Keogh Cox Maintains Its Victory at the U.S. Supreme Court

Keogh Cox obtained dismissal of the suit asserted against the Sabine River Authority of Louisiana and Entergy by numerous plaintiff landowners alleging flood damages.  Plaintiffs alleged their state law negligence and constitutional claims were preserved under Section 10(c) of the Federal Power Act [16 U.S.C. § 803], which provides that the licensee is liable for “all damages occasioned by the … operation of the project works.” Because the Toledo Bend Dam was not designed or licensed as a flood control dam, Keogh Cox argued on behalf of its clients that this provision does not permit claims based on conduct not required under the FERC license. To do so, Keogh Cox argued, amounts to a collateral attack of the FERC license and wrests operational control of the licensed project away from the Federal Energy Regulatory Commission [FERC] and places it in the hands of a trial judge. The U.S. District Court for the Western District of Louisiana agreed with Keogh Cox’s position. On appeal, the Fifth Circuit recognized the issue as one of first impression in the circuit. It found that the plaintiff’s claims were conflict preempted by the FPA, and maintained that Section 10(c) of the FPA “cannot be interpreted so broadly as to allow state tort law to supplant FERC’s exclusive control of dam operations.” Plaintiffs filed a writ of certiorari to the United States Supreme Court, and on April 21, 2014, the U.S. Supreme Court denied writs, thereby preserving the Fifth Circuit’s ruling. The Fifth Circuit’s interpretation of the scope of FPA Section 10(c)’s “savings clause” for damage claims against FERC licensees will likely become very important precedent throughout the United States. Keogh Cox is proud of its efforts in achieving this victory for the Sabine River Authority and the entire hydropower industry. John P. Wolff, III, Nancy B. Gilbert, Martin E. Golden and Virginia J. McLin were the attorneys handling the case for Keogh Cox.

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