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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Replies to This Discussion
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Permalink Reply by Joe Aldridge on -
I agree 100% with you. Its a many faceted problem. My problem with the suit is: I don't see the Levee Group spreading the blame around. Its like the O&G companies have "deep pockets" so let's pick them pockets. And I have a problem with someone or any group being singled out for a problem that has so many causes.
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Permalink Reply by Joe Aldridge on
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CO
And the "old board" built or allowed to be built substandard levees that blocked the flow of water and sediments into the marsh to replenish it.
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Permalink Reply by Skip Peel - Mineral Consultant on
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This isn't the "old board" however. And the 2006 legislation creating the two super boards are stunning in their express design to limit political influence. I vaguely recall the constitutional amendments but don't remember any substantive debate attached to them. The effects of Katrina were such that the legislation made sense and thus generated little opposition. IMO the only facets of the overall problem that the case will focus on are servitude of drainage and permit requirements to restore canals. As least it would appear that way to me with what information has been published to date. I'm sure the industry will pound on the themes so well expressed above. However IMO that will not make the more substantive issues of drainage and canal restoration go away. The most interesting chapter may play out in the next legislative session.
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Permalink Reply by 1kw6x71km1v37 on
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The courts will most likely assess damages on a pro rata basis and the main focus will be on the oil and gas companies that actually did damage to the Louisiana marshland. All those government entities who merely processed paperwork probably have some kind of statutory exemption anyway from damage suits in this case.
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Permalink Reply by Skip Peel - Mineral Consultant on
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Agreed, cs. The Corp of Engineers is exempted although there were a couple of court cases that sought to find liability for specific actions or omissions on their part. The Corp would likely be at the top of most lists of responsibility for the damage in question. If the suit can not be derailed by legislative action or motions for dismissal to a court, the end result may be some kind of settlement. I think many would find that a reasonable result. Limited and specific liability for defendants along with some long term plan for remediation and cost sharing. If this case drags on for years the legal fees may end up totaling more dollars than agreeing to a plan to fund actual mitigation. I'd very much like to see an estimate of the percentage of canal mileage that could be restored without materially impacting the access the industry needs.
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Well, that last statement begs the question, is the Louisiana marsh too susceptible to damage to permit dredging canals? Perhaps the marsh should not have been sliced and diced like it was. Hindsight is 20/20, of course. But foresight says the writing is on the wall. Fill it in and close it off to dredging, or the marsh will disappear. Lots of folks will choke on that, especially industry types with money invested in the marsh, but to an upstate landowner atop several oil and gas formations, I've been gathering enthusiasm for the idea since this thread started. They have to get it from somewhere.
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Permalink Reply by Skip Peel - Mineral Consultant on
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I think we all would like to see something sensible and equitable done to address the problem. The devil is in the details. And the politics.
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Permalink Reply by courtney oliver on
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Today wells that are drilled in the marsh, use old canals and drill a direction hole. It would take a act of congress to dredge new canals
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Link to a rational discussion by a member of the levee board that brought the suit:
http://www.nola.com/opinions/index.ssf/2013/08/what_the_levee_autho...
In the backgroud is a legal construct that the companies who defaced the Louisiana marsh were merely producing something that society wanted. As such, society is responsible for the damages and liable for the remedial costs. That makes it a national problem, solvable with federal dollars. That way, all that must be done is simply print more money. They're very good at that in Washington.
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Permalink Reply by Skip Peel - Mineral Consultant on
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Lawmakers criticize Flood Protection Authority for suing oil and gas companies
By Bob Marshall, Staff writer -thelensnola.org
THIS IS AN EXCERPT FROM THE FULL ARTICLE WHICH CONTAINS A PARTIAL TRANSCRIPT OF THE MEETING - TO ACCESS THE COMPLETE ARTICLE AND READ THE TRANSCRIPT CLICK ON THE LINK AT THE BOTTOM OF THE EXCERPT.
When the Southeast Louisiana Flood Protection Authority-East filed its lawsuit against oil and gas companies for damages to coastal wetlands last month, vice president John Barry said he fully expected serious blowback from much of Louisiana’s political establishment.
Wednesday, a joint meeting of the House and Senate committees on transportation, highways and public works did its best to make Barry a prophet.
Led by Sen. Robert Adley, R-Benton, a longtime oil and gas businessman, most of the politicians who spoke during the three-hour meeting used Barry, the board and the lawsuit as piñatas.
When they were finished, they handed the floor over to Garret Graves, head of the Coastal Protection and Restoration Authority, and Giuseppe R. Miserendino, representing the Association of State Levee Boards and the Southeast Louisiana Flood Protection Authority-West, to add some finishing kicks.
The committee’s biggest complaints:
- The board decided to act alone. Barry and his colleagues contend that the law establishing the board made it independent of the governor and Legislature specifically so it could go about its business of protecting lives and property.
Adley, who helped write the law, and others disagreed, accusing the board of usurping the Legislature and governor’s authority to speak for the state.
Only one of the nine members who spoke, Rep. Karen Gaudet St. Germain, D-Plaquemine, agreed with the board’s stand, and applauded them for being independent. She, too, helped write the law.
- They fear the board’s action will end agreements between oil and gas companies and levee districts to support flood protection.
- Some of the speakers said the most serious factor in land loss was the federal government’s levees along the Mississippi River, which have prevented sediment from replenishing marshlands. Several acknowledged, however, that oil and gas companies are responsible for some of the damage to the coast.
- They were offended by the board’s decision to hire trial lawyers. Some questioned the legality of the process the board employed to get the approval of the state Attorney General to do so.
- They believe it’s unwise to sue an industry — one that employs hundreds of thousands of Louisianians — for work the state in essence “asked them” to do.
http://thelensnola.org/2013/08/14/lawmakers-sharply-criticize-flood...
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Permalink Reply by Skip Peel - Mineral Consultant on
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Flood board votes to continue oil, gas suit
By Kevin McGill Associated Press
NEW ORLEANS — A New Orleans-area flood control board refused to back down Thursday from its lawsuit seeking damages from nearly100 oil and gas companies over coastal erosion allegedly caused by dredging and digging for canals and pipelines. But the board offered an olive branch to the suit’s opponents, including Gov. Bobby Jindal and his coastal protection chief. The decision to continue the suit was approved without opposition by the Southeast Louisiana Flood Protection Authority-East after a closed session that lasted over three hours. The board then voted, again without opposition, to consider a 45-day suspension of what members termed “substantive” matters advancing the lawsuit — if after meeting with state officials they can come to an agreement to address the issues involved. Board President Timothy Doody abstained, citing a potential conflict of interest with his law firm. He did not specify the possible conflict.
“It is an olive branch,” SLFPAE vice president John Barry said after the meeting. “Remember what’s important: It’s solving the problem.”
Exactly when a suspension might begin was unclear. And what constitutes “substantive” work on the lawsuit was not defined. “We have to figure that out,” Barry said.
However, he emphasized that lawyers’ work on procedural issues — including whether the SLFPAE has the authority to pursue such a suit — would continue even if some sort of suspension is agreed upon. And, he said, a solution would have to involve “significant contributions” from the oil and gas industry. Jindal has characterized the lawsuit as a windfall for trial lawyers. His top adviser on coastal protection, Garret Graves, has attacked it as a needless assault on an important Louisiana industry that could undermine the state’s comprehensive effort to fight coastal land loss. Oil and gas companies have provided land rights and donated money and in- kind services to coastal restoration efforts, Graves has said.
Graves met with SLFPAE board members during part of Thursday’s closed session. He did not comment afterward and was not present for the later votes.
Backers of the lawsuit said the industry has done much for the state but hasn’t been held sufficiently accountable for the damage done by dredging for canals and pipelines that have contributed greatly to the loss of wetlands that serve as a natural buffer against hurricane storm surge. Opponents include Jindal, Graves, the oil and gas industry and numerous state lawmakers. The SLFPAE, which oversees three New Orleans area levee districts, even finds itself at odds with an association it belongs to along with all other state levee boards.
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Permalink Reply by Skip Peel - Mineral Consultant on
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State coastal authority votes to demand that East Bank levee authority drop its oil, gas, pipeline lawsuit - By Mark Schleifstein, NOLA.com
The Louisiana Coastal Protection and Restoration Authority on Wednesday voted to ask the East Bank levee authority to drop its lawsuit against 97 oil, gas and pipeline companies that is aimed at getting the energy firms to repair damage done to wetlands and land, or to pay for unrepairable damages, with the money to be used to improve levees.
The vote came after a contentious 3 1/2 hour discussion of the levee authority's decision to file the suit, at a meeting in Dulac, La., where Southeast Louisiana Flood Protection Authority-East Vice Chairman John Barry, who is a member of the CPRA, found few supporters of the suit on the CPRA board or in the audience.
CPRA Chairman Garret Graves said after the meeting that his authority would not immediately go to court to enforce the demand on the East Bank levee authority. But Graves said actions by other state officials are likely soon to bring a halt to the lawsuit, which the state says is hurting its efforts to restore wetlands under the state's coastal Master Plan.
Barry was forced to recuse himself from the vote on the resolution, after state attorneys said his vote would be a conflict of interest.
Barry began the meeting by defending the levee authority's decision to file suit and offering to work with energy industry officials during a proposed 45-day pause in the lawsuit to come to an agreement that could result in the suit being dropped. He said if that were done, the law firms hired by the levee authority would be paid for work they've already done by the energy industry, and it would not cost taxpayers.
Barry said that in exchange for their cooperation, he was willing to go to bat for the energy industry in any requests they would then make of the state Legislature.
The levee authority is continuing with the lawsuit because taxpayers within the authority's borders will be unable to shoulder the operation, maintenance and future improvement costs for the levee system that it oversees, which includes the East Jefferson Levee District, Orleans Levee District and the Lake Borgne Levee District.
The federal government has spent $14.6 billion on levee and drainage improvements in the New Orleans area, including those three districts, on the east and west banks of St. Charles Parish and in Jefferson, Orleans and Plaquemines parishes.
West Bank levee authority President Susan Maclay announced at the meeting that her authority now opposes the lawsuit and requested that the East Bank authority drop it.
West Bank levee authority Executive Director Giuseppe Miserendino charged that Barry had talked the East Bank commission into filing the suit and warned that it would result in the Legislature rewriting the laws setting up the two authorities, which could remove protections built in after Hurricane Katrina to keep them independent from politics.
"The Orleans Levee District had issues during the storm and all of us had to be reformed," he said. "Now we all have to be reformed again because of something you all did?"
That concern was backed up by Graves: "I don't see any scenario where this levee district doesn't get gutted -- or say reformed -- in the next legislative session."
Graves said the lawsuit disrupts what has been a five-year effort during the Jindal administration to move forward rapidly with coastal restoration and hurricane levee projects. "We've made more progress in the last five years than in any other period of the state's history," he said, pointing out that the state already has set aside $1.8 billion that will be used to pay the local share, including the portion owed by the East Bank levee districts, of the cost of rebuilding the New Orleans area levees.
"The reason the independent authorities were created was to address the lack of cooperation (between individual levee districts and the state) and the suit is contrary to those post-Katrina reforms," he said.
Graves said he has also felt the heat from his decision to back Barry's appointment to the CPRA: "I was the one who stood up and recommended to the governor that you be put on, which I've been reminded of repeatedly."
Gov. Bobby Jindal announced his opposition to the lawsuit when it was filed in July, saying the authority was required by state law to elicit the governor's support before going to court.
Barry reiterated his support for the lawsuit, saying that while coastal erosion is caused by more than the energy industry, that industry is violating state and federal permit requirements to repair damages, and should be held accountable.
"The reason I'm doing it is because I love New Orleans and want it to survive," said Barry, who is the author of "Rising Tide," the nonfiction account of the Army Corps of Engineers' actions during the 1927 Mississippi River flood, and is a researcher at Tulane University. He spends half the year in New Orleans and half the year in Washington, D.C.
His work on the flood book gave him access to senior corps officials and members of Congress, which he used in the immediate aftermath of Katrina and the years afterward to lobby on behalf of levee improvements in New Orleans, and to assist state officials in lobbying for levee improvements.
Also appearing on behalf of the East Bank levee authority at Wednesday's meeting was authority member Stephen Estopinal, a civil engineer, who outlined how canals dug by the oil and gas industry have affected the wetland buffer to the east of the levees along Lake Borgne and eastern New Orleans.
"If we are able to restore (those wetlands), we might be able to extend the life of the city of New Orleans for another 100 years," he said.
But CPRA members, even from the New Orleans area, were not in agreement. "We cant just go into the deep pockets (of the oil and gas industry) every time we're scared of losing land," said Plaquemines Parish President Billy Nungesser. He said the dramatic expansion of drilling in northwest Louisiana has shown "they don't have to drill in southern Louisiana."
And Nungesser said tax revenue from the oil and gas industry already is supporting restoration efforts, including those being paid for by his parish. "We've had a $10 milliion surplus every year in Plaquemines Parish because of oil and gas," Nungesser said. "I'm embarrassed for this lawsuit."
Pontchartrain Levee District member Steve Wilson, also a member of the CPRA, said his district routinely gets support from the oil and gas industry in the form of cooperation for identifying and using land for levees. Wilson also warned that efforts to make companies fill in oil and gas canals could backfire, in the event of an accident with a well that would then be difficult to reach.
State Rep. Gordon Dove, who represents the Houma area, disagreed with Barry's argument that the authority could file suit because the loss of wetlands affect the ability of levees to block storm surges. "I was the co-author of the legislation establishing the authority, and your authority's purpose was to build levees," Dove said. "You all usurped the authority of the Legislature, the governor and this board."
Representatives of several oil and gas industry companies also opposed the lawsuit. "I do not think a lawsuit elucidates this problem," said Yancey Duplantis, a representative of Hornbeck Offshore. "Negotiaton, not litigation, is the answer."
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