Emerging Legal Conflicts

Session Number: 35

Thursday June 3 @ 2:00 – 2:50 PM


Keywords: Economics, Policy, Planning, & Law; Continuing Legal Education


Moderator: Chris Dalbom, Tulane University


2.A.  Louisiana’s ‘Elephant in the Room’: What Legal Remedies Would be Available Amid Failure of the Old River Control Structure

Presenter: Daniel Bosch, Louisiana Sea Grant


Abstract: In 1963, the U.S. Army Corps of Engineers constructed the Old River Control Structure (ORCS) at Vadalia, Louisiana.  It was constructed to contain an avulsion node, or an area of the river where the rapid abandonment of the existing river channel occurs in favor of a new channel.   Since, ORCS has functioned to contain the river to its existing channel, but not without complications and difficulty.  The Mississippi River Flooding of 1973 almost caused the structure to fail.   In light of these events, it has left many to wonder what would happen in the event of the failure of the structure to contain the river and what the legal implications would be.


This paper will seek to address what, if any, legal tools would be at the disposal of affected property owners, residents, and businesses if and when Old River fails.  In general, actionability against the federal government for flood related damage is not possible under the Federal Tort Claims Act and the Flood Control Act due to both sovereign immunity and specific immunity granted explicitly under the ambits of the two statutes. Thus, the only way to succeed on a claim against the federal government for flooding is to prove that an improper taking occurred under the Takings Clause of the Constitution. However, even this remedy proves difficult. 


Part I addresses the background of the ORCS.  Part II addresses economic and normative consequences of the failure of ORCS. Part III surveys legal standards and the degree of success in cases tried for seeking relief from the federal government for the failure of ORCS. Finally, the paper will present a conclusion that, while successful actionability under the Takings Clause and pertinent federal statutes is conceivable, it is not probable.  The more likely solution will not be legal at all, but will rather be political pressure to ask for special appropriations from Congress.


2.B. Researching LNG Development in Louisiana and Texas

Presenter: Naomi Yoder, Healthy Gulf


Abstract: Liquefied Natural Gas (LNG) production and export facilities for international markets are being proposed and approved at staggering rates in North America.   Nowhere is this trend more clear than in coastal Louisiana and Texas.  This “build-out” is so far virtually unchecked when it comes to states and federal governments issuing permits to construct facilities.  In coastal Louisiana and Texas, when large LNG export facilities are built, wetlands and ecologically important areas are destroyed.  In Louisiana where coastal land loss is occurring at an unprecedented rate, it is essential to think through very carefully which projects we build that eliminate wetlands. 


Furthermore, LNG facilities contribute greenhouse gas (GHG) emissions through their construction, feedstock material and drilling, facilities footprints, and operation among others.  Plus, LNG facility ownership and long term viability sheds light on the vulnerability of this industry.  Louisiana and Texas seem to have been appointed as sacrifice zones for LNG export.  This study aims to answer the questions, why here?  Why now?  Who stands to benefit?  Who stands to lose?  Recommendations include evaluating necessity and climate impact thoroughly, including full GHG lifecycle analyses for each new plant, port and pipeline facility.  LNG projects should only be approved after the companies prove the need and communities they impact agree on genuine mitigation for climate and environmental destruction caused by the construction and operation of the facilities.


2.C.  The Role of Law and Policy in Harmonizing Mississippi River Nutrient Management with Coastal Restoration and Flood Protection

Presenter: Mark Davis, Tulane University


2.D. Coastal Landloss Lawsuits; future settlement potential and framework

Presenter: Megan Terrell, Plauche & Carr LLP