REVERSING COASTAL LAND LOSS: ECONOMIC, LEGAL, AND POLICY CONSIDERATIONS

Abstract

This Article focuses on two lawsuits that challenged the major contributors to the coastal land loss that caused Hurricane Katrina to trigger widespread destruction of property, lives, and neighborhoods. At the heart of the Article is a critique of In re Katrina Canal Breaches Consolidated Litigation and Barasich v. Columbia Gulf Transmission Co. Canal Breaches highlights the danger of hobbling tort law’s ability to safeguard citizens and property by rendering unnecessary the insertion of numbers for liability risk into budget calculations. A hard-look deference and failure-to-warn test is proposed for future public-safety cases brought under the Federal Torts Claim Act. Because the Barasich court justified its dismissal of the oil, gas, and pipeline defendants by its interpretation of Terrebonne Parish School Board v. Castex Energy, Inc., this Article places Castex in its historical and jurisprudential context to prevent future courts from making analogous mistakes when grappling with Louisiana law. Specifically, this Article identifies the factual circumstances that would trigger an exploration and production company defendant’s duty to backfill a canal under the Louisiana Civil Code’s good- administrator standard. Since Hurricane Katrina, the Louisiana Supreme Court has made significant rulings and the Louisiana legislature has enacted important legislation that, collectively, has modernized and made more consistent legal doctrine in the field of implied restoration duties. The Article concludes with a suggestion: if exploration and production company defendants are going to continue to benefit from a form of quasi-immunity, then they should be held accountable under the law of takings.