The Barataria-Terrebonne National Estuary has lost over 934 square miles of land since 1932, causing a mass exodus of communities within the estuary, including the Biloxi-Chitimacha-Choctaw tribe of Isle de Jean Charles. Though some of this erosion can be attributed to rising sea levels and natural subsidence, scientists now realize that the majority of this loss has been caused by human development. Specifically, navigation and pipeline canals dredged by the oil and natural gas industry are alleged to be responsible for as much as 89% of all land lost within Louisiana before 1983. This ongoing land loss has led to numerous attempts to hold developers liable for the damage, but the Louisiana Code does not support non-adjacent erosion claims under theories of tortious nuisance, nor can plaintiffs succeed as third-party beneficiaries from the licenses and permits issued to developers. Federal coastal legislation—sometimes used as a last resort—is similarly ineffective in land loss suits by individual litigants. Though some recent federal decisions would support a Fifth Amendment takings claim for non-adjacent erosion to the extent that causation could be proven, myriad hurdles stand in the way. A six-year statute of limitations on takings claims would prevent most successful claims, and the 10,000-mile network of canals in Louisiana would preclude practical causation determinations. Worse, the damages would be limited to the land actually taken: a few feet of property in most instances. Further, compensating a landowner for eroding shoreline does nothing to mitigate future erosion, nor does it combat the threat that sea level rise might claim these coastal communities even before the land erodes from beneath them. Coastal communities suffering from land loss frequently condition coastal development permits on impact fees that go to wetlands restoration funds. This Comment proposes that these coastal impact fees be drastically elevated to include mandatory contributions to a relocation fund for refugees of coastal land loss. Such a fund would be an adequate remedy for those unable to undergo the extensive causation burdens of viable takings claims and for whom claims in tortious nuisance and contract can provide no relief. Most importantly, it would place the cost of relocation on those accountable—oil and natural gas companies—instead of taxpayers.
Canals, Community, and Coastal Permits: Overcoming Inadequate Remedies for Erosion Within the Barataria-Terrebonne National Estuary,
Emory L. J.
Available at: https://scholarlycommons.law.emory.edu/elj/vol70/iss3/3