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 Dino Roberts on
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the problem is not God, or the oil companies or dredging or the weather....the problem has been and always will be, the Lawyers....
dino
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The problem with that is without lawyers, you can't possibly win.
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Permalink Reply by Skip Peel - Mineral Consultant on
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COASTAL LAWSUIT ONE STEP FROM BEING KILLED
May 21, 2014 By John Maginnis
One of the most controversial bills of the session, to kill a massive coastal damages lawsuit against 97 oil companies, is headed to the House for its last stop before final passage. The House Natural Resources Committee passed SB 469 13-6, to limit the authority to bring claims in the coastal zone to the Coastal Restoration and Protection Authority, the attorney general, parishes with coastal management plans and district attorneys. That list would leave out the Southeast Louisiana Flood Protection Authority-East, which claims in its suit that oil exploration damaged coastal marshes and made the New Orleans area more vulnerable to flooding.
The bill would also require that any funds recovered from any such suits filed in the coastal zone to be spent on coastal restoration and flood protection.
An amendment clarified that the bill would be applied retroactively, thus exposing the flood protection authority’s suit to be dismissed. That change passed, 12-5.
“It is just a big ugly unconventional lawsuit,” said attorney Jimmy Faircloth. “It’s a big production designed to make a few people a whole lot of money.” The bill’s author Sen. Bret Allain, R-Franklin, said the bill would not give oil companies immunity, because it would not affect the lawsuits filed by Jefferson and Plaquemines parishes.
Gladstone Jones, the attorney for the flood authority, challenged that point, saying, “This is an absolutely, 100 per cent get-out-of-jail-free card. It grants immunity for oil and gas companies for damages they caused that make the levee board’s job in New Orleans more difficult.”
On the final vote, coastal Democrats joined most of the panel’s Republicans to approve the bill. Republicans voting no were Rep. Franklin Foil of Baton Rouge, Eddie Lambert of Gonzales and Paul Connick of Marrero.
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Permalink Reply by Skip Peel - Mineral Consultant on
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Proposal to void levee board lawsuit heads to Jindal
By Melinda Deslatte Associated Press May 31,2014
BATON ROUGE — The oil and natural gas industry won a significant victory Friday in the Louisiana Legislature, receiving final passage of a bill that seeks to kill a lawsuit filed by a New Orleans area levee board against nearly 100 oil and natural gas companies. The lawsuit by the Southeast Louisiana Flood Protection Authority- East alleges the companies’ drilling activities damaged Louisiana’s coast and vulnerable wetlands.
Senators voted 25-11 for the measure by Sen. Bret Allain, R-Franklin, that is aimed at retroactively voiding the lawsuit. The vote sent Senate Bill 469 to Gov. Bobby Jindal, who is expected to sign it into law. The Republican governor opposed the lawsuit and pushed for the measure’s passage. “We need to not only protect and restore our coastlines, but we also need to protect our people’s interest from lawsuits that conflict with other legal efforts in Louisiana. I am happy to support (the bill) by Sen. Allain and look forward to signing it when it reaches my desk,” Jindal said in a statement. Lawsuit supporters say the industry hasn’t been held sufficiently accountable for coastal damage done by dredging for canals and pipelines. Critics call the lawsuit an attack on a valuable state industry and a windfall for trial lawyers who stand to make millions, and they say the levee board had no authority to file it.
Allain’s bill will define which governmental entities can bring legal claims about management of Louisiana’s coastal zones to entities designated in the Coastal Zone Management Act. Levee boards aren’t on the list.
That will offer a legal argument to have the levee board’s lawsuit thrown out. The bill specifies that its provisions “shall be applicable to all claims existing or actions pending.” “I think this clarifies the Legislature’s stand on this issue,” Allain said, repeating his argument that the board had no right to file the lawsuit. “You don’t think that changing the law midstream is unfair?” said Sen. Ed Murray, D-New Orleans, who voted against the bill. Under questioning from senators, Allain said the measure won’t affect similar environmental damages lawsuits filed by Jefferson and Plaquemines parishes against oil and natural gas companies.
Lawmakers on both sides don’t expect Jindal’s signature on the bill to end debate, assuming that a judge will be asked to decide the constitutionality of the retroactive bill.
“This fight is not over. We will see you in court. And we will see you at the next election. Apparently a majority of the legislators believe that the oil and gas industry actually is above the law, which is an interesting concept to embrace in the United States,” John Barry, a former levee board member who was ousted by Jindal for pushing the lawsuit, said in a statement.
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This is starting to sound like a violation of fifth and fourteenth amendment due process rights. However, as a governmental entity, a levee board may not have such rights as reserved for the individual. The plaintiff's attorneys will know how to spin it, no doubt. One-third of 50 billion dollars is how much? My adding machine don't go that high.
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Permalink Reply by courtney oliver on
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In the early 1900's up until the 1940's, the land owners dug trenasses to travel around in the marsh. This was the only way to trap and fish. These trenasses could have caused the same problems as the oil field canals. I guess the land owners with be in the next suit. In Plaquemines Parish there are lands that are going under water and have no oil field canals, but have trenasses.
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Permalink Reply by Skip Peel - Mineral Consultant on
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The digging by private land owners was not by permit which required remediation when the canal was no longer used for its original purpose. Abandonment without complying with the terms of the permit is the crux of the litigation. The suit does not seek restitution for the comprehensive causes of coastal erosion. It is specific to the canals dug under permit by energy industry companies.
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Permalink Reply by courtney oliver on
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Skip a lot of the land owners wish to keep the canals and leave them for hunting, fishing and trapping. That has been big money for the land owners. I have been working in the marsh since 1956 and most of the canals are still there because of the land owners wish. They have been losing land along the bayous where there are no canals. The main problem for the marsh, is people. Stopping the flow of water etc.
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Permalink Reply by Skip Peel - Mineral Consultant on
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courtney, the main cause of "stopping the water" is the network of canals. Land owners have the right to make decisions concerning their personal property to an extent that it does not harm the public at large. Those land owners may have a different opinion of the situation today. Those who give the question fair consideration may come to the conclusion that without marsh there is no hunting or trapping. And I imagine the fishing will suffer also.
The debate and polemic on this topic has been all over the place depending on the politics of the individual or group. The suit is specific. If a company applied for and received a permit to dredge that included a requirement to mitigate and they abandoned use of the canal without mitigation they are in violation of their permit. Anything else is irrelevant to the suit.
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Permalink Reply by Skip Peel - Mineral Consultant on
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IMPACT OF LEVEE LAWSUIT BILL QUESTIONED
SOME BELIEVE BP DAMAGE CLAIMS COULD SUFFER
By Mike Hasten mhasten@gannett.com
BATON ROUGE — Several law school professors, including one at Loyola, have warned Gov. Bobby Jindal that if he signs a bill killing a lawsuit filed by a New Orleans area levee authority, he’s jeopardizing lawsuits filed against British Petroleum for damage the massive amount of oil it released inflicted on the coast. Senate Bill 469 by Sen. Bret Allain, R-Franklin, retroactively throws out a lawsuit filed by the Southeast Louisiana Flood Protection Authority- East against 97 oil, gas and pipeline companies for damage inflicted along the coast by their activities. The bill accomplishes that by amending the Coastal Zone Management Act to state that no lawsuits can be filed against oil companies unless it’s by an entity identified in the act and it has an approved plan for restoration that included in that act.
Robert R.M. Verchick, who holds the Gauthier-St. Martin Chair in Environmental Law at Loyola University, wrote “does our governor realize that, if he signs this bill, he also may be killing scores of claims that his own state and associated local governments have brought against BP for the Macondo oil spill?”
Verchick points out “SB 469 clearly lists not only who can bring claims in Louisiana's coastal zone, but what kind of claims they can bring. Notably missing from its list are claims for economic losses and claims for natural resource damages under the Oil Pollution Act of 1990 (OPA) – the very basis for pending claims against BP.”
Verchick’s email says his opinion is supported by law school professors at the University of Alabama, the University of Florida and Boston College.
The state, several parishes, coastal cities, fire district and airports have lawsuits seeking economic claims against BP under OPA, Verchick said. SLFPAE has a claim against BP for more than $79 million, mostly to recover tax revenues it lost because of the oil spill.
“These OPA claims are not frivolous or opportunistic,” he said. “Communities that are bringing these claims were hit hard by the Macondo oil spill. They're trying to recover just some of what they lost.”
Rep. Joel Robideaux, R-Lafayette, who handled the bill in the House, said attorneys who worked on SB469 said it doesn’t harm lawsuits filed by other agencies.
He said he considers the law professors’ problems “another red herring that’s out there to say it’s a bad idea. We’re going to fight that, I’m sure, for a while.”
Robideaux said “Throughout the process, every meeting that we had was with lawyers who are very well versed with the statutes.”
Those lawyers, he said, include House and Senate staff attorneys and Jimmy Faircloth, Jindal’s former executive counsel, and “I talked with LOGA (the Louisiana Oil and Gas Association) throughout the process.
“Once it gets here (on the House floor) it’s legislative attorneys who tell us what the consequences are,” Robideaux said. “It’s more our legal staff than anyone else when push comes to shove.”
He said the bill “specifically allows local governments, DAs, the attorney general to all file suit. That’s in current law and we didn’t change that at all.” The bill changes the law by stating that only entities that are recognized in the Coastal Zone Management Act and that have coastal restoration or protection programs in the CZMA can file suits.
SLFPA-E is not one of those entities. But some of the entities that are in the coastal zone act do not have recognized plans but have claims. Verchick points out “Because SB 469 works retroactively, it could undo all of these claims. Did Gov. Jindal know that when he pushed SB469 in the Legislature?” Asked about the retroactivity clause affecting those entities that have filed suit but didn’t have plans, Robideaux said “The way the lawyers interpreted it, who were drafting the bill, at any time you can get an approved program and then you could file suit. “All they have to do is get an approved program through the Coastal Zone Management Act,” Robideaux said. “It isn’t a big hurdle at all.” Asked his opinion of the law school professor’s claims, Robideaux said “I don’t see it being a problem. I’m sure I’ll be getting a lot of phone calls and have conversations with the legal staff who drafted the bill.” Jindal is expected to sign the bill early this week.
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Permalink Reply by Skip Peel - Mineral Consultant on
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BUDDY GOES TO BAT
After quiet session, Caldwell starts swinging
BY JEREMY ALFORD
The political stakes are high for both Gov. Bobby Jindal and Attorney General Buddy Caldwell. They've become embroiled in a late-developing disagreement over the enactment of a bill that would retroactively sink the New Orleans-area flood authority lawsuit that was filed against 97 oil and gas companies. While legislative consideration of SB 469 was put to rest during the session's final days, the controversial debate was reignited by a letter signed by 23 legal experts and professors over the weekend stating the bill could invalidate not only environmental claims filed by state and local entities, but also claims related to the 2010 BP oil spill.
In his own letter sent to the governor Tuesday, the day after session adjourned, Caldwell recommended a veto due to these "unintended consequences" and the legislation's "vaguely broad" causes of actions that would be swept away. Although the bill was filed to target the Southeast Louisiana Flood Protection Authority-East and its legal action, it stipulates that only agencies that are part of the Coastal Zone Management Act can file such suits. It further lists acceptable causes and nullifies the SLFPA-E suit that seeks damages from energy companies for years of land loss due to drilling activities and canal-dredging.
Thomas Enright, Jindal's executive counsel, responded to Caldwell with another letter Wednesday stating he disagreed that a veto was the proper course of action, thus reaffirming the governor's long-held stance and stoking speculation that the bill will be signed.
While Caldwell's critics, like state Sen. Robert Adley, R-Benton, have lashed out at the general for waiting too long to come to the table on the issue, his supporters note that First Assistant Attorney General Trey Phillips has been doing the heavy lifting during session and making sure the office was represented during debates.
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Permalink Reply by Skip Peel - Mineral Consultant on
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JINDAL SIGNS BILL CANCELING LEVEE AUTHORITY LAWSUIT
By Mike Hasten mhasten@gannett.com June 7, 2014
BATON ROUGE — Gov. Bobby Jindal Friday signed into law legislation retroactively blocking a levee authority lawsuit and limiting the type of lawsuits that can be filed. He dismissed warnings from 79 law school professors that the bill could interfere with state and local government claims related to the British Petroleum disaster in the Gulf of Mexico. In signing Senate Bill 469, Jindal said “This bill will help stop frivolous lawsuits and create a more fair and predictable legal environment, and I am proud to sign it into law. It further improves Louisiana’s legal environment by reducing unnecessary claims that burden businesses so that we can bring even more jobs to our state.
“The bill will also send future recovered dollars fromCZMA(CoastalZone Management Act) litigation to coastal projects, allowing us to ensure Louisiana coastal lands are preserved and that our communities are protected,” he said.
His action was applauded by leading representatives of the oil industry, which participated in drafting the legislation and lobbied for it.
The Southeast Louisiana Flood Protection Authority — East, a constitutionally created body charged with protecting five parishes in the New Orleans area, filed suit against 97 oil, gas and pipeline companies for damaging coastal wetlands with miles of canals dredged through marshlands that served as a storm barrier. Much of the land has washed away. Attorney General James “Buddy” Caldwell on June 3 recommended to Jindal that he should veto the bill because the bill contains “very broad and all-encompassing language” that could impact state and local government claims against BP. He suggested that the Legislature could restructure the bill next year to erase those concerns and cancel the lawsuit without endangering BP claims.
A seven-page legal assessment of the legislation cautioning Jindal not to sign SB 469 because it could have “adverse consequences” was assembled byLoyolaLawSchool Robert Verchick and received the endorsement of legal scholars from California to Maryland.
In his letter to Jindal, Caldwell stated “No one can currently quantify or identify all of the causes of actions which will be swept away if this bill becomes law. However, the language in the bill clearly deletes all causes of action arising out of activities subject to permitting or uses that significantly impact coastal waters.”
Jindal’s executive counsel, Thomas Enright, said in a June 4 letter that he rejected the attorney general’s argument (which was based on Caldwell’s and the professors’ assessments) because it lacked “specificity that the bill does in fact have unintended consequences.”
Jindal’s decision to sign the bill was influenced by a “legal memo” from Enright, who maintains that even if there is a conflict, federal law would trump state legislation.
Jindal’s signing the bill was praised in the governor’s office news release by the bill’s authors, Sens. Bret Allain, R-Franklin, and Robert Adley, R-Benton, and by Louisiana Oil and Gas Association President Don Briggs.
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