SAVING LOUISIANA’S WETLANDS: SOLVING THE LONGSTANDING ENVIRONMENTAL CRISIS THROUGH CONTRACTUAL LIABILITY

By: Blake Donewar[138]*

I. INTRODUCTION

Louisiana is currently losing its wetlands at a rate of sixty-six square kilometers per year due to a variety of causes.[1] At least 36% of Louisiana’s wetland loss is attributable to the activities of the oil and gas industry—primarily canal dredging.[2] The oil and gas industry, under servitude agreements, has dredged most of the affected canals. Improper maintenance of these canals has subsequently eroded much of the land on which they are situated.[3] Southeast Louisiana has also suffered from the weakening of the natural buffer provided by wetlands against hurricanes.[4] Further, the salt water intrusion caused by canal dredging has corroded the oil and gas industry’s own pipelines.[5] Thus, the canal dredging has harmed both the citizens of Louisiana and the oil and gas industry.

Nevertheless, the burden of preventing coastal erosion has fallen almost entirely on taxpayers.[6] One Louisiana state agency attempted to hold the oil and gas industry liable in a massive lawsuit brought on behalf of Louisiana citizens; however, this lawsuit failed because Louisiana law does not impose a generalized duty to prevent wetland loss on the oil and gas industry.[7] Because Louisiana landowners are owed a contractual duty to maintain dredged canals by the oil and gas industry, this Comment proposes a solution that is driven by private litigation.

This Comment begins by explaining what wetlands are, their current status, their role in protecting Louisiana from hurricanes, who is at fault for their disappearance, and one state agency’s ambitious attempt to hold the oil and gas industry liable. Next, this Comment explores a contractual solution to the wetland problem and potential damages. This Comment then explains the efficacy and shortcomings of such a contractual solution. Finally, this Comment proposes a number of changes to Louisiana’s law to address the shortcomings of this contractual theory of liability including: (1) courts finding that express waivers of the duty to maintain canals are against public policy (which will increase the number of potential plaintiffs), and (2) the legislature expanding a pre-existing statute intended for remediating contaminated property to include erosion damage.

II. BACKGROUND

A. Defining Wetlands and Their Importance

Wetlands are areas that are frequently saturated with water, which enables them to support vegetation adapted for life in such saturated soil.[8] Wetlands are important for their roles in water purification, storm protection, industry, travel, research, education, and tourism.[9] However, this incredibly important resource is rapidly disappearing because of human interference.

The United States has lost approximately half of its total wetlands over the last 200 years.[10] Louisiana contains about 40% of the remaining wetlands in the continental United States, and approximately 80% of the United States’ total wetland loss occurred in Louisiana.[11] The current rate of coastal wetlands loss is about sixty-six square kilometers per year—far exceeding what human intervention can repair.[12] Many Louisiana residents have referred to the problem as “losing a football field of land to the ocean every hour.”[13] Louisiana’s wetlands make up 11% of the state’s total landmass, but at this rate they will completely disappear in approximately 200 years.[14]

The most devastating effect of wetland loss has been the increased damage from flooding caused by tropical storms and hurricanes.[15] Coastal wetlands dissipate storm energy by acting as natural buffers against wind, rain, and wave actions.[16] In addition, a single acre of wetlands can store around 360,000 gallons of water when flooded to a depth of one foot.[17] Therefore, if the wetlands can be restored, hurricanes that make landfall in Louisiana could cause significantly less damage. Hurricane Katrina, which caused the deaths of 1,833 people and $151 billion of damage in Louisiana, could have had a much smaller impact had the wetlands been intact.[18]

In response to Hurricane Katrina’s destruction, the Louisiana State Legislature created the Coastal Protection and Restoration Authority to develop a plan to reverse the damage to the wetlands.[19] The Coastal Restoration Plan is estimated to cost a minimum of $50 billion, but there is a high likelihood that its actual cost will be closer to $100 billion.[20] While many agree that the Coastal Restoration Plan is necessary, there is less consensus regarding who should foot the bill.[21] As the situation stands, taxpayers will be forced to take on a disproportionate share of the burden despite the fact that they are not the primary cause of the wetlands’ destruction.[22]

B. Introducing the Canal Problem

One of the primary causes of Louisiana’s wetland erosion is the dredging of canals.[23] Before Louisiana’s canals were built, runoff from rain flowed across the wetlands, which supplied the wetlands with nutritious sediment.[24] However, the canals now bring this runoff into freshwater lakes and bays, indirectly causing the starvation of the wetlands.[25] In addition, these canals expose freshwater and brackish wetlands to saltwater, which leads to the death of salt-intolerant vegetation and causes expansive erosion.[26] Even worse, because of improper maintenance, many of these canals have eroded much of the land that they are situated upon.[27]

Most of these canals were built for oil and gas exploration, navigation, pipelines, and well maintenance. The oil and gas industry alone has dredged over 10,000 miles of transport canals throughout Louisiana’s wetlands, but warnings of the damage that these canals would eventually cause began as early as 1925. Of the 35,163 dredged canals in Southeast Louisiana, 27,483 have been officially abandoned and these canals are at risk of eroding the surrounding land. Unfortunately, restoring the land to its pre-dredging condition will cost an estimated $60,000 per acre with current technology, but the market value of much of the property that has been damaged is as low as $200 per acre.[28]

C. Louisiana Fights Back: A Widely Ambitious But Ultimately Unsuccessful Lawsuit Provides a Hint Towards Future Success

In Board Of Commissioners Of The Southeast Louisiana Flood Protection Authority—East v. Tennessee Gas Pipeline Company, L.L.C., the Flood Protection Authority filed a lawsuit against ninety-seven oil and gas companies alleging that their operations have led to coastal erosion, causing parishes in its jurisdiction to be more susceptible to severe weather and flooding.[29] The Flood Protection Authority sought damages and injunctive relief requiring the backfilling and revegetating of canals, as well as other forms of injunctive relief.[30] The Flood Protection Authority was attempting to force the oil and gas industry to pay for the portion of the damage to the wetlands for which the industry was responsible.[31] The sheer scope of the lawsuit caused the New York Times to refer to it as “The Most Ambitious Environmental Lawsuit Ever.”[32] Ultimately, the lawsuit was dismissed for failure to state a claim and was appealed to the Fifth Circuit Court of Appeals, which affirmed the district court’s ruling.[33]

The Flood Protection Authority set forth many arguments; however, this Comment will only focus on their argument that the oil and gas companies were liable under a theory of negligence.[34] Louisiana utilizes a duty-risk analysis for establishing negligence, which requires proving that a duty of care existed to “protect this plaintiff from this type of harm arising in this manner.”[35] The Fifth Circuit concluded that even if some plaintiffs could recover for the damages caused by the oil and gas industry’s negligence, this cause of action requires proving breach of a duty of care that was not owed to the Flood Protection Authority despite its explicit purpose of providing “regional coordination of flood protection.”[36] In summary, this case showed that a state agency filing a lawsuit on behalf of the regions of Louisiana affected by coastal erosion will not be able to force the oil and gas industry to pay for the damage it has caused because state agencies themselves are not owed any such duty. However, while the oil and gas industry may not owe a duty to state agencies, it may still owe a duty to other potential plaintiffs, like the owners of the lands on which these canals are built.

III. THE CONTRACTUAL SOLUTION TO THE CANAL CRISIS

A. The Duty Problem: The Stipulated and Implied Duties to Maintain and the Express Waiver Loophole

The contractual relationship between parties may serve as a platform for imposing a duty to maintain canals.[37] In reaching this conclusion, it is important to note that most of these harmful canals were dredged by the oil and gas industry through the use of servitude agreements.[38] A servitude[39] is a right in property, known as a real right, that is less than full ownership.[40] Most canal servitudes are properly classified as rights of use, which are contractual servitudes granted in favor of people and businesses.[41] These right of use agreements are governed by the contract that created them along with the suppletive rules of the Louisiana Civil Code.[42]

The owners of the 10,000 miles of land where these canal servitudes are located constitute a large group of potential plaintiffs whose land has suffered most directly from the negligent maintenance of the canals.[43] When a canal servitude is created, the right of use agreement defines the dimensions of the canal; however, due to negligent maintenance, many of these canals have expanded past the contractually agreed upon dimensions.[44] This leads to the question of whether a grantee of a right of use who constructs a canal has a legal duty to maintain that canal and prevent erosion. When establishing whether any contractual duty exists, three questions naturally follow: (1) Is there a duty stipulated in the contract? (2) If not, is there suppletive law that provides an implied duty? (3) Finally, if there is an implied duty, did the parties expressly waive that duty?

The Stipulated Duty to Maintain

If a contract stipulates a duty to maintain a canal, then a breach of that duty will be enforceable in a breach of contract action.[45] Despite the obvious nature of this principle of law, the oil and gas industry has escaped liability even when there was a stipulated duty to maintain.[46] The following two cases address whether a servitude agreement that stipulates a duty to maintain a pipeline also applies to the canal that was built to store the pipeline.[47]

In St. Martin v. Quintana Petroleum Corporation, the defendants owned a canal servitude on the plaintiffs’ land.[48] The servitude agreement stipulated that the canal would not exceed a width of forty feet.[49] Within forty years, however, the canal had nearly doubled in size to a width of seventy feet.[50] The agreement also stipulated that the servitude holder would “pay [for] any damages . . . to the property . . . from the construction, maintenance, and operation of [the] pipelines.”[51] Despite this agreement and the canal’s growth, the United States District Court for the Eastern District of Louisiana found that the stipulated duty only referred to the construction, maintenance, and operation of the pipelines, and that it did not include the canals built to store the pipelines.[52] Thus, because the court concluded that the defendant only owed a duty to maintain its pipelines, there was no legal duty to maintain the canal.[53]

Thankfully, the erroneous reasoning in the above decision was subsequently corrected by the Fifth Circuit Court of Appeals in Terrebonne Parish School Board v. Colombia Gulf Transmission Company.[54] Similar to St. Martin, the canal in this case had nearly doubled in size, and the defendants argued that their servitude agreements specified pipelines, not canals.[55] Nevertheless, the Fifth Circuit concluded that the distinction between a canal servitude and a pipeline servitude was meaningless because any canal built to store a pipeline is an incidental property right belonging to the principal pipeline property right.[56] Since the canal is essential to the use of the pipeline, any duty to maintain the pipeline is also applicable to the canal.[57] Of course, since oil and gas companies have attempted to obfuscate even the relatively simply effects of a stipulated duty to maintain, the question of whether there is an implied duty to maintain is far more complicated.

The Implied Duty to Maintain

In most cases, the landowner and canal servitude holder agreed to a type of servitude known as a right of use, which contemplated the specific dimensions of the canal.[58] A right of use is governed by the contract that created it and also by the rules governing usufruct and predial servitudes to the extent that those rules are compatible with the nature of a right of use servitude.[59] A predial servitude is a charge on a servient estate for the benefit of a dominant estate, and an owner of a dominant estate may not do anything to render the servitude more burdensome.[60] Further, it is a well-established jurisprudential rule of servitude law that the dominant estate owner may not aggravate the condition of the servient estate.[61] In addition, doubt as to the extent of a predial servitude is interpreted in favor of the servient estate.[62]

When read together in light of the relevant jurisprudence, the above articles state that an owner of a right of use may not do anything to render the right of use more burdensome.[63] Logically, if a landowner grants a right of use to another party to create a canal and stipulates certain dimensions, it follows that the expansion of the canal past the contractually agreed upon amount makes the servitude more burdensome for the landowner. Additionally, even if another valid interpretation exists, courts should still find that there is an implied duty to maintain the canals because doubt as to the extent of the servitude should be interpreted in favor of the free use of the burdened estate.[64] Therefore, the Louisiana Civil Code provides a suppletive rule that the owner of a right of use who builds a canal pursuant to that right of use has an implied duty to maintain the canal at the contractually agreed upon dimensions.

Recently, the Eastern District of Louisiana found that servitude holders have an implied duty to maintain canals constructed pursuant to servitude agreements in Vintage Assets, Inc. v. Tennessee Gas Pipeline Company, L.L.C.[65] The plaintiffs, a group of landowners who owned 20,000 acres of land in Southeastern Louisiana, filed suit against multiple pipeline companies that owned canal servitudes on the plaintiffs’ land.[66] The plaintiffs brought numerous claims, but their most successful claim was based on breach of contract.[67] Despite the lack of a stipulated duty in the servitude agreement, the court found that the defendants had a contractual duty to maintain the canals and that they breached that duty, which was the cause of the damage to the plaintiffs’ land.[68] Unfortunately, after being appealed to the Fifth Circuit Court of Appeals, the ruling was vacated for lack of subject-matter jurisdiction.[69] However, the decision was not vacated on its merits, and the reasoning of the opinion is still supported by the provisions of the Civil Code.[70]

The Duty Loophole: Express Waivers of the Duty to Maintain

Under most circumstances, contractual obligations and suppletive obligations supplied by the Civil Code may be waived by the parties to the contract.[71] In Ryan v. Southern Natural Gas, the defendants constructed a canal on the plaintiffs’ property pursuant to a “servitude agreement.”[72] The plaintiffs filed suit against the defendants alleging that their failure to dam the pipeline canal caused damage to 330 acres of marshland.[73] The plaintiffs submitted into evidence an internal memorandum from the defendants acknowledging that the defendants originally had an obligation to dam the canals, but an earlier landowner had later agreed to waive that obligation.[74] The trial court concluded that the defendants’ failure to dam the canal was the cause of the damage. The plaintiffs were allowed to recover under their negligence claim for the loss of thirty-nine acres of land due to the widening of the canal and for the cost of future maintenance to prevent additional marshland deterioration.[75]

On appeal, the Fifth Circuit noted that any duty imposed on the servitude owner to avoid damage to the plaintiff’s land is subject to the instrument creating the servitude.[76] Further, the Louisiana Civil Code explicitly gives the parties the power to contractually alter any duty owed to the landowners by the servitude holder.[77] In reversing the trial court’s decision, the Fifth Circuit concluded that any duty the defendants may have had was waived by the landowner in the second agreement referenced by the defendants’ memorandum.[78] Thus, if a servitude holder has any duty to maintain canals, it may be waived by the parties either in the agreement itself or in a subsequent agreement. Although Ryan has not been overturned, there are considerable public policy arguments that can be made against the decision, which will be addressed in the proposal section of this Comment.[79]

B. Contractual Liability: An Alternative Remedy for a Tortious Problem

In Vintage, the court aptly stated that “it is self-evident that allowing a canal to widen such that it encroaches on the servient estate or erodes the servient estate into open water constitutes aggravation.”[80] Therefore, the proper analysis for whether there has been a breach of the duty to maintain a canal should be: (1) whether there was any widening of the canal past the dimensions contemplated in the servitude agreement, or (2) whether the canal eroded the servient estate into open water.[81] Since failure to maintain canals often leads to either or both of the above results, it should be fairly simple for future litigants to establish breach of duty.[82] The question then becomes whether to seek recovery under a contractual or tortious theory of liability for the breach of that duty.[83]

Although most attorneys would bring tort claims, such as negligence, trespass, and nuisance, under the facts of these canal servitude cases, this course of action is ill advised. Instead, attorneys should pursue a contractual theory of liability. The most important reason that a remedy for contractual breach is preferable to a tort remedy involves the potential amount of damages available when the injury is suffered by immovable property.[84] When the basis for liability is in tort, the measurement of damages to immovable property is generally capped at the market value of the immovable.[85] However, when the basis for liability is breach of contract, the measurement of damages is not limited to the value of the property lost.[86] Thus, because contractual breach is an available cause of action that is as viable as a tortious cause of action, and the potential damages for a contractual theory of liability are much higher, there is no reason to pursue a tortious theory of liability.

Before addressing the measurement of damages, the remedy of specific performance must be addressed because Louisiana courts are instructed to award specific performance in breach of contract cases unless it is impracticable.[87] Specific performance is impracticable when it is “greatly disproportionate in cost to the actual damage caused, no longer in the creditor’s interest, or of substantial negative effect upon the interests of third parties.”[88] When specific performance is impracticable, “the court may instead fix damages.”[89] The Court in Vintage reasoned that the duty to maintain a canal built pursuant to a right of use includes an obligation to restore the land if that duty is breached; in such a case, specific performance includes restoring the land to the dimensions designated in the contract.[90] Unfortunately, the market value of the property that the canals are built on is low, while the cost of restoring the land to its original state is substantially higher.[91] Further, it is more advantageous for landowners to receive damages for the erosion of their land rather than having their nearly worthless land repaired.[92] Thus, courts would likely grant damages in these cases due to the impracticability of specific performance.

When there is contractual liability for damage to an immovable, the amount of damages is only governed by the terms of the agreement and the good or bad faith of the obligor.[93] An obligor is deemed to be in good faith unless it is proven that the obligor intentionally and maliciously failed to perform his obligation.[94] A finding of bad faith requires actual or constructive fraud or a refusal to fulfill contractual obligations, rather than an honest mistake as to rights or duties.[95] Moreover, a good faith obligor is liable only for damages that were foreseeable at the time the contract was made.[96] Foreseeability is more relevant to causation than damages because “it is not necessary that the exact extent of the damages resulting from a failure to perform should have been within the contemplation of the parties.”[97] On the other hand, a bad faith obligor is liable for all damages that are a direct consequence of his failure to perform, regardless of whether they are foreseeable or not.[98]

If the servitude agreement did not stipulate the duty to maintain the canal, meaning the duty was implied as discussed above, then courts would likely find it difficult to conclude that the obligor intentionally and maliciously failed to perform that obligation. Logically, if a party’s obligation is not stipulated in a contract and is instead only found through the interpretation of multiple code articles, a rational person would conclude that the party was most likely ignorant of that obligation. Taken a step further, if a person is ignorant of an obligation, it is impossible to conclude that the person’s failure to perform that obligation is intentional and malicious. Therefore, when only an implied duty created an obligation to maintain a canal, the courts would likely find that a party failing to maintain that canal was in good faith, and the landowner could only recover for damages that were both foreseeable and directly caused by the servitude holder’s failure to maintain the canal.

In Vintage, the court found that the oil and gas companies were aware that their failure to maintain pipeline canals would result in erosion of the land and widening of the canals as early as 1953.[99] Following this reasoning, the court concluded that it was foreseeable at the formation of the servitude agreements that failing to take measures to maintain the canals would inevitably result in their widening.[100] Although the decision in Vintage was vacated for jurisdictional reasons, there are no flaws in the court’s reasoning, and courts in the future should come to the same conclusion.[101] In fact, future courts could come to a more favorable conclusion than Vintage because the state was aware of the problems canals would cause beginning in 1925; therefore, one could argue that erosion damage due to failure to maintain the canals was foreseeable as early as 1925.[102]

On the other hand, if the servitude agreement stipulated the duty to maintain the canal, then it is much easier to conclude that the servitude holder simply refused to fulfill his contractual obligations. Because an express stipulation of the duty to maintain the canal makes it impossible for a party to claim that he misunderstood his obligation, the only logical conclusion is that a party who failed to maintain a canal pursuant to such a servitude agreement was acting in bad faith. Therefore, when a servitude agreement contains an express clause stipulating a duty to maintain a canal, courts would likely find that a party failing to maintain that canal was in bad faith, and the landowner could recover all damages that are a direct consequence of the servitude holder’s failure to maintain the canal, regardless of the date that the canal was built.[103]

IV. ADVANTAGES AND SHORTCOMINGS OF THE CONTRACTUAL SOLUTION

The biggest advantage of finding liability under a theory of breach of contract involves the potential for disproportionately high damages.[104] Impactful findings of liability against pipeline companies for their failure to maintain canals will encourage other potential plaintiffs to file lawsuits in hopes of recovering damages or restoring their land. If enough of these lawsuits are filed, pipeline companies will have an incentive to backfill and maintain their canals in order to avoid future costly lawsuits. Under current Louisiana law, these plaintiffs would not be required to use the remediation damages they receive to restore the land.[105] Thus, when people realize the potential legal goldmine in the land burdened by these canals, they will likely buy the land due to its low market value and use it to file more lawsuits in hope of recovering restoration damages.[106]

Unfortunately, the great incentive to file lawsuits that this theory of breach of contract provides for landowners is also its greatest weakness with regards to fighting coastal erosion. While landowners’ suits have a greater likelihood of succeeding, their interests as landowners diverge from the interests of all Louisiana residents in ways that make them less suitable plaintiffs for obtaining the sort of remedy that the Flood Protection Authority sought in Board of Commissioners of the Southeast Louisiana Flood Protection Authority. The Flood Protection Authority’s goal was restoration and maintenance of the state’s wetlands, but the goal of landowners under the current law would be to obtain large amounts of damages from their lawsuits.[107] Further, the generalized tortious duty that the Flood Control Protection Authority sought to establish would have held the pipeline companies liable for coastal erosion.[108] Since the theory of liability explained in this Comment is based on a contractual duty, the oil and gas industry would only be held liable for damages to the land that the canals are situated upon, which means that they would not be liable for coastal erosion under this remedy. Despite these shortcomings, the contractual solution in this Comment will still help fight coastal erosion by creating a monetary incentive for the oil and gas industry to prevent canal erosion.

V. SUGGESTED CHANGES TO ADDRESS THE SHORTCOMINGS OF THE CONTRACTUAL SOLUTION

While no changes to the law are required to hold pipeline companies responsible for the damage they have caused to the land that their canals are situated upon, some changes could be made to increase the effectiveness of this contractual solution in saving the wetlands. The goal of the following changes is not to enrich the private landowners, but to incentivize the oil and gas industry to start maintaining their canals to prevent future land loss. Nevertheless, without the proper incentive structure for landowners, they will not file lawsuits and nothing will be done about the erosion caused by the canals. Thus, the following changes are suggested to (1) increase the number of plaintiffs that can file lawsuits for contractual breach; and (2) create the legal structure necessary to maximize the use of awarded remediation damages towards the restoration of Louisiana’s wetlands, while still maintaining the monetary incentive for landowners to file lawsuits.

A. Overruling Ryan: An Express Waiver of the Duty to Maintain Should be Unenforceable

The Fifth Circuit’s decision in Ryan, the case that held that an express waiver of a duty to maintain a canal is enforceable, is not binding because it is a decision made in a federal court about Louisiana law.[109] Some courts may still find the Fifth Circuit’s decision persuasive, but these courts should note that, in Ryan, the Fifth Circuit fundamentally misunderstood Louisiana servitude law.[110] Therefore, future courts with a better understanding of Louisiana law should reexamine the express waiver conclusion that the Ryan court reached. I propose that courts reexamining the express waiver of the duty to maintain issue find that such a waiver is unenforceable as against public policy.

When the object of a contract violates public policy, the contract is absolutely null and is thus unenforceable.[111] A contract is against public policy if “the interest in its enforcement is outweighed by a public policy harmed by enforcement of the agreement.”[112] Louisiana has a great interest in the continued existence of its wetlands because of their utility in keeping the state safe from hurricanes and providing economic prosperity.[113] Further, the state has already crafted plans to restore the wetlands, showing that the legislature’s public policy goal is currently to protect and restore the state’s wetlands.[114] The damage caused by mismanaged canals to the wetlands has been well-documented.[115] More importantly, the damage to the wetlands has caused public safety and welfare concerns due to the exacerbated effects of hurricanes.[116] Therefore, a clause waiving the duty to maintain canals contravenes an established interest of society and interferes with public welfare and safety. The public interest in enforcement of these waivers is relatively low compared to the destruction caused by the aggregate of all of the mismanaged canals in Louisiana.[117] For this reason, courts that reexamine this issue in future cases should find that a waiver of the duty to maintain a canal is absolutely null.

When a provision of a contract is null, the nullity does not render the whole contract null unless the contract would not have been made without the null provision.[118] The oil and gas industry likely would have entered into these servitude agreements even without these provisions because they were dependent upon building pipelines through wetlands for the purposes of oil and gas exploration and transportation.[119] Given the highly lucrative nature of the oil and gas industry in Louisiana, it is difficult to imagine that these companies never would have done business in Louisiana had they known they would be held responsible for erosion damage caused to the canals of private landowners.[120] Therefore, if the courts eventually find that clauses waiving the duty to maintain canal are absolutely null, they should still enforce the remainder of the contract.

B. Patching Corbello: Expanding La. R.S. 30:29 to Include Erosion

Under a tortious theory of liability for damage to an immovable, damages are generally capped at the market value of the immovable.[121] However, under the highly controversial Corbello v. Iowa Production decision, damages are not capped at the market value of the immovable under a contractual theory of liability.[122] This decision was necessary to prevent lessees and servitude holders from polluting land that has relatively low market value when compared to the cost of preventing pollution.[123] The major problem with this holding is that landowners are not required to use the damages award to remediate the land, which creates a huge windfall without limits for plaintiffs.[124] For instance, in the Corbello decision, the award of restoration damages was $33 million, which was 300 times greater than the value of the property itself.[125]

The legislature quickly acted to partially remedy the Corbello windfall problem by enacting La. R.S. 30:29, which requires settlement agreements and restoration damages awards for contaminated property to be used for remediation purposes.[126] La. R.S. 30:29 creates a regulatory scheme for restoring property upon a finding that environmental damage caused by contamination exists and determination of the parties at fault.[127] Under the statute, any remediation damages awarded that are required for the remediation of the plaintiffs’ land must be paid to the registry of the court.[128] However, any remediation damages that are in excess of the amount needed to actually remediate the land will be awarded to the plaintiff.[129]

For the purposes of La. R.S. 30:29, contamination is defined as “the introduction or presence of substances or contaminants into a usable groundwater aquifer, an underground source of drinking water or soil in such quantities as to render them unsuitable for their reasonably intended purposes.”[130] This definition of contamination clearly excludes damages awards from land loss. Therefore, would-be plaintiffs that file lawsuits for erosion caused by canals situated upon their land stand to gain a large windfall for damages granted under the Corbello decision because they are not required to use restoration damages award to actually restore the land.[131] While this obviously encourages more litigation, which is useful for the purposes of disincentivizing further negligent canal maintenance, excessive awards of restoration damages will do virtually nothing to repair the land that has already been damaged.

For this reason, I propose that the legislature amend La. R.S. 30:29 to cover contamination and erosion.[132] This change would prevent the unjust enrichment of landowners and establish a process for the much-needed restoration of Louisiana’s land. Although this change would obviously greatly weaken the incentive of landowners to file lawsuits, these potential plaintiffs would still benefit from the increased value of their land as a result of its restoration and from the satisfaction of helping prevent land loss in their state. Further, these plaintiffs may still receive any remediation damages in excess of the amount needed to remediate the land.[133]

Despite the loss of potential excessive damages awards, this proposal could persuade some hesitant landowners to file lawsuits. La. R.S. 30:29 provides that if a party to the civil action proves that the defendant is responsible for environmental damages and provides the necessary evidence, they may recover all costs attributable to producing that evidence, including reasonable attorney and expert fees.[134] Many landowners would not file a lawsuit, even if they knew that they would win, if they believe that they would ultimately lose money to attorney and expert fees. Allowing these plaintiffs to recover these fees will at least remove their fear that they will lose money despite winning their lawsuit.

VI. CONCLUSION

The goal of the litigation over these canals has always been to force the oil and gas industry to take responsibility for the damage they have caused. While a large-scale lawsuit brought on behalf of the citizens of Southeast Louisiana may seem attractive for its potential expediency in reducing the rate of coastal erosion, the opportunity for excessive mass media coverage, and the chance of a large potential payout, the current jurisprudence indicates that lawsuits brought by landowners that are subject to these canal servitudes may produce more favorable results.[135] Thus, future efforts to impose liability on the oil and gas industry for their damage to the wetlands should focus on bringing lawsuits through these landowners.

The contractual theory of liability outlined in this Comment has already been proven to be effective in the Vintage case.[136] Plaintiffs pursuing this theory of liability could potentially be awarded large amounts of damages under the Corbello decision.[137] Therefore, although the oil and gas industry may have escaped their responsibility to repair the damage they have caused thus far, they will be forced to take responsibility when landowners realize the potential damages they could receive. Some changes could be made to the law to further help fight coastal erosion, such as courts finding that waivers of the duty to maintain are against public policy and the legislature amending La. R.S. 30:29 to include erosion damage. Nevertheless, even without these changes, future cases that successfully establish contractual liability will provide a large step toward curbing wetland erosion because the oil and gas industry will finally have an incentive to maintain their canals.

  1. . Louisiana’s Rate of Coastal Wetland Loss Continues to Slow (Jul. 12, 2017), at 3, United States Geological Survey, https://www.usgs.gov/news/usgs-louisian
    a-s-rate-coastal-wetland-loss-continues-slow.
  2. . Dredging is the removing of silt and other materials from the bottom of bodies of water. National Oceanic and Atmospheric Administration, What is Dredging?, National Oceanic and Atmospheric Administration, https://oceanservice.noaa.
    gov/facts/dredging.html (last visited April 22, 2019).; Shea Penland et al., Process Classification of Coastal Land Loss Between 1932 and 1990 in the Mississippi River Delta Plain, Southeastern Louisiana, U.S. Geological Survey (2000), https://pubs.
    usgs.gov/of/2000/of00-418/ofr00-418.pdf. (last visited April 22, 2019); Oliver A. Houck, The Reckoning: Oil and Gas Development in the Louisiana Coastal Zone, 28 Tul. Envtl. L.J. 185, 186 (2015).
  3. . See, e.g., Vintage Assets, Inc. v. Tenn. Gas Pipeline Co., No. 16-713, 2017 WL 3706314, at *1 (E.D. La. Aug. 28, 2017); Rose v. Tenn. Gas Transmission Co., No. 05-3102, 2008 WL 11353629, at *2 (E.D. La. Nov. 12, 2008); Terrebonne Par. Sch. Bd. v. Columbia Gulf Transmission Co., 290 F.3d 303, 308 (5th Cir. 2002).
  4. . Vanessa Schipani, Land Loss in Louisiana (Mar. 20, 2017), https://www.
    factcheck.org/2017/03/land-loss-in-louisiana/.
  5. . Catherine Traywick, Louisiana’s Sinking Coast is a $100 Billion Nightmare for Big Oil, Bloomberg (Aug. 17, 2016), https://www.bloomberg.com/news/
    features/2016-08-17/louisiana-s-sinking-coast-is-a-100-billion-nightmare-for-big-oil.
  6. . Brian Palmer, Who Should Pay to Restore the Louisiana Coastline?, Nation Resources Defense Council (Aug. 26, 2015), https://www.nrdc.org/onearth/who-should-pay-restore-louisiana-coastline.
  7. . Bd. of Commissioners of Se. Louisiana Flood Prot. Auth.-E. v. Tenn. Gas Pipeline Co., 850 F.3d 714, 729 (5th Cir. 2017).
  8. . The federal government defines wetlands as “areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.” Section 404 of the Clean Water Act: How Wetlands are Defined and Identified, United States Geological Survey, https://www.epa.gov/cwa-404/section-404-clean-water-act-how-wetlands-are-defined-and-identified (last visited Apr. 22, 2019).
  9. . Wetland Functions and Values, Environmental Protection Agency, https://www.epa.gov/sites/production/files/2016-02/documents/wetlandfunctionsvalue
    s.pdf (last visited Apr. 22, 2019).
  10. . Louisiana Coastal Wetlands: A Resource At Risk, United States Geological Survey, https://pubs.usgs.gov/fs/la-wetlands/ (last visited Apr. 22, 2019).
  11. . Louisiana Coastal Wetlands: A Resource At Risk, United States Geological Survey, https://pubs.usgs.gov/fs/la-wetlands/ (last visited Apr. 22, 2019).
  12. . Louisiana’s Rate of Coastal Wetland Loss Continues to Slow (Jul. 12, 2017), at 3, United States Geological Survey, https://www.usgs.gov/news/usgs-louisiana-s-rate-coastal-wetland-loss-continues-slow.
  13. . Tristan Baurick, Is Louisiana really losing a football field of land per hour?, The Times Picayune (May 12, 2017), https://www.nola.com/news/environment/
    article_3128024a-cc03-57a0-9b37-18f5eb519d4b.html.
  14. . Vanessa Schipani, Land Loss in Louisiana (Mar. 20, 2017), https://www.fact
    check.org/2017/03/land-loss-in-louisiana/; Louisiana Coastal Wetlands: A Resource At Risk, United States Geological Survey, https://pubs.usgs.gov/fs/la-wetlands/ (last visited Apr. 22, 2019).
  15. . Vanessa Schipani, Land Loss in Louisiana (Mar. 20, 2017), https://www.fact
    check.org/2017/03/land-loss-in-louisiana/.
  16. . What is a Wetland, Izaak Walton League of America, https://www.iwla.
    org/conservation/water/save-our-streams/what-is-a-wetland (last visited Apr. 22, 2019).
  17. . Id.
  18. . Vanessa Schipani, Land Loss in Louisiana (Mar. 20, 2017), https://www.fact
    check.org/2017/03/land-loss-in-louisiana/.
  19. . Our Plan, Coastal Protection and Restoration Authority, http://coastal.la.gov/our-plan/ (last visited Apr. 22, 2019); Structure, Coastal Protection and Restoration Authority, http://coastal.la.gov/about/structure/ (last visited Apr. 22, 2019).
  20. . Brian Palmer, Who Should Pay to Restore the Louisiana Coastline?, Nation Resources Defense Council (Aug. 26, 2015), https://www.nrdc.org/onearth/who-should-pay-restore-louisiana-coastline.
  21. . Id.
  22. . Id.
  23. . Id.
  24. . Coastal Louisiana, United States Geological Survey 385, 397, https://pubs.er.usgs.gov/publication/70204694 (last visited Apr. 22, 2019).
  25. . Id.
  26. . Id.
  27. . See, e.g., Vintage Assets, Inc. v. Tenn. Gas Pipeline Co., No. 16-713, 2017 WL 3706314, at *1 (E.D. La. Aug. 28, 2017); Rose v. Tenn. Gas Transmission Co., No. 05-3102, 2008 WL 11353629, at *2 (E.D. La. Nov. 12, 2008); Terrebonne Par. Sch. Bd. v. Columbia Gulf Transmission Co., 290 F.3d 303, 308-09 (5th Cir. 2002).
  28. . In Vintage, the plaintiff’s land was worth only $200 per acre. Vintage Assets, Inc. v. Tenn. Gas Pipeline Co., No. 16-713, 2018 WL 2078606, at *4 (E.D. La. May 4, 2018), judgment vacated, appeal dismissed sub nom. Vintage Assets, Inc. v. Tenn. Gas Pipeline Co., 18-30688, 2018 WL 6264375 (5th Cir. Oct. 2, 2018). The estimated cost of restoring the property in Vintage was $60,000 per acre. Vintage Assets, Inc. v. Tenn. Gas Pipeline Co., No. 2:16-cv 00713, 2017 WL 10742335 (E.D. La. Nov. 17, 2017).
  29. . Bd. of Comm’rs of Se. Louisiana Flood Prot. Auth.-E. v. Tenn. Gas Pipeline Co., 850 F.3d 714, 720 (5th Cir. 2017).
  30. . Id. at 721.
  31. . Id. at 720.
  32. . Nathaniel Rich, The Most Ambitious Environmental Lawsuit Ever, N.Y. Times (Oct. 14, 2014), https://www.nytimes.com/interactive/2014/10/02/magazine/
    mag-oil-lawsuit.html.
  33. . Bd. of Comm’rs of Se. Louisiana Flood Prot. Auth.-E. v. Tenn. Gas Pipeline Co., 850 F.3d 714, 731 (5th Cir. 2017).
  34. . The Flood Protection Authority also argued that the oil and gas industry was liable for nuisance, but the Fifth Circuit concluded that the Flood Protection Authority failed to establish that the industry was a “neighbor” and dismissed the claim. Bd. of Comm’rs of Se. Louisiana Flood Prot. Auth.-E. v. Tenn. Gas Pipeline Co., 850 F.3d 714, 731 (5th Cir. 2017).
  35. . Roberts v. Benoit, 605 So. 2d 1032, 1044-45 (La. 1991), on reh’g (May 28, 1992).
  36. . Bd. of Comm’rs of Se. Louisiana Flood Prot. Auth.-E., 850 F.3d at 729; La. Rev. Stat. Ann. § 38:330.1 (2019).
  37. . Barasich v. Columbia Gulf Transmission Co., 467 F. Supp. 2d 676, 692 (E.D. La. 2006).
  38. . See, e.g., Vintage Assets, Inc. v. Tenn. Gas Pipeline Co., No. 16-713, 2017 WL 3706314, at *1 (E.D. La. Aug. 28, 2017; Rose v. Tenn. Gas Transmission Co., No. 05-3102, 2008 WL 11353629, at *2 (E.D. La. Nov. 12, 2008); Terrebonne Par. Sch. Bd. v. Columbia Gulf Transmission Co., 290 F.3d 303, 308 (5th Cir. 2002).
  39. . Louisiana’s servitudes are similar to the common law concept of easement used in the other forty-nine states. Rose, 508 F.3d at 776–77.
  40. . A. N. Yiannopoulos & Ronald J. Scalise Jr., § 1.1 in 4 La. Civ. L. Treatise (4th ed. 2018).
  41. . There are two primary categories of servitudes: predial and personal. La. Civ. Code Ann. art. 533 (2019). A predial servitude is a charge on a servient estate for the benefit of a dominant estate. La. Civ. Code Ann. art. 646 (2019). In contrast, a personal servitude is a charge on a thing for the benefit of a natural or juridical person. La. Civ. Code Ann. art. 534 (2019). Although a servitude agreement may purport to create a predial servitude, if the servitude is in favor of a person, then it is actually a personal servitude known as a right of use. La. Civ. Code Ann. art. 733 (2019); La. Civ. Code Ann. art. 734 (2019); Sustainable Forests, L.L.C. v. Harrison, 846 So. 2d 1283, 1285 (La. App. 2 Cir. 5/22/03). Even if a servitude agreement claims to create a predial servitude, if it conveys a benefit to a natural or juridical person, then it is actually a personal servitude. Vintage Assets, Inc. v. Tenn. Gas Pipeline Co. LLC, No. 16-713, 2018 WL 2078606, at *6 (E.D. La. May 4, 2018), judgment vacated, appeal dismissed sub nom. Vintage Assets, Inc. v. Tenn. Gas Pipeline Co., 18-30688, 2018 WL 6264375 (5th Cir. Oct. 2, 2018).
  42. . Vintage Assets, Inc., 2018 WL 2078606, at *6.
  43. . Vanessa Schipani, Land Loss in Louisiana (Mar. 20, 2017), https://www.fact
    check.org/2017/03/land-loss-in-louisiana/.
  44. . See, e.g., Vintage Assets, Inc. v. Tenn. Gas Pipeline Co., No. 16-713, 2017 WL 3706314, at *1 (E.D. La. Aug. 28, 2017); Rose v. Tenn. Gas Transmission Co., No. 05-3102, 2008 WL 11353629, at *2 (E.D. La. Nov. 12, 2008); Terrebonne Par. Sch. Bd. v. Columbia Gulf Transmission Co., 290 F.3d 303, 309 (5th Cir. 2002).
  45. . St. Martin v. Mobil Expl. & Producing U.S. Inc., 224 F.3d 402, 409-10 (5th Cir. 2000).
  46. . St. Martin v. Quintana Petroleum Corp., CIV. A. 98-2095, 2001 WL 175226 (E.D. La. Feb. 21, 2001), aff’d, 32 Fed. App’x 127 (5th Cir. 2002).
  47. . Id. at *1; Terrebonne Par. Sch. Bd. v. Columbia Gulf Transmission Co., 290 F.3d 303, 313-14 (5th Cir. 2002).
  48. . St. Martin, 2001 WL 175226, at *1.
  49. . Id.
  50. . Id.
  51. . Id. at *2.
  52. . Id.at *3.
  53. . St. Martin v. Quintana Petroleum Corp., CIV. A. 98-2095, 2001 WL 175226, at *3 (E.D. La. Feb. 21, 2001), aff’d, 32 Fed. App’x 127 (5th Cir. 2002).
  54. . Terrebonne Par. Sch. Bd. v. Columbia Gulf Transmission Co., 290 F.3d 303, 313-14 (5th Cir. 2002).
  55. . Id. at 309-13.
  56. . Terrebonne Par. Sch. Bd. v. Columbia Gulf Transmission Co., 290 F.3d 303, 313 (5th Cir. 2002).
  57. . Id. at 313-14.
  58. . See Vintage Assets, Inc. v. Tenn. Gas Pipeline Co., No. 16-713, 2017 WL 3706314, at *1 (E.D. La. Aug. 28, 2017).
  59. . La. Civ. Code Ann. art. 645 (2019).
  60. . La. Civ. Code Ann. art. 646 (2019); La. Civ. Code Ann. art. 656 (2019).
  61. . Terrebonne Par. Sch. Bd. v. Columbia Gulf Transmission Co., 290 F.3d 303, 316 (5th Cir. 2002).
  62. . La. Civ. Code Ann. art. 730 (2019).
  63. . La. Civ. Code Ann. art. 645 (2019); La. Civ. Code Ann. art. 646 (2019); La. Civ. Code Ann. art. 656 (2019); Terrebonne Par. Sch. Bd., 290 F.3d at 316. In support of this interpretation, Louisiana Civil Code article 642 also states that a right of use includes the rights contemplated or necessary to enjoyment provided that a greater burden is not imposed on the property unless stipulated in the agreement. La. Civ. Code Ann. art. 642 (2019); La. Civ. Code Ann. art. 730 (2019).
  64. . La. Civ. Code Ann. art. 730 (2019).
  65. . See Vintage Assets, Inc. v. Tenn. Gas Pipeline Co., No. 16-713, 2017 WL 3701215, at *7 (E.D. La. Aug. 22, 2017).
  66. . See id. at *1.; Mark Schleifstein, Gas Pipeline Firms Must Pay for Some Canal Erosion, Federal Judge Rules, Times-Picayune (Aug. 24, 2017, 4:36 AM), https://www.nola.com/environment/2017/08/gas_pipelines_must_pay_for_som.html.
  67. . See Vintage Assets, Inc., 2017 WL 3701215, at *7.
  68. . See id.
  69. . Vintage Assets, Inc. v. Tenn. Gas Pipeline Co., No. 18-30688, 2018 WL 6264375, at *1 (5th Cir. Oct. 2, 2018).
  70. . See id.
  71. . Ryan v. S. Nat. Gas Co., 879 F.2d 162, 163 (5th Cir. 1989).
  72. . Id. The Fifth Circuit never decided whether the “servitude agreement” granted a predial servitude or a right of use, but the fact that the servitude agreement never references another piece of property owned by the defendants indicates that it was a right of use. Id.
  73. . Id.
  74. . Id. at 165.
  75. . Id. at 163.
  76. . Ryan v. S. Nat. Gas Co., 879 F.2d 162, 164 (5th Cir. 1989).
  77. . Id.
  78. . Id. at 163.
  79. . See discussion infra Section V.A.
  80. . Vintage Assets, Inc. v. Tenn. Gas Pipeline Co., No. 16-713, 2017 WL 3701215, at *7 (E.D. La. Aug. 22, 2017).
  81. . Id.
  82. . See, e.g., Vintage Assets, Inc. v. Tenn. Gas Pipeline Co., No. 16-713, 2017 WL 3706314, at *1 (E.D. La. Aug. 28, 2017); Rose v. Tenn. Gas Transmission Co., No. 05-3102, 2008 WL 11353629, at *2 (E.D. La. Nov. 12, 2008); Terrebonne Par. Sch. Bd. v. Columbia Gulf Transmission Co., 290 F.3d 303, 308-09 (5th Cir. 2002).
  83. . When a contractual duty is breached under Louisiana law, a defendant may be sued under the theories of breach of contract or tort depending on whether the nature of the breach was active or passive. An active breach is a breach where the defendant performed a contractual obligation negligently, whereas a passive breach is a breach where the defendant failed to perform a contractual obligation. If the breach was active, then the plaintiff may sue under either a theory of breach of contract or tort. However, if the breach was passive, then the plaintiff may only sue for breach of contract. Huggs, Inc. v. LPC Energy, Inc., 889 F.2d 649, 655 (5th Cir. 1989).
  84. . Under Louisiana law, tracts of land and their component parts are known as immovables, which is the functional equivalent of the common law’s real property. La. Civ. Code Ann. art. 462 (2019). Servitudes are immovable property. La. Civ. Code Ann. art. 461 (2019).
  85. . Roman Catholic Church of Archdiocese of New Orleans v. Louisiana Gas Serv. Co., 618 So. 2d 874, 879-80 (La. 1993).
  86. . Corbello v. Iowa Prod., 2002-0826, p. 7 (La. 2/25/03); 850 So. 2d 686, 694, as clarified on reh’g (June 20, 2003).
  87. . La. Civ. Code Ann. art. 1986 (2019).
  88. . J. Weingarten, Inc. v. Northgate Mall, Inc., 404 So. 2d 896, 901 (La. 1981).
  89. . Charter Sch. of Pine Grove, Inc. v. St. Helena Par. Sch. Bd., 2007-2238, pp. 14-15 (La. App. 1 Cir. 2/19/09); 9 So. 3d 209, 222.
  90. . A usufructuary is bound to make repairs are necessary due to the usufructuary’s fault or neglect at his own cost. La. Civ. Code Ann. art. 577 (2019). The naked owner may compel the usufructuary to make repairs for which the usufructuary is responsible. La. Civ. Code Ann. art. 579 (2019). Therefore, the holder of a right of use is obligated to repair the landowner’s land, at their expense, where their failure to maintain the canals made the repairs necessary. Vintage Assets, Inc. v. Tenn. Gas Pipeline Co., No. 16-713, 2018 WL 2078606, at *6 (E.D. La. May 4, 2018), judgment vacated, appeal dismissed sub nom. Vintage Assets, Inc. v. Tenn. Gas Pipeline Co., 18-30688, 2018 WL 6264375 (5th Cir. Oct. 2, 2018).
  91. . In Vintage, the plaintiffs’ land was worth only $200 per acre. Vintage Assets, Inc., 2018 WL 2078606, at *4. The estimated cost of restoring the property in Vintage was $60,000 per acre. Vintage Assets, Inc. v. Tenn. Gas Pipeline Co., No. 2:16-cv 00713, 2017 WL 10742335 (E.D. La. Nov. 17, 2017).
  92. . In Vintage, the plaintiffs’ land was worth only $200 per acre. Vintage Assets, Inc. v. Tennessee Gas Pipeline Co., No. 16-713, 2018 WL 2078606, at *4 (E.D. La. May 4, 2018), judgment vacated, appeal dismissed sub nom. Vintage Assets, Inc. v. Tennessee Gas Pipeline Co., No. 18-30688, 2018 WL 6264375 (5th Cir. Oct. 2, 2018).
  93. . Corbello v. Iowa Prod., 2002-0826, p. 7 (La. 2/25/03); 850 So. 2d 686, 694, as clarified on reh’g (June 20, 2003).
  94. . La. Civ. Code Ann. art. 1997 cmt. (b) (2019).
  95. . Adams v. First Nat. Bank of Commerce, 93-2346, p. 4 (La. App. 4 Cir. 9/29/94); 644 So. 2d 219, 222.
  96. . La. Civ. Code Ann. art. 1996 (2019).
  97. . Saul Litvinoff & Ronald J. Scalise Jr., § 5.11 in 6 La. Civ. L. Treatise (2d ed. 2018).
  98. . La. Civ. Code Ann. art. 1997 (2019).
  99. . Vintage Assets, Inc. v. Tennessee Gas Pipeline Co., No. 16-713, 2018 WL 2078606, at *4 (E.D. La. May 4, 2018), judgment vacated, appeal dismissed sub nom. Vintage Assets, Inc. v. Tennessee Gas Pipeline Co., No. 18-30688, 2018 WL 6264375 (5th Cir. Oct. 2, 2018).
  100. . Id.
  101. . Id. at *1.
  102. . Oliver A. Houck, The Reckoning: Oil and Gas Development in the Louisiana Coastal Zone, 28 Tul. Envtl. L.J. 185, 186 (2015).
  103. . Vintage Assets, Inc., 2018 WL 2078606, at *7.
  104. . Corbello v. Iowa Prod., 2002-0826, pp. 18-21 (La. 2/25/03); 850 So. 2d 686, 700-01, as clarified on reh’g (June 20, 2003).
  105. . Id.
  106. . However, the subsequent purchaser rule could prevent purchasers of land burdened by a canal servitude from bringing claims against the servitude holder for damage done to the land prior to the purchaser’s ownership of the land. See Christopher Swanson, Coastal Remediation in Louisiana Through “Legacy” Lawsuits—Thwarted by A Confusion Between Real and Personal Rights?, 29 Tul. Envtl. L.J. 345 (2017).
  107. . Bd. of Commissioners of Se. Louisiana Flood Prot. Auth.-E. v. Tenn. Gas Pipeline Co., 850 F.3d 714, 720 (5th Cir. 2017).
  108. . Id.
  109. . Health Net, Inc. v. Wooley, 534 F.3d 487, 495 (5th Cir. 2008).
  110. . Throughout the entire decision, the Fifth Circuit ambiguously referred to the servitude agreement without ever stating whether the servitude was a right of use or a predial servitude. Ryan v. S. Nat. Gas Co., 879 F.2d 162 (5th Cir. 1989). In addition, the Fifth Circuit erroneously referred to the plaintiff’s estate as the dominant estate; however, the estate that a servitude is situated upon is the servient estate. Ryan v. S. Nat. Gas Co., 879 F.2d 162, 164 (5th Cir. 1989); La. Civ. Code Ann. art. 646 (2019).
  111. . La. Civ. Code Ann. art. 2030 (2019).
  112. . Town of Newton v. Rumery, 480 U.S. 386, 392, (1987).
  113. . Vanessa Schipani, Land Loss in Louisiana (Mar. 20, 2017), https://www.fact
    check.org/2017/03/land-loss-in-louisiana/; National Water Summary Wetland Resources: Louisiana, United States Fish and Wildlife Services, https://www.
    fws.gov/wetlands/data/Water-Summary-Reports/National-Water-Summary-Wetland-Resources-Louisiana.pdf (last visited Apr. 22, 2019).
  114. . Our Plan, Coastal Protection and Restoration Authority, http://
    coastal.la.gov/our-plan/ (last visited Apr. 22, 2019)
  115. . Nathaniel Rich, The Most Ambitious Environmental Lawsuit Ever, N.Y. Times (Oct. 14, 2014), https://www.nytimes.com/interactive/2014/10/02/magazine/
    mag-oil-lawsuit.html.
  116. . Vanessa Schipani, Land Loss in Louisiana (Mar. 20, 2017), https://www.fact
    check.org/2017/03/land-loss-in-louisiana/; Facts for Features: Hurricane Katrina 10th Anniversary: Aug. 29, 2015, United States Census Bureau (July 29, 2015), https://
    www.census.gov/newsroom/facts-for-features/2015/cb15-ff16.html.
  117. . Oliver A. Houck, The Reckoning: Oil and Gas Development in the Louisiana Coastal Zone, 28 Tul. Envtl. L.J. 185, 186 (2015).
  118. . La. Civ. Code Ann. art. 2034 (2019).
  119. . See Jae-Young Ko et al., Impacts on Oil and Gas Activities on Coastal Wetland Loss in the Mississippi Delta, 47 Ocean & Coastal Mgmt. 597, 598 (2004).
  120. . Economic Impact, Louisiana Mid-Content Oil and Gas Association, http://www.lmoga.com/issues-initiatives/economic-impact/ (last visited Apr. 22, 2019).
  121. . Roman Catholic Church of Archdiocese of New Orleans v. Louisiana Gas Serv. Co., 618 So. 2d 874, 879-80 (La. 1993).
  122. . Corbello v. Iowa Prod., 2002-0826, pp. 8-10 (La. 2/25/03); 850 So. 2d 686, 695, as clarified on reh’g (June 20, 2003); John A. Lovett, Doctrines of Waste in a Landscape of Waste, 72 Mo. L. Rev. 1209, 1238 (2007).
  123. . Corbello v. Iowa Prod., 2002-0826, pp. 8-10 (La. 2/25/03); 850 So. 2d 686, 695, as clarified on reh’g (June 20, 2003).
  124. . Id. at pp.17-21.
  125. . Corbello v. Iowa Prod., 2002-0826, p. 19-21 (La. 2/25/03); 850 So. 2d 686, 701, as clarified on reh’g (June 20, 2003).
  126. . La. Rev. Stat. Ann. § 30:29 (2019).
  127. . Id.
  128. . Id.
  129. . State v. Louisiana Land & Expl. Co., 2012-0884, pp. 15-16 (La. 1/30/13); 110 So. 3d 1038, 1049.
  130. . La. Rev. Stat. Ann. § 30:29 (2019).
  131. . Corbello v. Iowa Prod., 2002-0826, p. 17-21 (La. 2/25/03); 850 So. 2d 686, 700-01, as clarified on reh’g (June 20, 2003).
  132. . La. Rev. Stat. Ann. § 30:29 (2019). Christopher Swanson arrived at the same conclusion in an article published in the Tulane Environmental Law Journal. See Christopher Swanson, Coastal Remediation in Louisiana Through “Legacy” Lawsuits—Thwarted by A Confusion Between Real and Personal Rights?, 29 Tul. Envtl. L.J. 345, 351 (2017).
  133. . State v. Louisiana Land & Expl. Co., 2012-0884, pp. 15-16 (La. 1/30/13); 110 So. 3d 1038, 1049.
  134. . La. Rev. Stat. Ann. § 30:29 (2019).
  135. . Compare Bd. of Commissioners of Se. Louisiana Flood Prot. Auth.-E. v. Tenn. Gas Pipeline Co., 850 F.3d 714, 720 (5th Cir. 2017), with Vintage Assets, Inc. v. Tenn. Gas Pipeline Co., No. 16-713, 2017 WL 3601215, at *7 (E.D. La. Aug. 22, 2017).
  136. . Vintage Assets, Inc. v. Tennessee Gas Pipeline Co., No. 18-30688, 2018 WL 6264375 (5th Cir. Oct. 2, 2018).
  137. . Corbello v. Iowa Prod., 2002-0826, pp. 17-19 (La. 2/25/03); 850 So. 2d 686, 700, as clarified on reh’g (June 20, 2003).
  138. * The author would like to thank Professor John Lovett for his feedback throughout the writing of this Comment.