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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This will be legally interesting for several years, provided the courts allow it to move forward.

The politics may be more interesting than the litigation, although less visible.  The damages and cost of remediation could make the BP Macondo well tragedy look like peanuts.  It could potentially be “many billions of dollars. Many, many billions of dollars.”  And a number of years. 

Political maneuvering didn't take long at all.  Here are some of the first salvos.  Don't you know Governor Jindal's phone has been ringing.

The government board charged with protecting New Orleans from flooding sued the oil and gas industry on Wednesday.

Louisiana has been steadily losing land, which leaves the city vulnerable to floods. The lawsuit argues that the oil and gas industry is responsible for a big part of the problem and hasn't paid its fair share to protect the city.

Since the 1930s, Louisiana has lost roughly as much land as makes up the state of Delaware.

"If you put the state of Delaware between New Orleans and the ocean, we wouldn't need any levees at all," says John Barry, vice president of the Southeast Louisiana Flood Protection Authority - East. "There is this large buffer of land that has disappeared, and that buffer makes New Orleans much more vulnerable to hurricanes."

Barry's board has the job of maintaining and improving the levee system that the federal government fortified after Hurricane Katrina pummeled the city in 2005.

He says it will be so expensive to keep the city safe that his board decided to try to get money from the oil and gas industry to help do that.

Barry says the industry contributed to the problem in a couple ways. By sucking the oil and gas out of the ground, it caused the land to sink. The industry has also dug thousands of miles of channels to lay pipeline and reach well sites, which allows salt water to seep in to swamps and marshes.

That process "kills the plant life and without the root system, the land basically melts into the ocean," Barry says.

U.S. Geological Survey scientist Jeff Williams worked on a study published in 2000 that found the industry was responsible for more than a third of the wetland losses. "The scientific evidence is very strong," he says.

Williams says he's not surprised that that the flood protection board is suing.

"What surprises me is that it hasn't happened decades ago," he says.

Other scientists say it's impossible to figure out what portion of the problem was caused by the industry. There are so many natural and man-made causes.

For hundreds of years, the Mississippi River was re-engineered to benefit navigation and farmers. That has prevented the sediment from the river from rebuilding the land in the Louisiana Delta. The land in southern Louisiana is naturally subsiding, and the sea level is rising due to climate change.

Don Briggs, the president of the Louisiana Oil and Gas Association, represents many of the 97 companies named in the lawsuit. He says it's wrong to blame the industry.

"There are many factors. And the biggest factor of all is the fact that we diverted the Mississippi River and the flow of the sediment that created the barrier islands which gave us the protection that we needed," he says. "The oil and gas industry didn't do that."

Besides, Briggs says that many millions of dollars of royalty money from the oil and gas companies flow to Louisiana every year to restore the coastal wetlands.

"The industry is paying and does pay," he says.

But legal experts say the companies pay nothing beyond the royalties they have to pay the government for using the natural resources that belong to everyone.

Tulane University Law School research fellow Mark Davis says, for decades, Louisiana politicians have been unwilling to make the industry pay for its damages because of the economic benefits it brings the state.

"I think what we're seeing now is at least one part of the state is saying, 'We're making that demand now,' " Davis says.

But Louisiana Gov. Bobby Jindal, who appointed the flood protection board, has a different demand. He ordered the board to drop its lawsuit and fire its lawyers.

 From:  La. Flood Board Sues Oil Industry For Destroying Wetlands

July 25, 2013 3:38 AM

Full article: 

http://www.npr.org/2013/07/25/205179324/la-flood-board-sues-oil-ind...

"By sucking the oil and gas out of the ground, it caused the land to sink". ??????

Surely that is not a basis for this suit.. If they make statements like that in court surely that will be laughed out of court.

 

Yeah, agreed BD.  That one brought me up short too.  Subsidence shouldn't be a focus of the suit.  Now the dredging/digging of access canals, that's a different story IMO.  I've seen the maze of canals cut into the swamp and marsh in parts of S LA.  And one look at an aerial view will confirm that they exist in a lot of parts I have not seen personally. 

I wonder how long it will take Bobby to un-appoint the board members.

The coast is naturally sinking, "naturally" they should sue GOD. Lawyers looking for money. Landrieu has been playing that game for years, a big waste of money. The coast is naturally sinking and the sediments from the Mississippi River are going over the shelf edge because of the changes in its course for the farmer and shipping interest. Stupid is as stupid does.

As the board appointments are by the governor, I doubt that Sen. Landrieu has much political influence with them.  It did however occur to me that this might get the energy industry pushing for Congress to adopt the Senator's coastal states revenue sharing bill for energy related federal income.  I agree that subsidence is a poor focus.  However erosion associated with salt water infiltration may be a different matter.

Group:

Oh wow, where to start with this...

"Barry says the industry contributed to the problem in a couple ways. By
sucking the oil and gas out of the ground, it caused the land to sink."

BD, I think he's referring to those "lakes of oil and gas" that apparently land and marsh in Louisiana floats on (or used to float on) before pumping it out made everything sink. (>:-{/>  Honestly, if someone is going to make a statement like this, whether is lack of education or plain disingenuousness, the Governor should remove him anyway.

There is a reason that most (but not all) of the marshland losses are in an area largely around the City of New Orleans - this is predominantly the impact of confining the largest silt-laden freshwater source on the North American continent to a restricted channel.  Not only has the wholesale confinement of the Mississippi River to its current main channel deprived the marshes of landbuilding silt, but the cessation of periodic freshwater into the marsh leaves no opposition to the force of saltwater intrusion.  Canal building does not kill a marsh; brine does.  Dredging does not kill a cypress forest (cypress trees will populate along and behind the spoil banks deposited by the dredge); groundwater salinity does.  Southwest LA is not immune to these forces, rather, the lower reaches of those river and estuarine flows are mostly unconfined, and thus continual infusions of freshwater and silt serve to maintain a balance against forces of coastal subsidence and saltwater intrusion.

Looking at the article at NPR, they show pictures of a portion of Lafourche and Terrebonne Parishes across the Bayou Lafourche floodplain (ancestral Mississippi Delta and former distributary) in the 1930s and today, from Timbalier Bay to Barataria Bay.  Unfortunately, no aerial photography was available ca. 1903-1904, when Bayou Lafourche was originally cut off from the Mississippi.  It makes one wonder how much land and marsh began to slip under the water during that thirty-year period, considering that widespread powered flight began about the same time as the oil and gas business began operating in this portion of the state.  Even more interesting and ironic about showing this area is that storm surge in this area did not affect Orleans Parish in the slightest, as the Isle of Orleans lies on the other side of the river, protected along this southern flank by flood control structures in Lower Jefferson Parish, and the set of two levees which confine the Mississippi River to its current course.  Forget Delaware, you could have put the state of Texas there and it would have not impacted the flooding of Orleans Parish in the slightest.

It is not disputed that canal building and dredging has facilitated saltwater intrusion into the marshes.  The tortuous meandering routes of the rivers and bayous of S LA served to slow down and blunt the force of this intrusion; straight line routes served to accelerate same.  This was not limited to oil and gas companies and pipeline companies.  Perhaps the greatest single identifiable factor (outside of general subsidence and lack of sedimentation filtering through the marsh from the Mississippi) leading to the disturbance and destruction of the eastern marshes which protected New Orleans (and arguably funneled substantial surge into the New Orleans flood control infrastructure was the construction of the MRGO canal, funded and mandated by Act of Congress in the 1950s and constructed by the USACE.  Other drainage and navigation canals built at state, parish and local expense also exacerbated this problem; salt water did not preferentially choose "oil and gas routes" into the marsh.

What no one covers (inconvenient truth?) is that the lengthening of the Mississippi Delta in its current confined course has now ensured virtually all sediment emptying through the main passes of the Delta is now deposited into open water and into a subsea canyon off the edge of the shelf.  Unconfined flows not leading into the canyon and managed silty flows (restoration projects) continue to build land, however, these flows are generally not positioned to substantially rebuild land in those areas shown on the picture.  The main distributary of the Mississippi, the Atchafalaya River, which captures approximately 30% of the total flow of the Mississippi as regulated by the USACE has an actively building delta pushing into Atchafalaya Bay.

 

I would posit that the eastern marshes could be restored over time by a series of freshwater diversions with additional appropriate protections made for roads and settlements along said diversions from the river to the back levees.  It's not sexy and it doesn't require the board to sue for "Billions and Billions of dollars" from purported deep pockets for their "Fair Share", but it would work.  What would be disturbing to the system is that the effect on flows down river would create an impact to shipping, particularly at low flow times, as to river stages and navigation.  At that point, I presume that the levee boards could also just vilify, demonize and sue the shipping companies who make obscene profits on the trade of the banks of vanishing coastline.  Or maybe the citizenry could sue the commissions and boards for the collection of decades of taxes for flood control which science may now prove was the primary factor in the ultimate inundation and loss of the very lands that the levees were supposed to protect by lack of flooding rather than the force of it.

 

Or perhaps, all of that is absurd, and we all need to pay for the fact that we chose to actively stop one natural process for our own purposes and thus left ourselves beholden to other natural processes, and now we need to actively redirect the natural process that we chose to control to save the lands ourselves that the politicians and trial lawyers now intend to defend (for a fee and a tax, of course - not for you, not for me, but for the man behind the tree).

Dion,

You hit it out of the park, so to speak. The primary problem as I see it is the subsidence of the land that borders the Gulf. As anyone with knowledge of geology and geography know, the land is flowing into the gulf and thus subsiding. In the past, before the levees were built, the periodic flooding of the land by the River caused the deposition of more sediment and that covered or eliminated the amount of subsidence that we now see. Thus the River built the land along the Gulf in South Louisiana. Now with the levees in place that natural process has been stopped.

Its interesting to me that the very group that is suing in this case is the one that caused the greatest amount of damage to the South Louisiana Coast. I guess the the old adage; Watch when you point a finger at someone or something because you have three pointing back at you.

The foundations of the lawsuit's claims could be charitably described as flimsy. Ironically, the only claim that has real merit is for interference with natural servitudes of drainage, and even that one is a stretch.

Louisiana's Legal Journal

Friday, July 26, 2013 Last Update: 07/25/13 10:35 pm

Flood protection agency files massive lawsuit against oil companies over land loss

July 24, 2013 9:43 PM
By Kyle Barnett

 

The Southeast Louisiana Flood Protection Authority – East covers three consolidated districts: East Jefferson Levee District, Orleans Levee District, and Lake Borgne Basin Levee District.

NEW ORLEANS – In what is being called a landmark lawsuit, the Southeast Louisiana Flood Protection Authority–East filed suit today against more than 100 oil and gas companies claiming they have put the New Orleans area at risk through contributing to coastal erosion.

The Southeast Louisiana Flood Protection Authority East (SLFPA-E) that governs levee districts in Orleans Parish, East Jefferson Parish and the Lake Borgne Basin filed the suit in the Orleans Parish Central District Court.

Land loss has been noted by scientists, environmentalists and conservationists as an ever present problem on Louisiana’s coast for numerous years, according to the suit.  It also says that a study released by the U.S. Geological Survey in 2011 reveled that the state is losing nearly 17 miles of coastal marshland per year, which has more than tripled during the last decade.

The plaintiff points to that same survey when listing dredging and the construction of canals and other activities of the offshore oil industry as a culprit behind the land loss.

John M. Barry, vice president of the SLFPA-E, said his organization filed the suit to further carry out its responsibility to defend the area against catastrophic flooding.

“That first defensive perimeter is of course the buffer of land and marsh that cuts down hurricane storm surge before it reaches the levees,” Barry said. “The industry has taken about $470 billion of the state’s natural resources during the past 20 years, and we ask that it pick up its share of the increased costs of flood protections required to offset the loss of protective coastal wetlands.”

SLFPA-E is being represented by Gladstone Jones of New Orleans-based Jones, Swanson, Huddell & Garrison, who specialize in suing oil exploration and production companies. The firm’s website reads that it has “also actively been involved in many of the largest environmental cases in the United States.”

Don Briggs of the Louisiana Oil and Gass Association said that the suit is potential money grab for plaintiffs’ attorneys.

“Whether it is ‘legacy lawsuits,’ the BP claims or now this ridiculous claim by the Flood Authority, the idea remains the same: drain as much money from the oil and gas industry as possible,” Briggs said, “Mr. Gladstone Jones, the lawyer representing the Flood Authority, said with his own mouth in the New York Times that the plaintiffs would be seeking damages equal to ‘many billions of dollars. Many, many billions of dollars.’”

Other firms representing the SLFPA-E in the suit include New Orleans-based Fishman Haygood Phelps Walmsley Willis & Swanson, LLP and Lake Charles-based Veron, Bice, Palermo & Wilson LLC.

The Gambit reported that Attorney General Buddy Caldwell has signed off on the lawsuit’s ability to move forward.

Case no. 2013-06911.

Following up up Dion's comments - 

Pre-aerial navigation charts and topo maps, while not accurate by today's standards will give a picture that becomes compelling when linked with oil and gas sites over time and aerial photography.  

There won't be a question of being able to show "some" damage.  

The problem will be in quantifying how much is oil and gas related, whats it worth, and does LA law allow for what is being sought in the suit...

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