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 1kw6x71km1v37 on
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The specialized New Orleans law firm of Jones, Swanson, Huddle & Garrison would not have taken the levee board's case on a contingency fee unless there was something significantly favorable to the plaintiffs in the case. This isn't going to be a slam dunk, but it will be a horror for the defendants if the case goes to court, which it never will. Big oil will gladly settle out of court in the billions of billions, and Jones will happily walk with 1/3 of that. Then the problem will be will the money ever make it to the marsh, or will it get skimmed off on the way down.
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Permalink Reply by Skip Peel - Mineral Consultant on
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cs, then you believe that the suit will survive attempts to quash it in the legislature? IMO this will be a fascinating political battle that will get little real media coverage beyond a limited set of talking points. A lot of legislators will have some very tough choices to make. And they can't help but be informed by the way the Big Tobacco suit and settlement played out. In Louisiana the tobacco industry had nothing like the influence welded by the energy industry. Polls purport to show a majority of Louisianians favor allowing the suit to be heard. Will voters place pressure on their elected representatives to allow that? Will legislators fear the displeasure their financial backers more than that of their constituents?
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Permalink Reply by tc on
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This new processing tax is a slippery slope. What would the demand for Haynesville gas be if other states starting taxing it as it made it way to its end users. Does processing include LNG? If LA wants to tax PA Marcellus NG for processing, then I guess that PA has no choice but to have a special tax on all refined products from LA (oil & chemicals), which would put them at a competitive disadvantage with Texas products.
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Permalink Reply by Skip Peel - Mineral Consultant on
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You'd have to ask Foster for the particulars however his comments lead me to believe that the tax would not apply to hydrocarbons produced within the jurisdictional confines of the state. He has championed the processing tax for years and formulated it long ago with offshore production in mind. Plenty of other politicians have attempted to tap the GOM production that is in the federal jurisdiction and flows through LA by way of revenue sharing with the federal government. That's a pretty tough sell in D.C. I'd like to hear industry opinion on the processing tax as it relates to abolishing or significantly reducing the 12.5% severance tax levied against in state production. Savvy politicians might combine that with tighter laws on legacy lawsuits to attract support from some influential industry members.
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Permalink Reply by courtney oliver on
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What one state does gives the other states the option. Like all of the big pipe lines carrying Louisiana gas to the northeast, Florida, etc. The election for governor has started.
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Permalink Reply by Skip Peel - Mineral Consultant on
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Court: SLFPA had right to hire outside attorney, not use AG’s Office
Private attorneys used in coast suit
Attorney General Buddy Caldwell acted within his legal authority when he approved a resolution that allowed the Southeast Louisiana Flood Protection Authority — East to move forward with hiring outside attorneys for a lawsuit against the oil and gas industry, a state judge ruled Monday.
At issue was the levee board’s hiring of outside attorneys on a contingency fee basis last year in its lawsuit against nearly 100 oil and gas companies, alleging damage to coastal wetlands.
When paid on a contingency fee basis, the attorneys collect a percentage of any awards made in the case.
State Judge Janice Clark, of the 19th Judicial District, issued the ruling in the suit filed in December by the Louisiana Oil and Gas Association.
Clark did not explain her ruling Monday.
LOGA alleged in its suit that the levee authority is a state agency that operates under the state Coastal Protection and Restoration Authority. As a state agency, according to the lawsuit, the levee board did not have the authority to hire outside counsel and instead needed to be represented by the Attorney General’s Office.
However, the ruling Monday means the court recognizes the levee board as a political subdivision such as a city or parish and it has the authority to hire outside attorneys, said Lori Mince, the attorney representing the Southeast Louisiana Flood Protection Authority — East.
“This was a sideshow created by LOGA,” Mince said.
After the ruling Monday, LOGA said it “strongly” disagreed with the court’s ruling and will appeal it.
LOGA focused its lawsuit on the contract the levee board signed with Jones, Swanson, Huddle and Garrison law firm. The organization claimed the contract was not legal and that Caldwell should not have approved the resolution to allow the levee board to contract with the law firm.
The attorney general’s approval of the resolution ignores the state’s constitutional requirement that “all financial awards for state agencies or state-owned properties belong to the state and citizens of Louisiana,” LOGA President Don Briggs said in a statement.
The constitutional issue, affirmed by the Supreme Court in Meredith v. Ieyoub, in which LOGA sued then- Attorney General Richard Ieyoub, found that contingency fee contracts need to be approved by the state Legislature if the case involves a state agency.
“The judge’s ruling today will potentially award hundreds of millions of dollars to private contract lawyers, not the citizens of Louisiana,” Briggs said.
Caldwell said Monday that he was happy with the ruling.
“I am pleased that the court followed the clear letter of the law and ruled that our office correctly followed the rules and procedures, particularly regarding our approval of the levee board’s resolution to hire attorneys,” Caldwell said.
The levee board has said its lawsuit is a way to have the oil and gas companies pay for damage they have caused over the years to coastal wetlands through the dredging of canals and other activities. The contribution to land loss, levee board members have said, makes the hurricane protection systems less effective.
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Permalink Reply by courtney oliver on
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Don Briggs had an article in a reply to this writing. www.theadvertiser.com. This is the Lafayette , La. paper
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Permalink Reply by Skip Peel - Mineral Consultant on
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Didn't find it with that link, courtney. Can you check it?
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Permalink Reply by courtney oliver on
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You have to bring up the paper and then it is an article in the paper
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Permalink Reply by Skip Peel - Mineral Consultant on
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Don't have a subscription but I suspect it may be the same letter to the members posted on the LOGA website. If not, please cut and past the text.
Open Letter to LOGA Members from Don Briggs
Dear Member:
Oil and gas producers beware.
Today, Judge Janice Clark ruled against the oil and gas industry. The judge did not issue her own ruling, but instead took the position, word for word, of the Attorney General and his lawyers.
The only winners in Judge Janice Clark’s ruling are private trial lawyers who will become wildly rich from suing oil and gas companies.
This is not surprising given that in the middle of the trial, the defense attorneys hosted a fundraising event for Judge Clark’s re-election campaign.
The heart of the issue is contingency fees for a handful of private lawyers that could receive a future payday of hundreds of millions of dollars, if not billions. We believe that Judge Clark’s ruling this week ignores Louisiana’s constitution.
Simply put, these contingency fee contracts violate state laws. Although Judge Clark may have been confused about this issue, LOGA’s position is quite clear. We believe SLFPA-E is a state agency, and therefore, any funds received belong to the state of Louisiana.
Today’s hostile litigious climate has to be remedied. We have already lost 30,000 oil and gas jobs due to legacy lawsuits, according to an LSU study. We cannot allow this to continue.
This is not over. LOGA’s next step is to appeal, and we feel confident that the Louisiana First Circuit Court of Appeals will recognize the importance of this issue and merit of our arguments.
We thank you for your continued support. This is only the first round of a long process to bring some sanity to the legal environment in Louisiana.
We’ll keep you up to date on developments.
Sincerely,
Don Briggs
President
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It's a bit ludicrous that the state would own an entire settlement award before attorneys fees and legal costs. Without those two things, no award would be forthcoming. It's not like Briggs and the O&G Association were beating down the doors of the defendants looking for a settlement of it's own, anyway. That the state legislature is free not approve contingency fees specified in the present suit, or any other, smacks of unconstitutional censorship and restraint. Mr. Briggs would be well advised to another legal opinion on this matter. And if you think the Louisiana AG Office would have been an effective advocate for the levee board in this case compared to Jones Swanson, well, continue pissing against the wind.
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Permalink Reply by Skip Peel - Mineral Consultant on
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Always to leeward, cs. Points taken. My first thought was for the pot calling the kettle black regarding Mr. Briggs indignation at the fund raiser for the judge held while the case was ongoing. Few special interest groups do fund raisers as well, and as often, as the O&G Industry and LOGA. And quite a few are hosted or contributed to during legislative sessions while bills important to the Industry are in the process. I've been to a few. Someone may wish to make a distinction between the recipient being a judge or a legislator however in the interest of a balanced discussion giving all sides the opportunity to have their say,
State senator files complaint against levee board case judge
Marsha Shuler mshuler@theadvocate.com March 05, 2014
A north Louisiana state senator has filed an ethics complaint with the Louisiana Supreme Court against 19th Judicial District Judge Janice Clark.
State Sen. Robert Adley’s conflict-of-interest complaint involves Clark presiding over a case involving a levee board lawsuit against oil and gas companies at the same time he said some lawyers in the case hosted a campaign fundraiser for Clark.
“The impropriety of this action is appalling and would be in violation of the Louisiana Ethics code for legislators. It clearly is an attempt to influence the outcome of the current case before Judge Clark’s court,” Adley wrote to Supreme Court Chief Justice Bernette J. Johnson.
Adley, R-Benton, said Tuesday that he wants a judicial investigation.
He said it may be time to include judges in state campaign finance laws that prevent fundraising when key deliberations are going on similar to the ban on legislators fundraising during legislative sessions.
Clark is presiding over a case in which the Louisiana Oil and Gas Association claims that Attorney General Buddy Caldwell should not have authorized the Southeast Louisiana Flood Protection Authority — East to hire the outside attorneys who filed suit against 97 oil and gas companies.
The lawsuit accuses the companies of destroying wetlands and speeding coastal erosion. LOGA sued Caldwell last year, seeking to get the courts to reverse the authorization.
Adley is part of legislative efforts to derail the levee board’s lawsuit. He has filed legislation that would require the flood protection authority to win written permission of the governor and attorney general to hire special attorneys. Gov. Bobby Jindal is against the authority’s lawsuit.
Adley’s complaint involves a recent fundraiser for Clark hosted by 37 lawyers, among them Baton Rouge lawyer Wade Shows, who represented Caldwell in the case.
Clark presided over two days of hearings Feb. 24-25.
The fundraiser was held Feb. 27 at the LeBon Temps Bar & Grill in Baton Rouge.
The suggested contribution was $250 per person. The maximum contribution listed on the invitation was $2,500.
The case continues in Clark’s court Monday, March 10.
Shows said he was asked to be on the host committee for the event three or four months ago before the case was assigned to Clark by random allotment.
“I have given no money to Janice Clark’s campaign. I was merely a host,” Shows said. “I didn’t even go.
“The bigger question is why didn’t they just file it (the case) in Orleans Parish.”
Efforts to reach Clark or anyone at the Supreme Court for response were unsuccessful Tuesday.
Court offices were closed for Mardi Gras.
Adley said Tuesday that he hopes the court will take action against Clark.
Adley said the court lobbied to exempt themselves from ethics laws. If they choose not to police their own, he said he will file some legislation “to get at this issue of raising money while a judge is in trial. There has got to be something to deal with this issue.”
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