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Permalink Reply by Skip Peel - Mineral Consultant on July 25, 2013 at 16:19

New Orleans, coastal lawmakers outspoken on levee board suit

Oil, gas and pipeline companies should restore Louisiana's wetlands destroyed by dredging and drilling, according to a lawsuit filed against nearly 100 firms on Wednesday, July 24, 2013. (John Hazlett)

Lauren McGaughy, NOLA.com | The Times Picayune By Lauren McGaughy, NOLA.com | The Times Picayune
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on July 25, 2013 at 7:24 PM, updated July 25, 2013 at 7:49 PM

The best thing for the people of the state would be to let the suit go forward." -- former state senator and levee board member Lambert Boissiere, Jr.

While Louisiana's congressional delegation sought to remain largely neutral on the suit filed Wednesday by the East Bank levee authority against a slew of oil, gas and pipeline companies, state lawmakers were more eager to take sides on the issue. From cautiously supportive to deeply critical, current and former lawmakers agreed the legal challenge would bring with it reactive legislation and tough choices for Gov. Bobby Jindal.

On Wednesday morning, the Southeast Louisiana Flood Protection Authority-East filed an historic lawsuit demanding oil, gas and pipeline companies restore damaged wetlands and pay for weakened natural levee systems created by those wetlands.

Jindal issued a response just hours later, stating the levee board had no authority to file the suit without his approval and calling it a "hijacking" of the issue by trial lawyers "who see dollar signs in their future and who are taking advantage of people who want to restore Louisiana's coast."

Louisiana's congressional delegation weighed in early but tentatively, most saying they needed to review the suit at greater detail before commenting. But lawmakers on the state level proved more outspoken on the issue.

Some called it provocative or creative, while also questioning whether such a far-reaching suit would have legs. And nearly all expressed concern with the effect it will have on the state's booming oil and gas sector.

"(The suit) has the potential to virtually shut down the oil and gas exploration and production industry. We just can't do that," said state Rep. Sam Jones, a Democrat from Franklin who represents communities in St. Martin and St. Mary Parishes.

Self-described "Mr. Oil and Gas" Norby Chabert, a Republican state senator from Houma who serves on the natural resources committee, agreed with Jones. He added he would "find it hard" to hold companies responsible for damages inflicted decades ago.

"I believe that the actors that are on the stage in 2013 are behaving responsibly," Chabert said, calling the levee board suit a "shotgun approach."

State Sen. J.P. Morrell, D-New Orleans, acknowledged the suit could have a "chilling effect" on the industry, but added that the state's symbiotic relationship with oil and gas shouldn't cause lawmakers to turn their back on the environmental and economic effects of decades of drilling and dredging.

He also reiterated a commonplace fear of the levee authority -- that the cost of maintaining completed Corps of Engineer projects in Southeast Louisiana will "dwarf" millage fees collected to pay for their upkeep.

"At the end of the day, we've all spoken about how we want our flood control to mirror, let's say, what they have in the Netherlands. But we've never secured the revenue sources for that."

He also called Jindal's assertion that the board was lobbied by trial lawyers looking to make a quick buck "baseless," a sentiment echoed by fellow New Orleans Democrat Walt Leger.

"It seemed like it was disconnected to the issue," the state representative said of the governor's response to the suit, which he said he needed more time to study before taking a position. "I trust that (the authority) has done significant research and I trust that they've hired good and competent lawyers."

Vice President John Barry said the move was based on a unanimous decision of the board that was given the rubber stamp by state Attorney General Buddy Caldwell. But state Sen. Conrad Appel, R-Metairie called into question the "hundreds of millions of dollars" the lawyers stand to make on the case if successful.

"I don't understand why a levee district would hire trial lawyers when we have an attorney general to handle class," Appel said.

While even those opposed to the suit said they knew the decision to enter it couldn't have been taken lightly, the method by which it was filed has also been a source of political contention for local lawmakers.

Specifically, the lack of collaboration -- or even notification -- on the suit by the East Bank authority with its counterparts was cited by more than one legislator as a cause for concern.

"If a governing body has a true interest in correcting a situation or making something whole, then you'd think of collaborating with others in the same line of work," said state Rep. Chris Leopold, R-Belle Chasse, who added the East Bank board did not notify its counterpart in his district before filing the suit.

State Sen. A.G. Crowe, a Republican from Slidell who sits on the Select Committee for Coastal Restoration and Flood Control, said he also questioned the timing of the suit. He said its wide scope could interfere with efforts to bring in more state and federal dollars for restoration projects.

"It could have an adverse effect on our ability to get the funding for the long-term sustainability for our coasts and I hope there will be an immediate meeting of the minds to work together with all of the state and federal agencies to approach this situation in unison."

One thing every local lawmaker could agree on is that the legal challenge will likely take years and involve tough choices by Jindal and future governors as well as legislative challenges.

If it goes forward, the oil and gas industry will necessarily take an indirect shot at the suit by pushing for legislation that seeks to further limit legacy lawsuits, absolve liability for companies before a certain year for product development or strengthen the governor's authority over boards and commissions.

This legislative response will mirror to the case, whether it goes to trial, settles outside of court, or starts over with a decision by Jindal to dissolve the levee board, said former New Orleans state senator and East Bank levee board member Lambert Boissiere, Jr.

While Boissiere said the board put the governor in an uniquely tough spot by filing this legal challenge, he made clear the ball is now in Jindal's court. He urged the governor to accept the suit, work with legislators, the board and his branch to work on a settlement.

"The best thing for the people of the state would be to let the suit go forward," the current New Orleans constable said. "I would hope they can reach a compromise so we don't drag this thing out for years and years. But the governor has some hard decision to make."

One other point on which state lawmakers agreed is that regardless of their views on the methods or merits of the case, the intent -- to bring the issue to the forefront while securing funds for coastal restoration -- is one they can all get behind.

If the situation ends up being an attention-getter and forces some comprehensive action," said Jones, "in the boundaries of what's affordable without destroying the industry, I'd like to have that conversation."

© 2013 NOLA.com. All rights reserved.

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Permalink Reply by Joe Aldridge on July 26, 2013 at 6:21

Andrew,

I agree but the problem is the group suing is the very one that has created the "interference with the natural servitude of drainage". If I were the O&G companies I would counter sue for damage to the environment and the wetlands caused by the levee districts because of, as you state, their interference with the natural servitude of drainage. They should be required to have facilities that open ALL of the natural drainage servitudes to the Rivers and allow drainage to the marsh. This could get interesting.

Additionally, I've been told and seen in print some time ago that the Atchafalaya Basin Commission will not allow additional water to enter Bayou Lafourche from the Atchafalaya River. This has created a brackish water as far North as Valentine in Lafourche Parish. This is simply because of the lack of natural flow from the Atchafalaya River. So what we see is the very State Commissions that are controlling the "natural drainage servitudes" are the ones creating the problems especially with the encroachment of salt water into the marsh and wetlands.

This would not post to your comment on the thread.

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Permalink Reply by Skip Peel - Mineral Consultant on July 28, 2013 at 7:02

From NOLA.com

Louisiana coastal erosion lawsuit: attorneys explain its chances and potential pitfalls

Link to full article includes pdf of suit w/ list of defendants

http://www.nola.com/environment/index.ssf/2013/07/louisiana_coastal...

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Permalink Reply by Andrew on July 28, 2013 at 17:41

The problem with that is that the servitude of drainage exists between tracts of land, and an oil company that didn't own the land would have no right to sue the state or anyone else for interfering with it. However, your point is well taken, and the owners of land that are affected could theoretically raise such claims, although the State of Louisiana probably wouldn't allow itself to be subject to such a suit.

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Permalink Reply by Skip Peel - Mineral Consultant on July 29, 2013 at 1:38

Andrew if your reply is in response to my post above, I don't have a point.  I do have an interest in the debate over the merits and legalities of the suit however I am content to leave that to those with a legal background or interest.  What engages me is the politics. Jindal vs. the board, tort opponents vs. Tulane law, state legislators choosing sides, academics weighing in with opinions, the energy industry mobilizing it's friends in government, business and academia, etc.  This will be followed closely by so many interests inside and outside of the state.  The political tug of war could be quite interesting. 

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Permalink Reply by Skip Peel - Mineral Consultant on July 29, 2013 at 2:50

With levee authority lawsuit, state can't keep ignoring petroleum-related damage to marshes: Len Bahr - NOLA.com

coastal_erosion.jpg

Louisiana's coastal marshes have eroded dramatically in recent years. (David Grunfeld, The Times-Picayune archive)

Contributing Op-Ed columnist By Contributing Op-Ed columnist
on July 29, 2013 at 6:14 AM, updated July 29, 2013 at 6:17 AM

In July 1973 I was hired fresh out of grad school to join an LSU research team studying oil production impacts on the Louisiana coast. We attempted to quantify the ecological damage caused by a new oil pipeline that came ashore onto the deteriorating delta coast near Fourchon. The research effort was a bust in that so many pipelines already crossed the coast in that vicinity as to mask the impacts of any single project.

During the 40 intervening years, as the coastal landscape sank and shrank and the flood risk rose, I resigned myself to the fact that elected officials in my adopted oil-dependent state invariably turn a blind eye to the cumulative impacts of energy production and related operations. (With the notable exceptions of former Gov. Dave Treen and PSC Commissioner Foster Campbell.)

This has amounted to a virtual unwritten agreement by politicos to sweep one category of coastal damage under the rug.

The economic benefits of the energy industry include lots of lucrative low-skilled jobs for a grateful oil patch workforce. This short-term advantage has always trumped the permanent long-term environmental cost of energy production in the form of land loss and reduced protection from hurricane surge. State officials have typically lumped together the complex causes of delta land loss and attributed them to mismanagement of the Mississippi River by the U.S. Army Corps of Engineers.

Blaming the corps exclusively for Louisiana's coastal crisis has reached an art form during the Jindal administration. This mindset conveniently ignores the complicity of the state in damming off Bayou LaFourche; promoting the Mississippi River Gulf Outlet (MR-GO); and giving carte blanche to the oil and gas industry to have its way with the coast. The consequences of the latter include accelerated subsidence, 10,000 miles of unfilled exploration and pipeline canals and deep navigation channels dredged solely to accommodate offshore oil and gas production operations.

On July 24 the perpetual cozy state/industry relationship suffered a severe shock. On that day an official state levee board, the Southeast Louisiana Flood Protection Authority East, courageously broke the rule about treating the oil and gas industry with kid gloves. The levee authority filed a lawsuit against about 100 oil and gas companies aimed at forcing them to pay the cost of erasing their coastal footprint specific to the East Bank area for which the levee board bears responsibility.

This radical action obviously struck a nerve with Gov. Bobby Jindal. The lawsuit triggered an immediate and intemperate diatribe from the governor, implying that the action and the greedy trial lawyers hired by the board could capsize the entire coastal restoration program. Not since his ill-conceived push to build 100 miles of sand berm oil "barriers" after the Macondo blowout has the governor shown such passionate interest in the coast.

Between 1992 and 2012 the estimated cost to protect and restore Southeast Louisiana exploded from $14 billion to $50 billion, a tab that state officials envision to be primarily a federal, i.e., taxpayer responsibility. The BP disaster in 2010 was a welcome distraction from this funding challenge, providing lawmakers with a potential piggy bank with cash sufficient to build a few projects to pacify the public for a time, significant but far from sufficient to save the coast.

The levee board argues that the oil and gas industry could and should pay to either "fix" or mitigate for the obvious coastal damage that it has specifically created. The board has carefully limited the price tag of the lawsuit to pay only for the amount of land lost on the East Bank that is attributable to the energy production footprint.

The lawsuit was announced only after the board had carried out extensive scientific homework, which included commissioning a numerical modeling assessment of hurricane surge risk under current conditions. If the lawsuit goes forward despite legal objections by Gov. Jindal, the plaintiffs' attorneys will have a gold mine of research documenting the specific impact of oil and gas production on the coast, including published research on that subject by the well known late geologist Shea Penland, Ph.D.

The emphasis on basing the lawsuit on credible science stands in refreshing contrast to the state's history of determining coastal policy largely on political grounds. I hope for the ultimate success of this rogue action by the levee board, but at the very least the board and its current VP John Barry deserve great credit for instigating a coastal conversation that has long been overdue.

Len Bahr, Ph.D., is a coastal ecologist formerly with LSU, now retired after 18 years in the Louisiana governor's office as a coastal science adviser to five governors. He's the founding editor of a blog devoted to coastal issues: http://LaCoastPost.com.

 

© 2013 NOLA.com. All rights reserved.

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Permalink Reply by 1kw6x71km1v37 on July 29, 2013 at 9:14

LOL, I know the background of a couple of the attorneys whose firms took this case. They don't take looser cases. Long on foresight and adroit at in depth legal analysis, they win the cases they take on. The named defendants might as well fork the money over now and save the cost of litigation.

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Permalink Reply by Skip Peel - Mineral Consultant on July 29, 2013 at 10:57

Oil and gas industry must pay for the damage it's caused: Lt. General Russel L. Honore

Contributing writer, The Times-Picayune By Contributing writer, The Times-Picayune
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on July 29, 2013 at 4:00 PM, updated July 29, 2013 at 4:14 PM

The industry has a duty to repair the damage it did to these wetlands." -- Lt. Gen. Russel Honore

It's high hurricane season, the time of year when the threat of sudden disaster hangs like a dark and foreboding cloud over the people of southern Louisiana. For me, it's personal. Eight years ago, I flew into New Orleans aboard a Navy aircraft on a blistering August morning, after Hurricane Katrina left 80 percent of the city under as much as 20 feet of water.

Lt. Gen. Russel Honore (U.S. Army, Retired)

The storm made landfall some 60 miles to the south, packing 125-mile-per-hour winds that sent storm surge lashing at the city gates with a force that caused levees to fail and the city to flood.

More than 1,800 Americans died. Property damage, economic losses and relief efforts cost the country $250 billion. Much of the region has yet to recover.

Katrina was going to hurt us, no matter what. It hit us with its full wrath and fury, though, because a dramatic loss of our coastal lands has stripped away much of the region's natural buffer against hurricanes and storm surge - as Hurricane Isaac demonstrated just last year with an 11 foot storm surge.

These coastal lands - marshes, mud flats and barrier islands - are our first line of defense against the single greatest threat we face, the threat of catastrophic flooding from hurricanes.

If we are to protect the people of southern Louisiana from that threat, these coastal lands must be saved. They must be strengthened. They must be restored.

The people of our state are hard at work on that monumental task, but we can't do it by ourselves, nor should we.

The oil and gas industry, which has profited from our natural resources for more than a century, has an obligation to help, and it's time for that to happen. Here's why.

Since the 1930's, Louisiana has lost some 1,900 square miles of its coastal lands, enough to cover the entire state of Delaware. We're on track to lose another 700 square miles in the coming decades.

With each acre we lose, another layer of storm and flood protection goes with it. That makes the job of protecting our people more difficult and more costly.

There are several reasons for coastal land loss. The oil and gas industry, though, has exacerbated this loss, by cutting more than 10,000 miles of navigation canals and pipeline routes through our coastal wetlands.

The cuts have opened up these coastal lands to the forces of currents, waves and tides, introduced salt water to freshwater habitat, killed vegetation and hastened erosion over an ever widening expanse of our coast.

The industry has a duty to repair the damage it did to these wetlands, under the provisions of dredging permits and laws dating back more than a century. They also had a moral obligation to leave the land in as good a condition as they received it. Unfortunately, their obligations have not been met.

That's why the authorities responsible for helping to protect the people of New Orleans from catastrophic flooding - the Southeast Flood Protection Authority-East - filed suit last week against BP, Chevron, Exxon/Mobil, Shell and dozens of other oil, gas and pipeline companies, calling on them to keep honor their duty.

That means, first and foremost, stop slicing and dicing our coastal lands without repairing the damage. It means refilling, re-vegetating and restoring the cuts and canals already there. And it means chipping in the industry's fair share of the rising cost of protecting the people of New Orleans against the risk of catastrophic flooding.

These actions alone won't fully restore our coast. No one says they will. In combination with the comprehensive coastal restoration strategy our state has in place, though, the energy industry can play a leadership role in helping to strengthen our coast and the essential storm buffer it provides, by fulfilling its obligations and doing its part.

That's exactly what the board of the Southeast Flood Protection Authority - East wants to see happen.

Created by our state legislature in response to Hurricane Katrina, this Authority is the most knowledgeable group of professionals ever to be responsible for the levees that guard New Orleans from floods. Of its 11 members, the Authority's board of directors includes seven engineers, a meteorologist, a marine geologist, a certified public accountant and one of the nation's premier experts on the history of the Mississippi River levee system.

If you wanted to hand-select a dream team of committed professionals to oversee the levees that protect the east bank of New Orleans, this is the team you would pick.

They didn't undertake this action lightly. It was considered, researched, and deliberated upon for months, exactly as it should have been.

In the end, these professionals have a job to do, a solemn mission to do what it takes, whatever it takes, to protect the people of southern Louisiana.

They don't want our people to have to suffer the kind of death and destruction we went through with Katrina ever again - and neither do I.

As Commanding General of the First U.S. Army, Lt. Gen. Honore (U.S. Army, Retired) led the military relief efforts across the Gulf Coast in the aftermath of Hurricane Katrina in 2005.

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Permalink Reply by Skip Peel - Mineral Consultant on July 30, 2013 at 2:51

The Big Oil lawsuit and wetlands war 

Clancy DuBos on the local flood control board suing Big Oil for its role in wetlands loss July 30, 2013 News by Clancy DuBos @clancygambit

It didn't take long for the oil and gas industry to play a political trump card in the nascent but epic legal battle over who should pay to rebuild Louisiana's vanishing coastal wetlands. Gov. Bobby Jindal rushed to the industry's defense the same day that a local flood protection authority sued 97 oil and gas companies over coastal land loss. Jindal said the flood board had been "hijacked by a group of trial lawyers."

  The governor also claimed the Southeast Louisiana Flood Protection Authority-East (SLFPA-E), which filed the suit on July 24, "overstepped its authority" by tackling coastal land-loss issues, which historically are overseen by the Coastal Protection and Restoration Authority. Jindal called the suit "nothing but a windfall for a handful of trial lawyers."

  It should come as no surprise that the energy industry, arguably the richest in the world, applied political pressure to resolve a potentially expensive legal issue. After all, political connections — forged by free-flowing campaign money and year-round lobbying and schmoozing — have allowed oil and gas companies to have their way with state regulators, governors and legislators for decades.

  And why not start with pressure from the top? The list of named defendants includes some of the biggest names in Big Oil — and some of the biggest political contributors: Koch Industries, Atlantic Richfield, BP, Chevron, ConocoPhillips, Exxon Mobil, McMoRan, Shell, Tennessee Gas Pipeline and Pickens, to name just a few.

  Coincidentally, or perhaps not, Jindal issued his attack against the lawsuit and the plaintiff lawyers from Aspen, Colo., where he was attending the Republican Governors meeting. Last Thursday, July 25, Jindal was scheduled to speak at an Aspen Institute-sponsored event called The McCloskey Speakers Series. David Koch, one of the Koch brothers, is on the Board of Trustees of the Aspen Institute. Koch Industries is among the named defendants in the lawsuit.  

  Applying political pressure from the get-go also follows a familiar script. Two decades ago, when local plaintiff attorneys took on Big Tobacco, the first thing the cigarette companies did was seek a meeting with then-Louisiana Attorney General Richard Ieyoub to try to convince him it was a bad idea for the state to follow the lead of Mississippi, which had just filed its own suit against the tobacco industry.

  To his credit, Ieyoub ignored the arguments of the tobacco lawyers and lobbyists. As a result, state lawmakers and Jindal are still spending the billions that Louisiana received for successfully pursuing a case against the tobacco industry.

  Another line of attack by Big Tobacco was to demonize the plaintiff attorneys as greedy trial lawyers out to make a fast buck at the expense of taxpayers. That was a lie, but apparently it's still a popular yarn in some quarters, judging by Jindal's statement last week.

  Ironically, the first lawyers who will make piles of dough on the lawsuit are those working for the oil and gas defendants. They bill by the hour — at sky-high rates — and get paid promptly by clients who believe, like the late Vince Lombardi, that winning is the only thing.

  By contrast, plaintiff lawyers hired by the flood authority will get paid (a sliding-scale percentage of the damages awarded) only if they win — or if the flood board abandons the suit. In the latter instance, the plaintiff attorneys will get reimbursed for their out-of-pocket expenses (which could run into the millions) and for "reasonable fees."

  "[The flood authority lawyers are] taking a tremendous risk in filing this suit," said John Barry, flood board vice chairman and a historian. "They only get paid if they win. Before they win, they will have to put at risk not only tens of thousands of hours of legal work but also millions of dollars funding the scientific research to back up our filing. They could win big. They could also go bankrupt if they lose."

  Barry issued a measured response to Jindal's broadside, which followed similar criticism by state Coastal Protection and Restoration Authority Chairman Garret Graves, who doubles as Jindal's top advisor on coastal matters. Barry has worked closely with Graves on coastal restoration issues, and Barry said he believes the governor has done a lot for Louisiana's coast.

  "It pains me personally to be at odds with them over this," Barry said. "But our board is independent and arrived at its position based on its collective scientific and policy judgment."

  Barry added that Jindal cited the wrong statute when he said that the flood board did not have authority to enter into a contingency-fee contract with its lawyers. "He is relying on the statute for state boards and commissions, not the statute that applies to the [flood] authority," he said. "No one hijacked this board. Before anyone ever approached a lawyer, the board discussed whether we wanted to do this. We agreed — and we were unanimous — that we did."

  The flood protection authority was created by the Legislature after Hurricane Katrina as part of levee board consolidation in southeast Louisiana. SLFPA-E comprises the Orleans Levee District, the Lake Borgne Basin Levee District (in St. Bernard Parish) and the East Jefferson Levee District.

In addition to taking on the oil and gas industry, Barry and other flood authority board members face near-certain political fallout for their role in the lawsuit. In fact, sources say the governor already is making moves against Barry — despite saying publicly he would not interfere with the lawsuit.

  Barry's term on the flood board expired June 30. State law requires a local nominating committee (comprised of area business leaders) to either renominate Barry or to nominate several others. The governor gets to make the appointment. The vetting committee members typically meet in the autumn and are mostly if not all Jindal supporters. They could ask the governor to reappoint Barry, who has been a favorite of the group, but Jindal is notoriously intolerant of people whose actions displease him or conflict with his ambitions.

  If Jindal's past actions are any indication, he is already making moves to get Barry off the board. He also will find ways to put pressure on other flood authority board members to withdraw their support for the lawsuit. For example, board President Tim Doody's term also expired June 30. Doody works at the downtown law firm of Chaffe McCall, one of the city's old-line defense firms. It would not be difficult for Jindal and/or Big Oil to put pressure on the firm as well as Doody.

  But Jindal's options also could be limited, at least somewhat. If the vetting committee renominates Barry and Doody, the governor may have no options. If Jindal tries to replace them with nominees who oppose the suit, area state senators could refuse to confirm them next year, and they would have to resign from the board. While board members are appointed by the governor, they do not serve at his pleasure; they serve staggered four-year terms and remain on the board until their replacements are named.

  "I would like to stay on the board, no question about that," Barry said, "and I also understand that this might prevent that." Barry added that he was compelled to weigh his desire to continue as a commissioner against the importance of restoring coastal Louisiana. When he did, he said, "It was a pretty easy choice to make."

  The political pressure that the defendants are likely to bring won't end with Jindal and Graves' opposition. Former Congressman Chris John of Lafayette, who now leads the Louisiana Mid-Continent Oil and Gas Association — a powerful player in state politics — already has said the group may ask lawmakers to derail the lawsuit. Many of the association's members were named as defendants.

  The industry may even try to get Attorney General Buddy Caldwell, who approved the flood board's contingency contract with lead plaintiff attorney Glad Jones and other lawyers, to withdraw that approval. Considering that Caldwell readily approved contracts for lawyers to sue BP on behalf of public bodies after the Deepwater Horizon disaster, such a reversal seems unlikely — but that won't stop the energy giants from trying.

  If it survives the initial procedural and political grenades that the defendants are expected to lob, this lawsuit has the potential to be even bigger (in terms of scope and damage awards) than the BP litigation. Barry says other flood protection boards across coastal Louisiana "may have no choice" but to join this litigation or file their own lawsuits if the local flood authority gains traction in court.

  Jones, the lead plaintiff lawyer, says he and his colleagues are "ready for this fight." While Barry struck a conciliatory tone in response to Jindal's opening volley, Jones answered in kind.

  "The governor's power play on behalf of oil and gas companies is, to say the least, disappointing to the good civil servants on the Southeast Louisiana Flood Protection Authority-East," Jones wrote in an email to Gambit. "While the coastline disappears, this governor decides to play politics and make demands on an independent board rather than take steps to hold oil and gas companies responsible for their share of the damages. We hope the governor and his team will put politics aside and do the right thing here, which is let the SLFPA-E do its job and protect the people of Greater New Orleans as they are charged to do."

At some point, and fairly soon, the defendants will have to fire back on another front by formally answering the lawsuit. The suit was filed in Civil District Court (CDC) in New Orleans. The case was allotted to Judge Paula Brown, who was first elected to the CDC bench in 2010.

  The defendants' first line of legal defense may well be a "notice of removal" to transfer the case to federal court, where judges and juries — and jurisprudence — are likely to be more favorable to them. That will come even before the oil and gas defendants file general denials of the flood board's allegations. But removal to federal court is not a slam-dunk.

  "This was a very carefully drawn lawsuit," said one defense lawyer familiar with the case, who asked not to be identified. "There are no federal defendants, and all the current defendants have ties to Louisiana. The demands are all couched as tort claims under Louisiana law. Unless the petition is amended or other defendants are added from outside Louisiana, the case could easily stay at CDC."

  No matter where it's tried, the case also could drag on for years.

  The suit seeks environmental damages for oil and gas exploration and development east of the Mississippi River, mostly in St. Bernard and Plaquemines parishes. It focuses on miles of pipeline and access canals that oil and gas companies carved out of Louisiana's coastline, starting in the 1930s. If the suit is successful, it will be to Big Oil what the Tobacco Litigation was to that industry: a game-changer.

  "If they believe the expert scientific testimony given by our witnesses, then we win the lawsuit," Jones told writer Bob Marshall of The Lens. "That's what this will all come down to — the science."

  Well, almost. It also will come down to the law. If the case is removed to federal court, say defense attorneys interviewed by Gambit, there is ample jurisprudence that could scuttle the case. In state court, where the case was filed, the law offers more opportunities for the plaintiffs to succeed.

  Jones worked closely with Barry, author of Rising Tide, to draft the suit. The opening pages of the suit read like a chapter of Barry's award-winning book, which chronicled the catastrophic 1927 flood. A few excerpts:

  • "Coastal lands are the natural protective buffer without which the levees that protect the cities and towns of southern Louisiana are left exposed to unabated destructive forces. This protective buffer took 6,000 years to form. Yet ... it has been brought to the brink of destruction over the course of a single human lifetime. Hundreds of thousands of acres of the coastal lands that once offered protection to south Louisiana are now gone as a result of oil and gas industry activities."

  • "For nearly a century, the oil and gas industry has continuously and relentlessly traversed, dredged, drilled and extracted in coastal Louisiana. It reaps enormous financial gain by exploiting the resources found there, sharing some of that bounty with the many residents whom it employs. Yet it also ravages Louisiana's coastal landscape. ... This canal network injects corrosive saltwater into interior coastal lands, killing vegetation and carrying away mountains of soil. 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 suit also notes the more than 200 miles of levees, hundreds of floodwalls and floodgates, and other flood control structures operated and maintained by the three area levee districts. It then goes on to describe "the crisis" presented by coastal wetland destruction:

  "Coastal lands are the first line of defense for south Louisiana's communities against the destructive force of hurricanes. Those lands form a buffer that reduces the height and energy of hurricane storm surge and waves, thereby aiding the Authority in its mission to protect south Louisiana. Hurricanes lose intensity as they travel over land. Hence, the more land that a given hurricane must traverse before reaching Louisiana's coastal cities, the weaker that hurricane's impact on those communities, and, concomitantly, the more effective the levee system.

  "The coastal landscapes and levee systems thus work in harmony, with the former acting as a natural first line of defense in abating the flood threat, and the latter serving as the last line of defense against the widespread inundation of inhabited areas."

  The suit alleges that the land loss caused by oil and gas exploration and development "has raced on unabated since the early 1930s, averaging thousands of acres lost per year ... and is anticipated to grow at an aggressive pace. ... The coastal lands that remain have been left severely diseased by the constant intrusion of corrosive saltwater, leaving them highly susceptible to being washed away by the next storm. This consequence was demonstrated by the tremendous excavation of wetlands caused by Hurricane Isaac in August 2012."

  The suit claims that the energy industry's network of canals and channels — many of which were dug before some of the federal and state laws cited in the lawsuit — have killed off vegetation, inhibited sedimentation, eroded coastal lands and generally caused or accelerated coastal land loss.

  "Oil and gas activities have transformed and continue to transform what was once a stable ecosystem of naturally occurring bayous, small canals and ditches into an extensive — and expanding — network of large and deep canals that continues to widen due to Defendants' ongoing failure to maintain this network or restore the ecosystem to its natural state," the suit alleges. "That canal network continues to introduce increasingly larger volumes of damaging saltwater, at increasingly greater velocity, ever deeper into Louisiana's coastal landscape and interior wetlands.

  "The increasing intrusion of saltwater stresses the vegetation that holds wetlands together, weakening — and ultimately killing — that vegetation. Thus weakened, the remaining soil is washed away even by minor storms."

  The suit also alleges that "additional, ongoing oil and gas activities" continue to contribute to coastal land loss. Those activities include road dumps, ring levees, drilling activities, fluid withdrawal, seismic surveys, the use of marsh buggies, spoil disposal and dispersal, watercraft navigation, impoundments and propwashing/maintenance dredging.

  The citation to "ongoing oil and gas activities" is no doubt intended to address anticipated legal defenses by the energy industry, including an assertion that the claims brought by the flood authority expired or were waived by lax state enforcement. That will be one of the main legal fights in the early, pre-trial stages of the litigation — if Jindal and lawmakers don't quash it sooner.

  The suit further claims that the oil and gas companies exacerbated coastal land loss by failing to maintain the canal network and banks of the canals.

  "Those acts and omissions, which continue through today, have caused both the erosion of the canal banks and the expansion beyond their originally permitted widths and depths of the canals comprising that network, resulting in the steady infiltration of saltwater into the coastal lands," the suit contents. "The consequent ecological degradation to these areas has produced weakened coastal lands and extensive land loss. This in turn has created markedly increased storm surge risk, attendant flood protection costs, and, thus, damages."

  The suit does not seek a specific dollar amount in damages, but it does identify specific "costs" to the flood protection authority as a result of oil and gas activities. Those costs include abatement and restoration of coastal wetlands; paying for the hurricane and storm damage risk reduction system put in place by the U.S. Army Corps of Engineers (including the local share of maintaining levees — estimated to be many millions); levee certification costs (including extensive engineering studies); and "additional costs associated with flood protection."

  The suit also seeks court costs, expenses, attorneys' fees and "other damages."

  The legal framework for the suit is grounded in both state and federal law. Jones and Barry acknowledge that the canals were legally permitted, but they contend that the defendants have not lived up to promises — and, in some cases, legal requirements — that the canals be maintained so as not to damage area levee systems or increase flooding in residential areas.

  The suit cites six theories of recovery under the law — negligence, strict liability, a centuries-old legal concept known under Louisiana law as "natural servitude of drainage," public nuisance, private nuisance and breach of contract.

  Natural servitude of drainage prohibits one property owner from taking action — or failing to take action — that causes adjoining or nearby property owners to flood. In this case, the suit alleges that destruction of the wetlands has changed the natural hydrology of southeast Louisiana such that areas in and around New Orleans now flood because of oil and gas activities in the natural drainage areas below the city.

  Barry says the flood authority will have to spend millions more in future years to protect people and property in the metro area because of the coastal land loss.

  "No one denies — not even the oil industry — that the canals they dredged helped cause this problem," he says. "The industry is not responsible for all of the land loss. There are multiple causes for that. But the federal government has already spent more than $15 billion for its share of the problem. All we're asking of the oil and gas companies is to pay their fair share for the damage that they did."

  "Someone will pay the costs of future flooding and flood protection," Jones said. "This lawsuit will determine who pays those costs — the citizens, the state and feds alone? Or will the oil and gas companies pay their fair share as well?"

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Permalink Reply by Skip Peel - Mineral Consultant on July 30, 2013 at 6:25

Swamp Thing: Lawsuit Blaming Oil Companies For Wetland Loss Might As Well Blame The Plaintiffs - forbes.com - 7/30/13

 

The multibillion-dollar lawsuit that Louisiana plaintiff lawyers launched against the oil industry last week is based upon a compelling theory: In their century-long quest for oil and gas, drillers helped destroy the state’s protective wetlands by digging a network of canals that introduced “corrosive salt water” into the delicate ecosystem.

The 24-page lawsuit on behalf of several local levee boards names a laundry list of oil companies that have done business in Louisiana, from Alta Mesa Services to Yuma Exploration, including majors like BP BP -3.87%, Chevron CVX -0.55% and ExxonMobil. It blames them for causing erosion and loss of plant life that is causing the wetlands to shrink at a rate of more than 30 square miles a year.

There’s only a few problems with this theory: First, the Louisiana Supreme Court appears to have ruled out such claims in a 2005 decision. Second, lawyers tried the same arguments when they sued the Army Corps of Engineers for Hurricane Katrina damages to New Orleans, and got poured out of court. Finally, global warming and flood-control levees themselves probably have more to do with Louisiana’s shrinking coastline than anything the oil companies have done.

“This is just the latest chapter in the Louisiana entitlements saga,” said Ed Richards, a professor of public-health law at the Louisiana State University Law Center and expert on flood-related litigation. “A lot of the bad science that was developed for the Katrina levee cases is being recycled here.”

Richards is no right-wing climate-science denier. His concern is lawsuits like this distract Louisiana residents from the fact that the state’s wetlands are doomed to disappear into the Gulf of Mexico for other reasons, and the remediation measures the levee boards want the oil companies to pay for might only accelerate the process.

Some scientific background: Southern Louisiana and the City of New Orleans sit on a vast delta which, like the rest of the world’s great river deltas, is surprisingly young. The land formed 8,000 to 10,000 years ago when the Mississippi River was flush with runoff from retreating glaciers and the Gulf of Mexico sea level was hundreds of feet lower than it is today. A long period of relatively stable and rising temperatures, accompanied by rising sea levels, caused the sediment in the Mississippi to pile up where it entered the Gulf.

When the delta first started forming, Richards says, “the Louisiana coastline was probably halfway to Cuba.”

As the sediments piled up and sea levels rose, several things happened. The river’s velocity slowed down and the weight of the sediments pushed the surface down in the process known as subsidence. Subsidence can be accelerated by industrial processes such as pumping groundwater out of sandy aquifers, although it is unlikely that simply pumping oil out of rock thousands of feet below the surface has much of an effect. Richards’ late \ colleague, the LSU geologist Roy Dokka, showed that there has been significant subsidence  — more than two feet in the New Orleans area since 1955 — even in areas with no oil drilling.

By the 19^th century loggers got into the act, clear-cutting the cypress forests that once dominated the landscape south of New Orleans and digging canals to haul the valuable lumber out. Richards said the star-shaped pattern of the lumber canals can still be seen in aerial photos, overlaid by the straight canals oil drillers started digging in the early 1900s. What had been forest subject to flooding several times a year quickly became wetlands as the cypress trees were removed, he said.

“What you see with the Louisiana coast is pretty much all invasive species subsequent to the cypress,” Richards said. “The oil companies didn’t start this process, and they didn’t cut the big trees.”

In the lawsuit, the levee boards blame the oil companies for destroying the wetlands and increasing the financial burden on them to protect residents from floods:

These activities have changed not only the topography of the coastal lands, but the location, flow and natural pulsing patterns of the waters moving through those lands, and the process of sediment deposition that naturally renourishes them. The result has been to accelerate land loss and leave much of those coastal lands that remain in a diminished and vulnerable state.

But that same charge could be made against the government, for constructing hundreds of miles of levees that keep the Mississippi within its banks and prevent the flooding that used to dump sediment across thousands of square miles of low-lying delta land.

In addition to scientific objections, there’s a big legal barrier in the way of this lawsuit. The Louisiana Supreme Court, in a 2005 decision called Terrebonne Parish v. Castex, rejected a lawsuit by a local school board trying to force an oil company to restore marshlands it owned to their original state. The school board, like the levee boards, argued drillers cut canals that destroyed vegetation and caused the land to flood. But nothing in the drilling lease provided for such remediation, the court held, and the court declined “to order piecemeal restoration of the coast in some fashion” instead of leaving that to legislators and environmental experts.

The lawsuit by the levee boards relies on Louisiana state law, including Civil Code 656, which protects the “natural servitude of drain.” But the state Supreme Court considered similar state laws in the Terrebonne case and rejected them in favor of a simple analysis of the leases oil companies signed in order to drill.

The whole lawsuit, Richards told me, might be an effort to answer the “political question about whether the majority on the Louisiana Supreme Court has changed. Terrebonne was decided 4-3 and Chief Justice Pascal Calogero, who wrote the opinion, has since retired.

The levee boards, like Terrebonne Parish, want the oil companies to pay for billions of dollars worth of projects designed to halt the erosion of the Louisiana coast. But Richards is skeptical they’d help, and in some case they might actually make things worse. Most of the canals were cut by pushing mud into banks called spoils on either side. Those have since become home to trees and wildlife that would lose their habitats if they were bulldozed back into the canals.

The last time disaster struck New Orleans, plaintiff lawyers organized thousands of homeowners to sue the Army Corps of Engineers, claiming its negligence caused the levees to collapse and flood the city. A federal judge allowed those lawsuits to proceed, even granting class-action status in defiance of prohibitions in the Federal Tort Claims Act. The Fifth Circuit in New Orleans first ruled for the plaintiffs as well, then reconsidered, deciding that the 1927 Flood Control Act gave the government absolute immunity from suits over flooding damage.

This being Louisiana, and the defendants being corporations instead of the government, this case might also survive a trial judge’s scrutiny. But the plaintiffs will have a tough time getting around Terrebonne Parish, unless the Louisiana Supreme Court has changed its views on contract law. And even if they win, it’s unlikely the billions of dollars they get from the oil companies will halt the steady erosion of Louisiana’s coastline.

“It’s an absolutely fascinating confluence of environmentalists and state people denying the reality of ocean rise, climate change and science,” Richards says of he lawsuit. Down in Louisiana, he adds, “we’re all about other people’s money.”

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Permalink Reply by courtney oliver on July 30, 2013 at 8:35

Having worked as a geologist for 60 years in south Louisiana and have been an expert witness in the loss of land law suit, the production of oil and gas does subside the land. I have proved this form production as deep as 13,000'

Permalink Reply by Skip Peel - Mineral Consultant on July 30, 2013 at 9:19

courtney,  thanks for the reply.  It doesn't seem many wish to weigh in on the merits of the suit which does not surprise me.  I think most haven't heard enough to decide.  Personally I'm surprised that such deep production contributes to subsidence.  To your knowledge have previous court rulings established a connection between hydrocarbon production at depth and surface subsidence?  Is there case law that can be used to support the plaintiffs claims in this regard?

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