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 Skip Peel - Mineral Consultant on
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You'll get no disagreement from me on the wide enjoyment of the money that came from and continues to come from the industry. And the causes of land loss are multiple with different culpable parties. Mitigation after all these years of damage and neglect will be a huge job and require billions of dollars and decades of work. IMO all the parties responsible should contribute some portion of the whole cost. One question is who will pay and how much? Another is how best to go about the work? Regardless of answers to those questions the politics will be intriguing for those that have some experience with the workings of government and politics in LA. It should make another good book topic.
Suggested books:
Louisiana Hayride
The Earl of Louisiana
The Last Hayride
Bad Bet On The Bayou
Edwin Edwards, bio
Inside The Carnival
This lease?
The Win or Lose Oil Corporation went out of business in 1951, but as much as $881 million has gushed into bank accounts of the well-connected from a single oil lease, thanks to shenanigans hatched in Baton Rouge over 70 years ago that Huey’s political predecessors perpetuate to this day.
From The Hayride http://thehayride.com/2012/05/huey-longs-shadow-of-corruption-still...
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Permalink Reply by jim weyland on
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i'm an oceanographer by education. and, as badly as the sla marshlands have been cut up over the years, there's one huge thing that alone could reverse the damage, although it'll never happen for all of the obvious reasons.
note: i've seen the damage/situation first hand. in the '70s i was flying out at least two times a week to the platforms from just about everywhere in sla where phi had a shore base. the damage is just as bad as it can be. it's horrible and heartbreaking to see. to me, it makes me feel guilty of/for the sins of the fathers.
how do/can we make things right? easy, blast any and all corps facilities that serve to keep the river from taking (and switching) the course(s) it would otherwise like to take at any point in time but for those facilities. imo, with replenishing sediments once again being deposited in the delta, erosion would cease and over time the delta will be refreshed/renewed. and, it will grow again.
imo, sadly, nothing short of such action will save the delta from its current slow and steady death march.
'
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Permalink Reply by Skip Peel - Mineral Consultant on
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jim, I don't think anyone in the debate would consider letting the Mississippi River take the Atchafalaya river bed and leave Baton Rouge and New Orleans high and dry. We'll never get back all that we have lost but we can rebuild some and attempt to protect it for future generations.
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skip,
sadly, imo, it's not just the atchafalaya dams/spillways at, i think/recall, new roads, la, that need to go.
there are other facilities constraining the river's ability to do what it needs to do. that is, to flow as it'd like to unimpeded to and through all the other major bayous to the gulf. my la geography isn't strong but here are several of them: tetche, lafourche, and terrebonne. unless they're all opened up, just busting up the new roads facilities won't get the job done. sadly, only doing that would merely slow the rate of the delta's decline. however, just doing that, again, imo, would cause beach/cheniere replenishment in the western sla parishes and the same for beaches/barrier islands of the eastern 2/3's of coastal tx counties.
all major untamed river deltas look the same from the perspective of aerial photography. and, i think you know what they look like; it not, there should be plenty of google images.
i like to ask folks to imagine the movement of the terminus of a water hose with too much water going through it to stay in one place. what does it do? right, it 'flops' around.
this is exactly what 'free' rivers do. they form deltas via that 'flopping' around and in doing so depositing their carried sediments on existing land or causing new land to be formed over time via the sediments being dropped at land's end. a channeled and leveed river causes those 'lifegiving' sediments to race past the point they could have any positive effect inre: maintaining/building a river delta.
jim
p.s. in my prior post i said that the efforts needed, imo, to save/rebuild the river delta wouldn't happen because there's just too much vested interest. please know that i, like you, wouldn't want to see the lives/wellbeing of all those living in sla disrupted/destroyed. it's just my unalterable belief that w/o doing the things i suggest, the river delta's decline will continue to its' inevitable end. (but of course, none of us currently extant will be around by then; accordingly, and until then, laissez les bons temps rouler.)
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Permalink Reply by Skip Peel - Mineral Consultant on
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There have been some demonstration or test projects related to diverting river silt to deteriorating marshes and attempts at re-planting marsh grasses. As far as I know none have been on the kind of scale required to successfully restore a marsh. The challenge is funding.
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One day, irregardless of man and his Lilliputin efforts to capture it, the Mississippi River may reroute itself through the Atchafalaya Basin, blowing out the levees on both sides and restoring Bayou Chene in all it's former glory:
https://encrypted-tbn3.gstatic.com/images?q=tbn:ANd9GcSOq_MlumyQc8X...
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Permalink Reply by Skip Peel - Mineral Consultant on
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Re: Bayou Chene. See Atchafalaya House Boat, excellent program from Louisiana Public Broadcasting.
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Did somebody say houseboat on the Atchafalaya?
https://encrypted-tbn3.gstatic.com/images?q=tbn:ANd9GcTdHjfT2J26abR...
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there are only two environments i've experienced where if you're more than a very few miles into them and provided you're off their beaten pathways or navigable, by power, waterways, civilization seems to be a thousand miles away: the atchafalaya swamp and a good triple canopy jungle. imo, both are the real deal, primal experiences.
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Permalink Reply by Skip Peel - Mineral Consultant on
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The natives just call it, The Basin. If anyone calls it, The Spillway, it marks them as a foreigner....from Baton Rouge most likely. Nice houseboat, cs!
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Permalink Reply by Skip Peel - Mineral Consultant on
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LOGA Will Get Unwanted Extra Attention
The same day the regular session convenes, on March 10, is the same day the Louisiana Oil and Gas Association heads back to court. LOGA is arguing that Attorney General Buddy Caldwell illegally authorized the flood protection authority to hire outside counsel for its historic lawsuit.
It has become a nasty affair, with LOGA president Don Briggs failing to show up for court on two occasions roughly a week ago. In a related deposition last month, Briggs also repeatedly fumbled answers that were meant to prove he had evidence to back up his arguments. So, at least from the perspective of LOGA's enemies, telling the truth during testimony could be a recurring theme this session.
The timing couldn't be worse, with LOGA mounting an aggressive legislative strategy against legacy lawsuits and the flood authority action. So far the dustup in court has been enough to overshadow LOGA's public relations push, ChangeLouisiana.org. Even though a deep bench of corporate lobbyists will have the group's back, LOGA's legislative efforts this year will certainly be under the microscope.
As for LOGA's ally Sen. Robert Adley, not one to shy from a fight, he already has picked another. He wants restrictions on campaign wants restrictions on campaign contributions judges receive from lawyers with cases before them.
Adley's legislation, still to be filed, grows out of the ethics complaint he filed this week with the state Supreme Court against District Judge Janice Clark, who is presiding over the case involving LOGA and Caldwell. Attorney Wade Shows co-hosted a fundraiser for Clark last week, which prompted the investigation request. Shows is representing Caldwell in the case.
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Permalink Reply by Skip Peel - Mineral Consultant on
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LEAVING LOUISIANA?
An empty threat from oil industryshreveporttimes.com - 3/9/14 - Opinion column by PSC Commissioner Foster Campbell
For 20 years I have promoted a tax on oil and gas imported into Louisiana for processing. I have fought the major oil companies over this issue like David battling Goliath, but I take comfort in knowing it’s the right thing for our state.
A Processing Tax would replace the outdated 1921 Severance Tax, which only taxes oil and gas produced in Louisiana. Replacing the Severance Tax with the Processing Tax would reduce taxes for in-state producers like our neighbors in the Haynesville Shale, and for the first time it would address the billions of barrels of oil imported into Louisiana for processing each year. We could raise enough money to eliminate the state Income Tax. We could begin a serious effort to restore our coastline, protecting New Orleans and coastal communities from storms and floods. We could provide stable funding for our schools, roads, health care and other services.
Most importantly, Louisiana could begin raising itself off the bottom and finally realize its potential as one of the most progressive states in the South. Standing in the way are the major oil companies producing billions of barrels of oil off our coast in the Gulf of Mexico. Its representatives have said the industry will leave Louisiana if we tax oil and gas processed in Louisiana.
It’s an empty threat, considering that we have the oil refineries no other state wants, 50,000 miles of pipelines, the Mississippi River, a trained workforce and, most importantly, the abundant oil and gas deposits in Louisiana and off our coast. Just how empty is this threat was made clear in a nowinfamous deposition taken last month in a lawsuit filed by the Louisiana Oil and Gas Association.
LOGA is suing Attorney General Buddy Caldwell in an attempt to quash a landmark lawsuit brought by the Southeast Louisiana Flood Protection Authority East, based in New Orleans, alleging that 97 oil, gas and pipeline companies damaged the coastal wetlands and worsened flood protection in southeast Louisiana. The flood authority lawsuit is a decisive event in the history of Louisiana’s 100-year relationship with oil. A public entity has drawn a line in the dirt, saying the oil industry bears partial responsibility for Louisiana’s catastrophic coastal land loss and should help pay the billions of dollars needed to stop and reverse it.
Gov. Bobby Jindal opposes this argument and will join with LOGA in the Legislature to kill the lawsuit. Legislators allied with the oil industry have vowed to undo the suit in the session that starts Monday. With the governor and potentially the Legislature hostile to their arguments, the Southeast Flood Authority now faces the prospect of having the third branch of state government, the courts, closed to it as well.
That is why the statements made under oath by LOGA President Don Briggs last month are making the rounds of political and industry circles. A longtime oil lobbyist, Briggs has consistently defended the industry against lawsuits, environmental critics, the Processing Tax and repeal of lucrative state and federal tax breaks. Recognizing the threat from the Flood Authority lawsuit, Briggs and LOGA sued the attorney general to overturn his decision allowing the authority to hire outside lawyers to handle its case. One of those outside lawyers, Rock Palermo of Lake Charles, deposed Briggs on Feb. 20. He focused on Briggs’ standard response to threats against the industry: That oil companies will leave Louisiana if they are found liable for coastal damage. Palermo asked if Briggs had “any facts or information” to support his view that the oil industry was not to blame for coastal erosion. Briggs answered, “No … nothing.”
Palermo asked: “Is it your opinion that oil and gas companies are leaving Louisiana because of the threat of lawsuits?”
Briggs: “Yes.”
Palermo: “Which oil companies have left Louisiana because of lawsuits?”
Briggs: “I don’t know.”
Palermo: “Do you have any facts or data to support your opinion?”
Briggs: “No.”
Palermo: “Is it your belief that oil and gas companies are not coming to Louisiana because of the threat of lawsuits?”
Briggs: “Yes.”
Palermo: “Which oil companies have decided not to drill in Louisiana because of the threat of lawsuits?”
Briggs: “I don’t know.”
Palermo: “Do you have any facts or data to support your opinion?”
Briggs: “No.”
The chief lobbyist for the oil industry in Louisiana went under oath and revealed that the statements he’s made for years to protect his clients’ privileged position in Louisiana are empty rhetoric with no factual support.
Now that Don Briggs has been exposed as Chicken Little, the question becomes whether the Legislature will continue to buy the oil industry’s “sky is falling” rhetoric and close the courthouse door to those trying to hold it accountable for its actions in Louisiana.
Foster Campbell is the north Louisiana representative on the Louisiana Public Service Commission. You can reach him at 318-676-7464 or foster.campbell@la.gov.
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