion is a serious problem in south Louisiana,” id., at 695, it granted the defense motion to dismiss the class action complaint for failure to state a claim.

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