Using a Congressional Reference Case to Seek Funding for Louisiana Coastal Restoration
As I have stated on numerous occasions in this blog, the federal government is liable for the damage to and loss of Louisiana's coastal wetlands. I believe that case could be made under the Federal Tort Claims Act in a federal district court in Louisiana. If, however, the people of Louisiana find this approach too antagonistic a stance toward the federal government, an alternative less adversarial approach exists.
Congress has created a means for the federal government to analyze its own culpability for the damages it causes without agreeing in advance to pay for those damages. The federal statutory code provides for Congressional reference cases at 28 USC sec. 2509.
The provision allows either house of Congress by resolution to ask the United States Court of Federal Claims to engage in fact finding and legal analysis with regard to a claim or potential claim for damages against the United States. The idea is that the Court of Federal Claims would determine whether a legitimate legal claim for damages would stand under law in the absence of the federal government's sovereign immunity and/or the expiration of the statute of limitations.
In a Congressional reference case, the Court of Federal Claims would undertake fact finding just like a regular court would receiving evidence in the form of testimony, documents, and other admissible things. After the conclusion of the fact finding, i.e., the trial, the judge would write a report just like a legal opinion assessing the evidence presented and applying the law to the facts. In the report, the judge would advise Congress on whether the claim would be legally valid in the absence of the federal government's sovereign immunity and/or if the claim were made timely.
Congress is given the report and has the option of paying the claim by Congressional act or declining to pay the claim. The Court of Federal Claims report is only advisory.
While this process has probably never been used for assessing any claim as complex as the loss of coastal wetlands in Louisiana, it could certainly be done. With the referral of the claim by either house of the Congress to the Court of Federal Claims, the State of Louisiana and the various other stakeholders with interests in coastal Louisiana could present their case to the Court of Federal Claims asserting that the federal government's actions in the management of the Mississippi River drainage basin system are a proximate cause of the loss of wetlands in Louisiana and the federal government would be liable for that damage but for sovereign immunity and/or a claim that the applicable statute of limitations has passed.
If the report from the Court of Federal Claims was favorable, the people of Louisiana would have a compelling case that the federal government should pay monetary damages for the destruction of coastal Louisiana and that the federal government is obligated to pay to restore the coastal wetlands in Louisiana.
The use of a Congressional reference case would be a way to gain moral leverage with the federal government regarding their role in the loss of coastal wetlands in Louisiana.
