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?”
<there has got to be something to deal with this issue>>>
Historically, Louisiana has dealt with similar issues with bananas, lots of bananas...
fwiw, i recall the pelican state tried to enact/enforce a similar sort of stunt about 15-20 years ago in regards to production 'imported' from federal waters. good luck this go-around, too.
This article paid very little attention to the Mississippi River diversion, but IMO that is the major reason for losing wetlands. The canals are likely a contributing factor, but I would think a very minor one in comparison to the loss of replenishing sediments from this diversion. In return for this diversion, the Port of New Orleans has been sustained, and oil and gas has been produced. Personally I think this suit should be thrown out, but we'll see...
When you add the fact of geological growth faulting along the Gulf that causes subsidence you have the real problem.
Yes the suit should be thrown out.
Assuming the Mississippi was contained before the canals were dug, the resulting lack of sediment deposition the may not be admissible. If the canals had not been dug, my understanding is the salt water intrusion would not have migrated to where it is today.
Add to the geological growth faulting Joe Aldridge mentions the potential rise in sea level should the polar icecaps continue melting, and, as Hillary said, what difference does it make. The marshlands will be under water regardless of whether or not the canals are backfilled.
Industry, Green Army Building Competing Movements
The pile of bills dealing with oil industry lawsuits and environmental issues also will command lawmakers' attention. But first, competing groups are working outside the Capitol to build grassroots support on both sides for the coming debate.
The Louisiana Oil and Gas Association was ruled against in district court this week in its effort to block the lawsuit brought by the Southeast Louisiana Flood Protection Authority-East. While LOGA plans its appeal, it has also launched its "Give 'Em the Boot" tour in south Louisiana to rally opposition to the attorneys behind the lawsuit against the oil companies. "It's a few greedy trial lawyers," said Gifford Briggs, vice president of LOGA, which is backing the group Change Louisiana. "The public needs to know what is going on and they need the opportunity to speak up in defense of the industry."
Also out on the road is retired Gen. Russel Honoré on his "Green Army" tour in support of legislation he is backing to end tax breaks for oil and gas companies; require stricter natural gas storage permits; and to force companies to plug abandoned wells. At a stop in Abbeville, he called attention to Atlanta Gas Light, which stores natural gas in the salt caverns under Lake Peigneur. "That company is not paying taxes, and they may destroy Lake Peigneur," Honoré said, as reported by KATC-TV.
3 FORMER LOUISIANA GOVERNORS AGREE: LAWSUIT AGAINST 97 OIL AND GAS ... - thinkprogress.com article
By Ari Phillips on March 27, 2014
Louisiana has given a lot to oil and gas companies, mostly in the form of natural resources. The generosity is not always reciprocated. While the industry brings economic gains and employment to the state, when it comes to environmental costs or socioeconomic strife the exchange is not so smooth. Last summer, the Southeast Louisiana Flood Protection Authority-East took matters into their own hands by filing a lawsuit against 97 oil and gas companies claiming they have caused the loss of hundreds of thousands of acres of coastal wetlands, which increases flood danger. The suit asks the companies to restore damaged wetlands or offer financial compensation for areas beyond repair, money that could be used for levee maintenance or construction.
Louisiana Gov. Bobby Jindal was quick to brush off the legitimacy of the claims, demanding that the lawsuit be pulled and asserting that the board is improperly taking over the state’s role in coastal policy. The oil and gas companies — the perpetrators of all the digging and dredging of pipeline canals along the coast among other damaging activities — have sided with Jindal, who has already appointed three replacements to the board who see more eye-to-eye with him and share his opposition to the lawsuit after others terms ended.
On Wednesday, three former Louisiana governors took opposition to Jindal and the oil and gas industry. During a panel discussion at Loyola University, Buddy Roemer, Kathleen Blanco, and Edwin Edwards agreed that “no state officials — neither the legislature nor the current governor — should interfere with the local levee board’s lawsuit against oil companies,” according to UptownMessenger.com, a local New Orleans news source.
“This ought to be a for-profit state, but those who abuse the privilege and don’t pay for damaging the land and water and the air that we breathe ought to pay the cost of it,” said Roemer, a Republican who ran for president in 2012. Roemer also stated that the industry is simply trying to maximize their profits by shirking the responsibility of repairing the coastline.
Edwards and Blanco focused more on the lawsuit itself, with Edwards saying that at the very least it ought to be allowed to go to court to find out who is responsible and for what. Blanco agreed, citing the loss of land due to channel digging, and saying that she helped design the independent levee board to be free of politics. “I’m rather concerned that it is going to be re-politicized,” she added.
The editorial board of the New Orleans Times-Picayune calls the levee boards one of the most positive changes to the area after the devastation of Hurricane Katrina in 2005. “Residents demanded that the old crony-laden boards be consolidated and that board members have autonomy and the technical expertise to hold the Army Corps of Engineers accountable for its work,” wrote the board in February. “The new flood protection authorities are vastly better watchdogs than the old boards.”
The column was written in protest of State Sen. Robert Adley’s bill that would let the governor reject nominations to the board until he finds someone he likes, rather than appoint a nominee from the board’s original submissions. Gov. Jindal requested the bill be filed.
Ninety-four percent of New Orleans voters approved the constitutional amendment creating the new levee authorities in October 2006. According to the Times-Picayune, “it would be a betrayal of them to insert politics back into the process.”
Panel OKs bill targeting levee board contract
By Mike Hasten
BATON ROUGE — The full Senate soon will vote on a bill that could undo a New Orleans-area levee board’s contract to sue oil and gas companies for damaging the coast in the board’s jurisdiction. The Senate Finance Committee Monday voted 6-4 to send SB457 by Sen. Robert Adley, R-Benton, to the full Senate for debate. Sen. Dan Claitor, R-Baton Rouge, indicated he might try to send the bill to the Judiciary A Committee, of which he is vice-chairman, for further review.
The issue stems from the Southeast Louisiana Flood Protection Authority- East contracting attorneys on a contingency basis to sue 97 oil and gas companies the authority contends are responsible for damaging the coast along Orleans and nearby parishes. The panel uses in the lawsuit industry study admitting it was 32 percent responsible for the coastal damage.
Adley, who has several bills targeting the authority and trying to negate the lawsuits, contends the SB457 “does nothing but bring a little sunshine” into the procedure for granting contracts valued at more than $50,000. He said state and local government bodies should be willing to state who is being contracted, how much the party would be paid, how long the contract would be in effect, what it’s for and how it would be funded. “This clarification makes it clear we have sunshine in contracts,” he said, and the SLFPA-E contract does not have all of those elements. Some on the committee questioned the constitutionality of the measure because it is retroactive and could force the renegotiation of existing contracts. They cited a state constitution provision that says no law can be passed to invalidate a contract.
They also questioned a provision in the bill that allows anyone to question whether all of the specifics are met. That gives the contracting agency six months to prove it complies or to change the contract.
Sen. Greg Tarver, D-Shreveport, opposed the measure, saying he’s concerned that anyone, anywhere could challenge a contract that could have been signed several years ago.
Attorneys contracted for the lawsuit contend that the agreement with SLFPA-E is legal and Attorney General Buddy Caldwell’s office had authority to approve it.
Michael Veron, one of the attorneys on the team working on the lawsuit, told the committee that the discussion of Adley’s bill had not touched on the real subject of the bill and “the elephant in the room is an attack on people who seek to hold the people responsible for the damage accountable.”
He said he has heard talk about “greedy lawyers and frivolous lawsuits but the only oil and gas lawsuit held to be frivolous was one filed by the oil and gas association.”
In ruling against the Louisiana Oil and Gas Association’s lawsuit challenging the attorney general’s approval of hiring attorneys on a contingency basis, District Judge Janice Clark ruled that the lawsuit was “frivolous.”
“Contingency contracts are for the poor to have access to the courts,” Veron said, and the U.S. Supreme Court has upheld hiring attorneys who get paid only if they win a court-awarded payment for more than 100 years.
The SLFPA-E cannot spend money on lawsuits. It can has a staff attorney but beyond office expenses, its money must be spent on flood protection.
Adley’s bill is “terribly overreaching,” Veron said, and is “an unprecedented expansion of the law of standing,” referring to a legal provision that only those who are directly affected by a lawsuit can intervene. Adley’s bill allows “anybody to stick their noses in anybody else’s business.”
Bernie Boudreaux, another attorney on the law team, said the bill would affect any contract by cities, school boards and police juries, and any board or commission. Also “it could affect mineral leases.” Gladstone Jones, the lead attorney, said attorneys and their staffs have racked up $1.5 million in expenses since September but they won’t get paid unless they win the case and get a court award. “If you’re opposed to the lawsuit, kill the lawsuit,” he said, but don’t mess up contract law. “You’ll have plenty of opportunity to six more bills coming up.” Adley told the committee to vote against his bill “if you believe that it’s OK for somebody to contract for the taxpayers of this state and not disclose everything.”
Voting for the bill were Finance Chairman Sen. Jack Donahue, R-Mandeville, and Sens. Sherri Buffington, R-Keithville, Norby Chabert, R-Houma, Bret Allain, R-Franklin, Ronnie Johns, R-Lake Charles, and Mack “Bodi” White, R-Baton Rouge. Joining Tarver and Claitor in voting against the bill were Sens. Fred Mills, R-Parks, and Ed Murray, D-New Orleans.
"They cited a state constitution provision that says no law can be passed to invalidate a contract."
Well, there you have it in a nutshell. Adley's retroactive bill on standing fails right there upon examination. Adley and his cohorts can litigate all they want, but they won't get over the above hurdle.
And when Mike Veron comments on legal issues, you can take what he says to the bank and borrow on it, so the speak.
The recent Louisiana Oil and Gas Association suit was just puffery pulled from thin air.
This case is like over already.
Monday, March 31, 2014 theforum
Senator, governor show allegiance to companies
It’s been a couple of years since I last shared the yearly lament of a friend on the opening of the state legislature … that our lawmakers might repeal the state Constitution leaving us some new form of legislative torture.
This year, his concerns might have a little more validity given a four-some of bills filed by Sen. Robert Adley, R-Benton.
A little background, first.
As most will recall, following Hurricane Katrina there was a major call for revising the way south Louisiana levee authorities (board members) are appointed to create more independent, professional and responsive boards – and reducing ineffective political appointments to the boards.
In July 2013, one of those revamped boards, the Southeast Louisiana Flood Protection Authority- East (Authority), filed suit in Orleans Civil District Court against 97 oil, gas and pipeline companies alleging that they have caused significant damage to the states coast and coastal wetlands.
Moreover, and in keeping with state Attorney General Buddy Caldwell’s decision, the Authority engaged outside counsel, on a contingency fee basis, to handle the lawsuit.
Interestingly, while state law generally prohibits the hire of outside counsel and contingency fee arrangements for state boards or commissions, apparently that same prohibition isn’t included in the laws remaking the flood authorities.
And the fur flew. It started with Gov. Bobby Jindal’s office. On learning of the lawsuit, he was quick to note that the authority suit wasn’t authorized. He’s also held up the replacement of vacant seats, nixing all those recommended.
Enter Adley and his bills: Senate Bill 79 would give the governor near carte blanche on filling vacant seats on both the Southeast Louisiana Flood Protection Authority – East, and the Southeast Louisiana Flood Protection Authority – West boards, all but eliminating the reforms made following Hurricane Katrina.
Senate Bill 467 amends current law (R.S. 30:29(C)) to provide if a lawsuit has been filed and a “party admits liability for environmental damage and a plan has been submitted to the department, the court shall not proceed to a trial on the merits until the department has filed with the court the approved feasible plan for evaluation or remediation.” Legislative adoption of this bill would effectively and retroactively end the lawsuit.
Senate Bill 469 would amend state law concerning who or which state entities can bring an action for damages to a court in similar circumstances – greatly reducing the ability of a number of governmental bodies to seek redress for damages caused.
Finally, Senate Bill 546 would preempt certain actions by local governments or political subdivisions of the state, such as levee authorities, from filing suits or claims to recover damages or property or “seek injunctive relief arising from the lawful activities of an oil or gas permittee of the state … The authority to bring such claims shall be reserved exclusively to the state.” What an amazing pass for a single industry.
Adley is an unapologetic supporter of the gas and oil business; for nearly two decades he owned Pelican Gas Management – a company that supplied/distributed gas to municipal governments. But he’s also been a formidable advocate of open government, often sponsoring bills aimed at opening up Jindal’s non-transparent governor’s office.
We could use some of that transparency now.
No one in Louisiana can doubt the major contribution of the oil and gas industry to our economy. At the same time if there’s environmental damage done, it should be remediated. We cannot afford the alternative when it comes to hurricane protection provided by healthy coastal areas.
But for Jindal and Adley to close any avenue of those boards (people) responsible for such protection to recover for damages is just plain irresponsible. In fact, their allegiance to this particular segment of our economy – over the people their sworn to serve is a sad commentary on their opinion of who counts in Louisiana.
As noted often and ever so articulately by Public Service Commissioner and former state Sen. Foster Campbell – the oil and gas industry’s infrastructure investment in Louisiana is so great that said industry isn’t likely to be moving out anytime soon.
Finally, while legal representation contingency fees are not assured (the lawyer who loses the case doesn’t get paid for his work), Adley may have a point on this piece of proposed legislation. However, his other three bills do not serve the interest of state residents and deserve to die quiet deaths in committee hearings.
Flood protection authority fighting uphill battle
Written by Mike Hasten - shreveporttimes.com - Apr. 6, 2014 3:51 PM
BATON ROUGE — A New Orleans-area flood protection authority that’s suing 97 oil and gas companies for damaging the coast is fighting a battle that threatens to kill the lawsuit before it ever gets to a courtroom.
Gov. Bobby Jindal, through state Sen. Robert Adley and others in the House, has launched a multi-phase attack on the Southeast Louisiana Flood Protection Authority-East to throw out its lawsuit and make sure its board of directors never does anything like that again – without the governor’s approval.
So far, the governor and Adley are winning with little opposition. One of Adley’s bills eased through the Senate 27-10 and another came out of the Senate Transportation Committee, which he chairs, without opposition. Others are awaiting hearings in Senate committees and similar bills are filed in the House.
“The contract they entered into is illegal,” he said in an interview. “They violated the laws and policy of the state.”
Adley claims that if the authority had followed state law in getting the attorney general to approve filing the lawsuit, there wouldn’t be so many problems. Instead, he said, the authority hid details from the attorney general’s office, so the contract should be voided.
He said John Barry, former vice chairman of the authority who was removed by Jindal after the lawsuit was filed, withheld a “poison pill” in the contract that says if the board cancels the contract it must pay all attorney costs.
“When I asked John Barry to tell me why he intentionally hid information, he said ‘we knew it had bad political implications,’” Adley said. “He sat right there and admitted he broke the law.”
Adley said “clearly everyone” agrees that the oil industry is responsible for about 30 percent of the damage done to the coast but “no one wants to talk about the other 70 percent. People don’t think the way to fix it is paying trial attorneys hundreds of millions of dollars.”
Barry and a team of attorneys are fighting legislative efforts. He acknowledged “we’ve taken a few hits but it’s not dead yet and I believe we have a real chance of surviving. If the lawsuit survives, I believe a deal will be worked out and oil companies will come to the table.”
He said he received a call last week from a representative of a large oil company “talking about a statewide solution, not just in the authority’s jurisdiction.” A settlement on just part of the coast “is the last thing they want” because many other suits are sure to follow.
Several coastal parishes have filed suits but “the key to a settlement is this lawsuit,” he said.
The first bill in the series, SB547, breezed through the Senate and awaits a hearing in a House committee. It was sculpted to apply only to SLFPA-E and its West Bank neighbor requiring that details of any contract must contain the law firm being contracted, the purpose of the suit, how much it would cost, when it would end and in the case of a contingency contract, the payment schedule. It’s retroactive, so it would affect the East Bank authority’s contingency contract to sue oil companies.
Questions have been raised about retroactivity of the bills and whether cancelling the attorneys’ contract would violate U.S. and Louisiana constitutional contract protection.
Adley cited a 2001 Louisiana Supreme Court decision in a challenge of legislation passed to invalidate a City of New Orleans lawsuit against gun manufacturers. The state’s highest court upheld the retroactivity of the legislative act.
Another provision in that ruling says “the constitutional prohibitions found in the Contract Clauses of the Federal and State Constitutions do not protect political subdivisions of the state from the passage of retroactive laws impairing their rights with respect to transactions already passed because these protections are for the benefit of private citizens.”
Bernie Boudreaux, one of the attorneys representing SLFPA-E, said that provision protects the contract because law firms and other private corporations are considered persons under state law.
“The constitutional right falls on the side of a private entity that has a contract with a public entity,” Boudreaux said. “Nobody is going to contract with a municipality (or other governmental body) if the Legislature can do this. They can’t do it.
“We hope is doesn’t pass,” he said. “If it passes, certainly we are going to challenge” the constitutionality.
Another Adley bill, SB546, plainly states the governing authority of any political subdivision or local governmental subdivision of the state can’t file “any claim or bringing suit to recover damages to property or seek injunctive relief arising from the lawful activities of an oil and gas operator that has a state permit.”
The bill also is retroactive.
“It makes me sad that one very strong industry can direct to the Legislature that it should have immunity from the judicial system,” Boudreaux said. “It’s incredibly broad. Oil companies don’t want to go to court because what they did was wrong.”
Adley said in committee that he has a compromise worked out between the oil companies and the Louisiana Landowners Association.
Boudreaux said the problem with that is the LLA is that it is “highly populated with the oil industry, so it’s a compromise between oil companies and oil companies.”
Adley also has SB553, which says if a levee board needs to hire outside counsel, the governor and the attorney general have to approve it.
SB629 removes the east and west authorities’ independent status and places them under the Coastal Protection and Restoration Authority.
Another of the bills, SB79, gives the governor more authority to select members of the authority that he wants.
Current law restricts appointments to professionals in flood protection and limits the number of names sent to the governor for appointment. Proposed law expands the number of names to be submitted and if he rejects the nominees, sets a shorter time line for more submissions. If not met, the governor can choose anyone he wants.
Looks like this suit will end, one way or another. I think the reality of the cost to "repair" the coast will prevent any likely solution.
O&G companies don't have enough money, they would go bankrupt if they were forced to pay for the damages they've (and all of us, as the consumers of products) caused.
And...there's the "Climate Change" factor involved also. Most of theses areas are predicted to be under water in about 100 years, unless old Mother Nature hiccups.