LOUISIANA AGENCY TO SUE ENERGY COMPANIES FOR WETLAND DAMAGE - New York Times By John Schwartz
Louisiana officials will file a lawsuit on Wednesday against dozens of energy companies, hoping that the courts will force them to pay for decades of damage to fragile coastal wetlands that help buffer the effects of hurricanes on the region.
“This protective buffer took 6,000 years to form,” the state board that oversees flood-protection efforts for much of the New Orleans area argued in court filings, adding that “it has been brought to the brink of destruction over the course of a single human lifetime.”
The lawsuit, to be filed in civil district court in New Orleans by the board of the Southeast Louisiana Flood Protection Authority-East, argues that the energy companies, including BP and Exxon Mobil, should be held responsible for fixing damage caused by cutting a network of thousands of miles of oil and gas access and pipeline canals through the wetlands. The suit alleges that the network functioned “as a mercilessly efficient, continuously expanding system of ecological destruction,” killing vegetation, eroding soil and allowing salt water to intrude into freshwater areas.
“What remains of these coastal lands is so seriously diseased that if nothing is done, it will slip into the Gulf of Mexico by the end of this century, if not sooner,” the filing stated.
A spokeswoman for BP said that the company would have no comment. A spokesman for Exxon Mobil said the company had no comment at this time.
Gladstone N. Jones III, a lawyer for the flood protection authority board, said the plaintiffs were seeking damages equal to “many billions of dollars. Many, many billions of dollars.”
Mr. Jones acknowledges that the government, which has strong protection against lawsuits, might bear some responsibility for loss of wetlands. But, he noted, Washington had spent billions on repairs and strengthening hurricane defenses since the system built by the Army Corps of Engineers failed after Hurricane Katrina. By taking the oil and gas companies to court, he said, “we want them to come and pay their fair share.”
The role of the industry is well documented in scientific studies and official reports. Remediation efforts called for by the state’s Coastal Protection and Restoration Authority in a 2012 report note, “Dredging canals for oil and gas exploration and pipelines provided our nation with critical energy supplies, but these activities also took a toll on the landscape, weakening marshes and allowing salt water to spread higher into coastal basins.”
The suit argues that the environmental buffer serves as an essential protection against storms by softening the blow of any incoming hurricane before it gets to the line of levees and flood walls and gates and pumps maintained and operated by the board. Losing the “natural first line of defense against flooding” means that the levee system is “left bare and ill-suited to safeguard south Louisiana.”
The “unnatural threat” caused by exploration, the lawsuit states, “imperils the region’s ecology and its people’s way of life – in short, its very existence.”
John M. Barry, an author and a member of the flood protection authority board, noted that there were other causes of coastal wetlands loss, including decisions by the Corps of Engineers over the decades to design navigation and flood control systems for the Mississippi River that kept its waters from delivering the sediment that once nourished the wetlands. Still, he said, “We just want them to fix what they broke.”
The lawsuit relies on well-established legal theories of negligence and nuisance, as well as elements of law more particular to the Louisiana Civil Code, including “Servitude of Drain,” which relates to changing patterns of water flow and drainage across the Bayou State. Even though the industry has been producing oil and gas for 100 years, because the damage is continuing to occur, the board argues, the statute of limitations should not apply.
Walter Olson, a Cato Institute expert on litigation who often expresses skepticism about civil litigation, said that he could not comment extensively without seeing the filing, but he said, “It sounds like the sort of thing you couldn’t dismiss out of hand.” He said some environmental lawsuits, like one against power companies over the effects of climate change on sea-level rise and its effect on the tiny Alaskan town of Kivalina, incorporate creative legal arguments that may not stand up in court.
“It’s not Kivalina,” he said, if the plaintiffs can point to specific people or entities causing specific damage. He added that proving causation in court, however, “can be a big headache.”
The state official who oversees coastal management for Louisiana sounded a skeptical note. Garrett Graves, the chairman of Louisiana's Coastal Protection and Restoration Authority, issued a statement that while he and his colleagues had not yet read the lawsuit and could not comment on its merits, "The best way to direct oil and gas company revenues into our coast is through revenue sharing from offshore energy production" through laws like the Gulf of Mexico Energy Security Act of 2006, which directs a portion of federal income from offshore oil and gas exploration and production into coastal restoration and other environmental projects. "We are encouraged by recent efforts in Congress" to increase those funds, Mr. Graves said, adding, "More needs to be done.”
No other state agencies have joined the lawsuit, and Mr. Barry said that during preparation of the suit, his board did not discuss the case with other levee boards. The politically powerful oil and gas industries might bring pressure to bear on others who might be inclined to join, Mr. Jones said, but now that the case has been filed, “it really raises the question that’s going to be asked at a whole lot of boards across Southern Louisiana: can we really afford not to do this?”
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Permalink Reply by Skip Peel - Mineral Consultant on
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Louisiana Attorney General offers defense of role in Big Oil lawsuit
Jan. 10, 2014 Kevin McGill Associated Press
NEW ORLEANS — Attorney General Buddy Caldwell is seeking dismissal of a lawsuit that says he illegally approved a New Orleans-area flood protection board's contract with lawyers who are suing the oil and gas industry over coastal wetlands loss.
Caldwell's office on Thursday released a copy of his state court response to the lawsuit filed last month by the Louisiana Oil and Gas Association. The filing says Caldwell never approved the contract between the Southeast Louisiana Flood Protection Authority-East and private lawyers led by Gladstone Jones of New Orleans. It says Caldwell did review the board's resolution to hire the lawyers, making sure it met legal requirements — a task he says he is required by law to do.
The flood board's lawsuit against 97 oil and gas companies was filed last summer. It says the companies' coastal drilling activities contributed to the erosion of wetlands, diminishing a natural hurricane protection buffer for New Orleans.
The SLFPAE's lawsuit drew immediate fire from the industry when it was filed in July.
Gov. Bobby Jindal blasted the lawsuit as a windfall for trial lawyers and his coastal protection chief, Garret Graves, said the suit would undermine the state's work with the industry to address coastal issued. An association of state levee districts voted to oppose the suit.
Since then, however, two coastal parishes heavily dependent on the industry have filed lawsuits of their own raising similar issues.
LOGA's suit says that because the flood board is a state governmental subdivision, the contingency fees in the flood board's contract with the Jones legal team would be deducted from money due to the state. LOGA says Caldwell approved the contract and thereby unconstitutionally usurped the Legislature's authority to appropriate state money.
Caldwell argued in Thursday's filing in state court in Baton Rouge that the flood board is not a state entity but an independent political subdivision, so the money in question would not be considered state funds.
Caldwell also denied LOGA's claim that the hiring of the outside lawyers was illegal because the Attorney General is counsel for the board. He said that, by law, his office serves as counsel to the board "when called upon to do so" and that his office was not called upon to serve as counsel in the oil and gas lawsuit.
Caldwell seeks dismissal of LOGA's suit and a declaration that he is charged with representing the SLFPA-E and similar boards only when called upon to do so. It also seeks a declaration that his own office can enter legal service contracts with private firms under certain conditions.
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Permalink Reply by courtney oliver on
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If the suit from the parishes is about the canal causing the problem of loss of land, then the parishes will have to suit themselves. They gave the permits to dig the canals along with land owner, Corp of Eng. etc.
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Permalink Reply by Skip Peel - Mineral Consultant on
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Yes. That was the part of the article that most caught my attention. I was unaware of that development.
"Since then, however, two coastal parishes heavily dependent on the industry have filed lawsuits of their own raising similar issues."
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Permalink Reply by Skip Peel - Mineral Consultant on
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Gov. Jindal again trying to remove east bank levee authority president
Mark Schleifstein, NOLA.com | The Times-Picayune By Mark Schleifstein, NOLA.com | The Times-Picayune Email the author | Follow on Twitter
on January 31, 2014 at 6:02 PM, updated February 01, 2014 at 8:39 AMGov. Bobby Jindal has renewed his efforts to remove east bank levee authority President Tim Doody over the authority’s wetlands damage lawsuit against energy companies, telling an independent committee that Doody and another candidate are ineligible for an open seat on the authority.
Doody, however, said Friday that he does not consider himself ineligible to serve on the Southeast Louisiana Flood Protection Authority-East, and that he plans to reapply for his seat. Meanwhile, he continues to serve as president until a decision is made on whether he will be replaced.
Southeast Louisiana Flood Protection Authority-East President Tim DoodyTed Jackson, NOLA.com | The Times-Picayune archives
Jindal, who appoints authority members from lists submitted by the independent committee, already has replaced three of the authority's nine members in response to the agency filing suit last year against 97 oil, gas and pipeline companies.
Jindal disputes whether the authority had the legal power to file the suit, and argues that the levee agency's suit conflicts with the state’s own legal strategy. That strategy aims at targeting the Army Corps of Engineers in the future with suits linking the corps management of Mississippi River sediment with the state’s rapidly eroding coastline.
The levee authority suit demands that energy companies either fix damage caused by dredging canals and pipeline channels and other actions, or pay the authority for damages that can’t be restored. The money would be used for the authority’s own restoration efforts or levee construction.
In September, the appointment committee recommended to Jindal that Doody - whose term on the authority has expired - and retired state 4th Circuit Court of Appeal Judge David Gorbaty be considered to fill the St. Bernard seat Doody holds.
But Jindal took no action on that recommendation. In a Jan. 16 letter to nominating committee chairman Jay Lapeyre, Jindal's top coastal adviser wrote that both Doody and Gorbaty "have recently become ineligible for appointment to the board."
The letter, by Coastal Protection and Restoration Authority Chairman Garret Graves, said Gorbaty is no longer eligible because the law creating the levee authority prohibits the appointment of a public employee. Gorbaty in December was appointed to be chief administrative officer for St. Bernard Parish, but is taking no salary for the job.
"Despite his impressive credentials, Judge David Gorbaty's recent work for St. Bernard Parish prohibits him from also serving on SLFPA-E," Graves wrote.
Doody, Graves said, was ineligible because of a conflict of interest involving his employment. Doody is an accountant for the Chaffe McCall law firm in New Orleans.
"Mr. Tim Doody was informed of a conflict of interest relating to his employer following his re-nomination to SLFPA-E," the letter said.
Doody this week confirmed that officials at Chaffe McCall asked him to recuse himself from votes involving the energy companies' lawsuit, citing the possibility that the law firm could represent some of the companies in the future. Doody said he’s unaware of his firm representing any company listed in the suit.
Ironically, one of Jindal’s new appointees to the levee authority is New Orleans attorney Joe Hassinger Jr., who is a partner in the Galloway Johnson Tompkins Burr and Johnson law firm. The firm is representing several energy companies involved in the suit, although on matters separate from the lawsuit.
On Dec. 23, the Louisiana Board of Ethics said Hassinger could remain a levee authority member because his firm's legal work did not include the levee suit. Hassinger had requested the opinion.
“The Code of Governmental Ethics would not prohibit you from participating as a member of the Southeast Louisiana Flood Protection Authority-East Board involving the litigation against the oil and gas companies while your firm may represent some of the oil and gas companies in unrelated matters," the board's advisory opinion said. The letter explained that Hassinger's firm "does not have a substantial economic interest in the litigation."
Doody contends that he has no conflict of interest under state law. Indeed, he’s rarely had to vote on issues involving the contract because the levee authority follows Robert's Rules of Orders in voting on resolutions. That means that as president, Doody is allowed to vote only in the event of a tie.
Doody said he has not recused himself from any votes involving the suit, despite the request from his bosses. However, because of his position as president, he's only been required to vote once on anything related to the suit since his firm raised its concerns: a motion to go into executive session in December to meet with the attorneys hired to file the wetlands damages lawsuit. A vote to enter an executive session requires a two-thirds majority under the state’s public meetings law, and Doody cast the deciding vote to meet behind closed doors.
He said he plans to make up his own mind on future votes, rather than follow the direction given him by his company.
State law does require members of the authority to recuse themselves and not to participate in discussions on the issues in the event of a conflict, but does not require them to step down.
Lapeyre said Thursday that he’s trying to schedule a meeting in February to consider the governor’s request, but said there’s still some question as to what the committee can do.
“Normally, the committee simply presents nominees,” Lapeyre said. “But does the nominating committee have to respect what I’ll call these rejections?”
“And that raises the question, does the governor have to appoint who we nominate, or, legally, can he force us to come back with new nominees?” Lapeyre said. “I don’t know the answer to that.”
According to Public Affairs Research Council President Robert Travis Scott, who is a member of the nominating committee, the issue is the wording of the state law: “"The governor shall appoint one of the nominees submitted by the committee."
Scott said the word “shall” means the governor must choose one of the nominees already chosen by the committee, unless they are determined not to be qualified.
“Whether he’s ineligible is something I would like to understand better,” Scott said. “I’ve been told he recused himself from a vote on the lawsuit, but it’s not clear to me whether that would make him ineligible to serve on the authority. Recusals for public boards in Louisiana have been allowed since the ethics overhaul under Jindal.”
An earlier version of this story incorrectly cited the wrong portion of state law governing recusal decisions of elected officials, which said they are allowed to discuss issues for which they have conflicts. Members of the levee authority are not elected, so that provision does not apply to them.
© 2014 NOLA.com. All rights reserved.
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Permalink Reply by Joe Aldridge on -
As I stated before, The primary problem is subsidence. We are sinking into the Gulf. The Corps of Engineers and the Parishes that have erected levies that are the problem. The River is no longer allowed to deposit material to the marsh. Instead the deposition is out the delta of the MS River onto the current Continental Shelf. At that point it goes into deep water and does no one any good.
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Permalink Reply by Skip Peel - Mineral Consultant on
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As the legislative session nears the rhetoric is heating up over the SLFPA-E suit. Louisiana Public Broadcasting had the suit as its topic on the weekly Public Square program for the week of the 17th. It was quite interesting and a video of the full show is available on the LPB website. One of the more memorable portions of the discussion was John Barry, former commission member and suit proponent, describing the testimony of Don Briggs in the deposition for a suit filed by the Louisiana Oil & Gas Association of which Mr. Briggs is the president. Mr. Briggs, representing LOGA, has made numerous statements over the last few years regarding the assertion that the energy industry will cut back exploration and investment in the state because of litigation which he characterizes as frivolous. Under oath Mr. Briggs was asked if he knew of any company that had left LA because of lawsuits. He replied, no. Did he know of any company that did not drill a well in LA because of lawsuits? No. Did he know of any company that considered the legal climate anywhere before they decide to drill a well? No. The damage control is now in full swing after Mr. Briggs stunningly poor testimony in the deposition and a majority of Louisianans support allowing the suit to go forward to be determined on its merits. The following article provides additional background and a run down of current developments. This will be a contest of great interest to those who follow LA politics.
Before the Legislature convenes on Monday, hundreds if not thousands of citizens will amass at the Capitol steps and grounds for a festival that will be more than a party. Organized under retired Army Gen. Russel Honoré, the first Louisiana Water Festival will be part celebration and part demonstration in favor of environmental justice initiatives to be considered in this legislative session.
But the primary goal is to defend against legislative attempts to squash the historic lawsuit filed by the Orleans area flood protection authority against 97 energy companies for damages to coastal marshes from their drilling, dredging and digging of canals. The general and his “green army” will have a big fight on their hands, for the Legislature long has been a friendly forum for Big Oil and its own “green army” of well-paid corporate lobbyists.
The environmental volunteers may be heartened by a first legal skirmish last week that went badly for their nemesis, the Louisiana Oil and Gas Association. It had petitioned a district court in Baton Rouge to block the lawsuit on the grounds that Attorney General Buddy Caldwell illegally authorized the Southeast Louisiana Flood Protection Authority-East to hire outside attorneys on a contingency fee basis. But in a deposition with lawyers for the attorney general and the flood protection authority, Don Briggs, LOGA’s long-time president, repeatedly failed to offer any evidence to back up his claims that the state’s legal environment was causing companies to pull up their rigs and leave. He even admitted to not having read the lawsuit. Clearly, he was over-matched by coming unarmed with facts to a word fight with lawyers. Big mistake.
Yet, Briggs and his members still maintain that the crux of their suit is valid, that Attorney General Buddy Caldwell misread the law in allowing the flood protection authority to contract with outside counsel instead of his representing the authority himself. The judge in the case will interpret what the law means, but, regardless, the real fight will come later at the Capitol over an attempt to change what the law says.
Leading that charge will be Sen. Robert Adley, R-Benton, among the most tenacious of legislators who goes into no debate unprepared. He owns a company that manages the distribution of natural gas to municipalities and gas districts, so he is inclined to see the industry’s view.
He has pre-filed a bill to make clear, going forward, that no political subdivision of the state, which includes the Southeast flood authority, can hire outside counsel without the direct approval of the governor and the attorney general. Another Adley bill would give the governor eventual control over the regional flood protection authorities by changing the nominating process of members to his advantage.
Yet the Adley legislation that would have immediate and fatal effect on the flood authority’s lawsuit is Senate Bill 546, which states that no governmental body can sue an oil and gas company that is lawfully acting within a state permit, which is the primary defense of the sued oil companies. The bill would be applied retroactively, which would shut down the legal action with a majority vote of both houses and the willing, eager signature of the governor.
Opinions are divided about how hard it will be for the petro-friendly Legislature to pass a bill so important to the oil industry. Despite its many employees across the state, a recent statewide poll showed that the public, by a 50-36 percent majority, does not want the Legislature to interfere with the suit going to trial.
Adley said his bill would not affect separate lawsuits brought by the Jefferson and Plaquemines parish councils, which are more limited and specific in citing companies that have violated their coastal zone permits. Legislators are loath to meddle in legal actions brought by locally elected officials, but they may act differently toward litigation brought by an appointed board, in defiance of the governor. In 2006, after the great storm, the regional flood protection authorities in the Orleans area were established in law to act independently. Yet many legislators may now feel that since they are not independent of the governor and Big Oil when it counts, why should some appointees be treated differently. The challenge will be for Gen. Honore’s army to make lawmakers act otherwise.
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Permalink Reply by 1kw6x71km1v37 on
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Would the retroapplication of Adley's bill affect suits already filed?
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Permalink Reply by Skip Peel - Mineral Consultant on
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SB 546 would apply to the SLFPA-E suit as written but I imagine there would be follow on litigation should it pass. Senator Adley has never been bashful when it comes to defending his private business turf which has been the subject of speculation and comment in the past. I hope for some detailed media coverage but this may be one where you have to be in Baton Rouge in order to get the sordid details. Over a scotch or three at TJ Ribs.
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Make mine bourbon. Cheers.
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Permalink Reply by Skip Peel - Mineral Consultant on
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I feel sure they have some excellent single barrel bourbons. Legislators and lobbyists tend to drink the good stuff.
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Permalink Reply by Skip Peel - Mineral Consultant on
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FYI
Book explores energy industry’s role in Louisiana’s wetlands loss
http://www.houmatoday.com/article/20140303/ARTICLES/140309911/1319?...
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Permalink Reply by courtney oliver on
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Skip I am a geologist that has been working in the south La. marsh since early 1950's. I have seen the oak trees along the canals fall in bayous and the lost of camps etc. I have travel most of the bayous and road south of Alex. The oil companies did the construction of the pipeline and barge canals, but the Corp of Eng., State Wildlife and Fish, the Land owners, Dept. of Natural Resources and so on. All of these divisions enjoyed the money coming in with the drilling and delivery of the oil and gas. You could say the construction companies. This oil and gas money has kept this state going for a long time. One of the biggest state lease in the state is the S. L. 340. Huey Long family is still receiving royalty on the oil and gas production. Other state leases such as S. L. 50 and on and on. We do have a problem. I forgot one the different Parishes who Ok the construction.
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