Originally published by Laura Springer Brown and Kelly Becker.
The first of 40 coastal permitting lawsuits to proceed to disposition has been dismissed for failure to exhaust administrative remedies.
In a ruling released today, Judge Enright of the 24th JDC for Jefferson Parish dismissed The Parish of Jefferson v. Atlantic Richfield Company, finding that the statutory scheme at issue provided administrative channels to investigate and resolve alleged permit violations, and thus those remedies must be exhausted before the plaintiffs could pursue civil damages through the courts.
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Beginning in November 2013 and as recently as two weeks ago, the parishes of Jefferson, Plaquemines, Cameron, and Vermilion filed a combined 40 lawsuits alleging that oil and gas companies’ coastal operations violated the State and Local Coastal Resources Management Act of 1978 (“SLCRMA”), by either failing to obtain coastal use permits for certain operations, or by violating the terms of coastal use permits.
Atlantic Richfield was the first case to result in a substantive decision in state court. Defendants argued a suite of exceptions in February, the disposition of which was delayed by the separate interventions of the State’s Attorney General and the Louisiana Department of Natural Resources – Office of Coastal Management within the Governor’s Office. The State entities adopted Jefferson Parish’s briefing, and all exceptions were submitted for decision after a July 20th hearing.
The decision released today notes that an administrative procedure for addressing permit violations is set forth in SLCRMA and associated provisions of the Louisiana Administrative Code, specifically La. Admin. Code tit. 43, pt. I sec. 723(D)(1-4). These provisions allow a permitting body to investigate coastal activities, to suspend a permit upon finding that it was violated, and after giving the permittee an opportunity to respond, to reinstate, modify, or revoke the permit. If the permittee fails to comply, then the permitting body can then seek civil or criminal relief in court.
The court noted that there was “no showing that Plaintiff and Intervenors made any attempt to comply with the enforcement regime.” Because Defendants met their burden of showing that an administrative remedy was available, the burden shifted to Plaintiffs to show that an administrative remedy was irreparably inadequate. The Court was unpersuaded by Plaintiffs’ argument that the administrative process was inadequate because it did not provide for an award of civil damages, noting that “in the absence of an exhaustion of administrative remedies, it is yet to be determined whether civil damages exist.” The administrative process is thus necessary to determine the existence of alleged violations. In the court’s view, only after it is established that violations exist which could give rise to damages can Plaintiffs pursue litigation.
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