Louisiana Coastal Zone Litigation Update: Cameron Parish District Court Grants Summary Judgment on Solidary Liability Issue,” Energy Law Advisor, Vol. 17, No. 3, September 2023
By Kelly Ransom, Kelly Hart Pitre
A Louisiana state district court recently granted summary judgment on a critical solidary liability issue in Parish of Cameron v. Auster Oil & Gas, et al., one of forty-two lawsuits (“Coastal Zone Cases”) filed on behalf of several Louisiana coastal parishes alleging violations of the Louisiana State and Local Coastal Resources Management Act of 1978 (the “Act”). In Auster and the other Coastal Zone Cases, the plaintiffs and interveners (“Plaintiffs”) allege separate violations of the 1978 Act by individual defendants who allegedly failed to obtain or adhere to coastal use permits for oil and gas operations and activities dating as far back as the 1930s. Plaintiffs expressly disavow any tort, contract, property, or mineral law claims in their petitions and make clear that the exclusive bases of their claims are the alleged violations of the Act. Though separate violations by individual defendants are alleged, Plaintiffs claim that the separate violations’ cumulative impacts damaged the coastal zone area and assert that the defendants are solidarily liable for such damage. Following a long jurisdictional battle, which was detailed in the Energy Law Advisor’s 2020, 2021, and 2022 updates on the Coastal Zone Cases, the U.S. District Court for the Western District of Louisiana remanded Auster and eleven other Coastal Zone Cases filed by Cameron Parish back to the Thirty-Eighth Judicial District Court in Cameron Parish, Louisiana earlier this year. Because that district court consists of only one division, the twelve cases were all assigned to Louisiana District Court Judge Penelope Q. Richard. Judge Richard set a November 2023 trial date in Auster, as well as a secondary trial date in March 2024, and the parties are currently entrenched in fact and expert discovery. This summer, the defendants in Auster moved for summary judgment on whether the Act authorizes the imposition of solidary liability, a Louisiana concept analogous to “joint and several” liability. In Louisiana, a solidary obligation is never presumed and “arises only from a clear expression of the parties’ intent or from the law.” La. Civ. Code art. 1796. The defendants argued that the Act “creates individual legal obligations to obtain individual permits for individual uses, and it requires each user to conform its individual conduct to the specific terms of its individual permit covering each individual use.” The Act does not provide any basis, according to the defendants, to impose solidary liability. To illustrate the “fundamentally unfair result” of imposing solidary liability under the Act, the defendants explained that, if even the slightest fault is found on the part of a defendant responsible for only a fraction of the activities at issue for only a few years, that defendant would be liable in solido for damages—which Plaintiffs claim total $7 billion— caused by other entities’ operations associated with over 440 wells located across nearly 8,000 acres and occurring over almost a 100-year time span. Plaintiffs responded by pointing to the Act’s shared remedial obligations and the permitting authority’s obligation to consider “cumulative impacts” when issuing coastal use permits. They also relied on evidence purportedly showing that the alleged damage is indivisible to argue that the divisibility of damages is an issue of material fact precluding summary judgment. The defendants maintained that the issue before the court was purely legal and reiterated that solidary liability can only arise from a legal obligation shared by the defendants rather than from the Act’s remedies or obligations imposed on the permitting authority. At the July 26, 2023 hearing, Judge Richard granted the defendants’ motion from the bench, stating that “[t]he Court agrees that this is purely legal argument. That the defendants do not need to provide any fact evidence to go forward with their motion. I don’t find that solidary liability is imposed by the Act.” After the parties submitted competing proposed judgments, the court signed Plaintiffs’ proposed judgment on August 18, 2023, dismissing with prejudice Plaintiffs’ “claims that defendants are solidarily liable for the relief sought.” Though the Judgment tracks the court’s July 26 ruling, it also states: This judgment shall not apply to the solidary liability of parties, persons, or legal entities legally responsible under the SLCRMA for failing to obtain the same coastal use permit when required, or for violating the same coastal use permit, and further, shall not apply to any factually indivisible damage caused by two or more parties, persons or legal entities legally responsible under the SLCRMA for failing to obtain a coastal use permit when required, or for violating a coastal use permit. Whether or to what extent this language narrows the Judgment’s application and scope of Plaintiffs’ claims remains to be seen. Regardless of whether the Auster trial is in November or next March, it is expected to be the first trial in the forty-two Coastal Zone Cases, and the case will undoubtedly continue to be closely watched.
