On April 17, the US Supreme Court unanimously ruled 8-0 that Louisiana's sprawling coastal-erosion litigation against American energy producers belongs in federal court. This landmark decision vacated a Fifth Circuit decision that had kept the cases in state court. It also rebuked a legal theory that tried to hold energy producers liable for wartime oil production that the federal government itself directed. Though the ruling addressed jurisdiction rather than the merits, the unanimous decision brought to light several underlying issues with the plaintiffs’ novel theories of liability. That record now follows the cases into federal court, which many consider to be a fairer venue.

Louisiana, a red state with a significant role in U.S. energy production, seems an improbable venue for novel environmental litigation. Yet even Louisiana's Republican governor and attorney general have hitched the state to the forty-plus parish lawsuits – a seemingly coordinated legal campaign that closely resembles climate liability efforts typically associated with deep-blue jurisdictions. While their desire to address coastal and environmental concerns is understandable, these lawsuits attempt to pin responsibility for decades-long coastal erosion on private companies with no causation to those long-term challenges. Local parishes are suing energy companies under innovative theories, relying on courtroom innovation rather than carefully-crafted federal law or established state environmental policy. A seismic shift in energy policy through litigation should give pause to anyone who cares about the importance of the rule of law.

Consider what the plaintiffs allege. The expert report underlying the lawsuits identifies three 1940s production practices as the basis for liability under Louisiana's State and Local Coastal Resources Management Act (SLCRMA): Texaco’s use of vertical drilling, its construction of canals instead of roads, and its reliance on earthen pits instead of steel tanks. Each practice, as Justice Clarence Thomas catalogued for a unanimous Court, traces directly to federal wartime directives.

The Petroleum Administration for War (P.A.W.) ordered oil producers and refiners to “increase to a maximum the production of all grades of aviation gasoline… in the shortest possible time.” Vertical drilling "maximize[d] production" of crude oil. Canals rather than roads saved “time, materials, and manpower,” producing oil more quickly for the war effort. Earthen pits complied with the P.A.W.'s directive to preserve steel – steel the military needed for ships, tanks, and munitions, rather than holding bins. The P.A.W. even designated Texaco’s oil field in Plaquemines Parish as a “Critical Field Essential to the War Program” because its crude oil was, as Justice Jackson noted, “particularly well-suited for refining avgas.” The Parish is suing Chevron, the successor to Texaco, for following specific “all-hands-on-deck” wartime orders to produce crude oil as expeditiously as possible – easily satisfying the conditions for removal to federal court.

This new record reframes the merits examination now headed to federal court, where the plaintiffs’ claims should fall apart quickly in the absence of the homecourt advantage they were seeking in State Court.

Ted Frank, director of litigation at the Hamilton Lincoln Law Institute, has underscored a central flaw in the plaintiffs’ claims: SLCRMA plainly excludes activities that occurred before 1980. The Fifth Circuit already emphasized that SCLRMA is clear - “without exception or caveat” – about this in New Orleans City v. Aspect Energy last year. Louisiana itself has also long acknowledged that federal levee construction by the Army Corps of Engineers and the sediment deprivation that has occurred as a result are central causes of coastal erosion, rather than wrongdoing by private energy companies. Such acknowledgments sit uneasily alongside lawsuits now seeking to place primary blame on companies rather than rightfully and fairly on the government, where government-imposed limits on liability might chill contingency cases brought by plaintiff attorneys. With the propensity for using creative approaches to blame private companies for government activity, it seems there is no soil where contingency profit-centered lawyers will not pick a fight or pitch a tent to pick a fight.

With the state court versus federal court question now resolved, the wartime record that fostered a unanimous decision opens a review of the substantive merits of the claims under law. Now retired Joint Chiefs of Staff leaders General Richard Myers and Admiral Michael Mullen warned the Court in an amicus brief that much of the challenged activity occurred during World War II under directive federal contracts, long before state law provided any remedy for erosion-causing activity. It logically follows that principles leading the Supreme Court to overturn the Court of Appeals will become important to the determination of whether private companies like Chevron can be held liable for following federal directives.

Such concerns extend well beyond consequences and even liability in the state of Louisiana. These lawsuits conflict with and undermine national energy goals by injecting uncertainty into investment decisions across the Gulf Coast. The literal, documented consequences of this variety of litigation risk are reduced drilling activity and domestic energy production, reduced state royalties, and fewer jobs. In a world of multistate consequences, the impact would stretch beyond the borders of Louisiana, spreading to other energy-producing states that depend on offshore and onshore energy production and have adverse, chilling impacts, even if those states decline to bring such litigation themselves.

Other national security leaders have warned that retroactive liability for federally directed wartime activity could discourage private-sector cooperation in future emergencies. If companies fear decades-later lawsuits for following federal directives, the government’s ability to mobilize industry during crises will be compromised.

A successful defense by Chevron would not harm Louisiana in any event. There are valuable resources available to coastal restoration programs that are already delivering measurable progress. Louisiana has made real strides through coordinated restoration efforts rooted in science, engineering, and federal-state cooperation. Those programs should remain the state’s primary focus, not speculative liability theories that only serve to discourage domestic development of critical natural resources, the costs for which are draining our pocketbooks when international conflicts in energy-producing regions are inflating energy prices.

Environmental challenges demand serious solutions. However, rewriting history through litigation, punishing permitted, lawful conduct retroactively, and outsourcing public policy to the courts through contingency-fee lawyers is never the answer. Elected officials should be especially wary of legal strategies that jeopardize the rule of law and economic and energy stability for short-term political convenience. Louisiana’s coastal future deserves better, and so does the integrity of our legal system and the nation’s domestic energy prospects.

Disclaimer: The opinions and views expressed in this article are those of the author and not necessarily those of The National Law Review.