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?”
Having heard Jindal deliver a couple of public addresses in years past, I always figured the guy had vacant space for rent upstairs.
Levee authority, energy firms argue in court over law passed to kill wetlands lawsuit
Mark Schleifstein, NOLA.com | The Times-Picayune The Times-Picayune on December 10, updated December 10, 2014 at 5:12 PM
Attorneys representing the east bank levee authority and dozens of oil and gas companies verbally duked it out in New Orleans federal court Wednesday (Dec. 10), in a hearing over the legality of a state law designed to block the authority's environmental damages lawsuit against the companies.
U.S. District Judge Nannette Jolivette Brown did not immediately rule on the Southeast Louisiana Flood Protection Authority-East's request for her to ignore Act 544. Legislative sponsors and the energy companies contend the law has the power to block the suit - a notion the levee authority disputes.
Brown also has not yet ruled on a variety of motions filed by the energy companies to dismiss the lawsuit outright.
The lawsuit, filed last year by the levee authority, seeks to force 86 oil, gas and pipeline companies to repair damaged coastal wetlands they damaged or to pay for restoration projects. The authority maintains the wetlands damage reduced the natural protection of east bank levees.
Wednesday's one-hour hearing focused on the state law passed in May at the behest of Gov. Bobby Jindal, who opposes the suit against the energy companies. The levee authority contends the law does not apply to it, and that it violates various provisions of the state Constitution, arguments it successfully made earlier before a state judge in Baton Rouge.
Judge Janice Clark ruled in October, in a lawsuit filed by the Louisiana Oil and Gas Association, that the new state law doesn't apply to the levee authority because the law improperly listed the independent, regional authority as a local agency. LOGA's membership includes many of the defendants in the federal suit.
Clark also found that the law violates the state Constitution's separation of powers clause because the law was the result of an improperly advertised local bill, and because it violated the state Constitution's requirement that the legislature must write laws so they protect lands held in public trust, which includes the state's coastline.
Clark presented her ruling in a court minute entry and has not yet issued a formal opinion, James Swanson, an attorney representing the levee authority, told Brown, the federal judge. When that opinion is issued, Swanson said, it will be able to be appealed by LOGA directly to the state Supreme Court, since Clark ruled on the law's constitutionality.
Brown questioned both Swanson and attorney Keith Jarrett, who represents Shell Oil Co. and was arguing on behalf of all the company defendants Wednesday, about why she was being asked to address questions about the definitions contained in the state law.
"If in fact, we're dealing with just some faulty drafting of legislation, why is it the purview of the federal court to come in and clean it up?" Brown asked.
The levee authority contends the law doesn't apply to it in part because it used the words "state or local governmental entity" to describe what agencies were prohibited from filing wetlands damage lawsuits. Swanson said the law that Act 544 amends defines "local government" to mean parishes or cities, and specifically excludes regional levee authorities.
Levee authorities also are not state government agencies, Swanson said. They are considered to be "political subdivisions," a third type of governmental agency, he said.
But Jarrett said there's a difference between the words "local government" used in the law's definition, and the broader "local governmental entity" used in Act 544, which he said was meant to include the levee authority.
"We don't think it was a drafting error," Jarrett said. "It could have been clearer, yes, but we think it was clear enough. We all know what was intended."
Swanson said that even if the law is found to apply to the levee authority, the law specifically allows levee districts to file environmental damage suits, and the three levee districts that the levee authority oversees are co-plaintiffs in the suit. Thus, he said, the suit should still be allowed to continue.
Clark's decision also found the new law was unconstitutional because it sought to dismiss the levee authority's suit, even after Clark had already ruled that the authority had the power to sue the companies. Clark indicated that passing a new law to reverse her decision violated the separation of powers clause.
The energy companies contend that several state Supreme Court decisions allowed the Legislature to pass laws to prohibit pending lawsuits, even when the underlying issue was already in court. They cited as an example the 2001 Supreme Court decision upholding a state law that prohibited the city of New Orleans from suing gun manufacturers.
But Swanson said that in the gun ruling case, the Legislature acted before a court had ruled. In the levee authority case, he said, Clark had already ruled the lawsuit to be valid.
© 2015 NOLA.com. All rights reserved.
Gov. Bobby Jindal asks state Supreme Court to uphold law banning wetlands damage suit against oil companies
Mark Schleifstein, NOLA.com | The Times-Picayune By Mark Schleifstein, NOLA.com | The Times-Picayune on January 09, 2015 at 11:36 PM, updated January 10, 2015 at 9:00 PM
Gov. Bobby Jindal has asked the Louisiana Supreme Court to uphold the constitutionality of a law passed to block the east bank levee authority's wetlands damages lawsuit against more than 80 oil, gas and pipeline companies.
Attorney Jimmy Faircloth, who lobbied the 2014 Legislature on behalf of Act 544 for the governor's office, filed paperwork with the Supreme Court Tuesday. The filing challenges a Dec. 3 judgement by 19th Judicial District Court Judge Janice Clark that declared the law unconstitutional.
"We are pleased that the ruling has been appealed and that the constitutionality of the statute is being defended," said Mike Reed, Jindal's communications director.
But Gladstone Jones, the lead attorney for the Southeast Louisiana Flood Protection Authority-East, said he's confident the Supreme Court will agree that the law is unconstitutional.
"This entire effort to derail this lawsuit and making oil companies fix what they broke is driven by the governor's frivolous presidential aspirations to please his potential donors - the oil industry," Jones said. He added that he's "confident" the law "will continue to be found to be inapplicable and an unconstitutional overreach."
Clark, in her December judgement, found that Act 544 didn't apply to the levee authority because it "is an independent political subdivision and not a state agency." Thus, the language used in the law didn't apply to it.
She also ruled that the law violates the state Constitution's "public trust doctrine" contained in Article 9, Section 1, by blocking levee authority's ability to "redress issues with coastal restoration particularly insofar as those are related to hurricane protections."
That section of the Constitution says: "The natural resources of the state, including air and water, and the healthful, scenic, historic, and esthetic quality of the environment shall be protected, conserved, and replenished insofar as possible and consistent with the health, safety, and welfare of the people. The legislature shall enact laws to implement this policy."
Clark also found the law violated the Constitution's restrictions on the Legislature's handling of "special laws" dealing with local issues, because its language was not properly advertised in advance of the legislative session.
The levee authority filed suit in 2013 to force the energy companies to repair wetlands damage or to pay for restoration projects or additional storm surge protection. Several companies have been removed from the suit, but there are still 86 corporate defendants.
The suit is now being fought in federal court in New Orleans, after the companies successfully argued that the issues it addresses are federal in nature.
U.S. District Judge Nannette Jolivette Brown has heard arguments on whether to dismiss the suit, including whether Act 544 applies, but has not issued a ruling.
In a filing in federal court, attorneys representing the levee authority notified Brown of the governor's office's appeal to the state Supreme Court, and pointed out that state Attorney General Buddy Caldwell had raised his own questions about the law's constitutionality.
In a memorandum Caldwell filed with Clark, he pointed out that the standing practice of the state Supreme Court was to avoid constitutional challenges of state laws when a case can be decided on non-constititutional grounds. But he reserved the right to bring up his constitutional concerns, which were similar to those outlined by Clark, if it became necessary.
In that filing Caldwell said "... the retroactive application of Act 544, at a minimum, raises problematic constitutional separation of power issues and even clearer constitutional issues" under its public trust doctrine provisions.
© 2015 NOLA.com. All rights reserved.
Judge: Oil, gas firms not liable for La. coastal erosion
Associated Press February 15,2015 shreveporttimes.com
NEW ORLEANS — A federal judge has dismissed a New Orleans-area levee authority’s lawsuit charging oil and gas companies with destroying Louisiana’s coastal wetlands.
The lawsuit was filed by the Southeast Louisiana Flood Protection Authority- East in 2013 against nearly 100 oil and gas companies over damage they allegedly caused to Louisiana’s wetlands. The authority is one of two regional boards set up by the state after Hurricane Katrina to better protect the New Orleans area from flooding. The companies had faced billions of dollars in damages if the suit had been successful. The suit argued that the defendant oil companies did not fulfill their obligations to clean up the damage caused by drilling and related activity on Louisiana’s coast. In dismissing the lawsuit Friday, U.S. District Judge Nanette Jolivette Brown said federal and state laws did not provide any avenue by which the levee authority could successfully bring suit.
Brown rejected arguments by the authority that it had a claim against the oil and gas companies, ruling that the levees were too far from, or too indirectly affected by, the alleged damage. She also said the authority had no right to sue under permits issued by the state or the U.S. Army Corps of Engineers that allowed the companies’ energy exploration or transportation activities in the first place.
Greg Beuerman, a spokesman for Shell, Chevron and BP, which were all defendants in the suit, praised the decision.
“We are gratified by this ruling to dismiss this ill-conceived, unwise and divisive litigation, which we have contended all along was nothing more than an attempt to subvert the existing legal and regulatory processes,” Beuerman said in a statement.
An attorney said the decision would be appealed with the Flood Protection Authority’s permission.
“We’re disappointed with the ruling, but I think it was always clear this wouldn’t be resolved in the district court,” said Jim Swanson, one of the lead attorneys on the case. “I don’t think this is the final word on this subject.”
In drilling for oil in Louisiana’s marshes and swamps, oil companies dug about 10,000 miles of canals and sucked up enormous amounts of oil and gas. Those actions and others led to tremendous land loss, according to scientists. Louisiana has lost about 2,000 square miles of coastal land and drilling has been blamed for about 36 percent of that loss.
To thwart the suit, legislators and Gov. Bobby Jindal passed a law this year that prohibits state agencies and local governments from pursuing suits such as the one filed by the flood board.
Jindal spokeswoman Shannon Bates Dirmann also praised the ruling.
“We appreciate the judge’s ruling and are pleased that this frivolous lawsuit has come to an end,” said Bates. “We’ve maintained that this was not a claim SLPFA had the authority to bring, and we are glad the court agreed.”
“We’ve maintained that this was not a claim SLPFA had the authority to bring, and we are glad the court agreed.”
Having been on both sides of legal problems (land owners and oil companies) in south Louisiana for 60 years, there are many geological conditions that have caused the loss of land and marsh. This loss of land started 10,000 years ago. Google up Alabama Sunken forest and you can see the problem. Also Man has caused a lot of the problems.
The industry participated in the scientific study that assigned approximately 30% of the wet land loss to O&G related activity. Defenders of the industry have used the same number and have not taken exception to it in the articles and reports that I have read and posted. The lawsuit has been quite specific that it does not blame the entirety of the problem on the industry. And it seeks to recover as monetary damages only what would be calculated to be owed on the impacts that are clearly industry related. Yes, there are multiple causes for coastal erosion and wet land loss however the suit does not seek to blame the industry for them all nor to recover damages related to the majority of those causes (70%).
Skip, I agree with you 100%, but the point I was making is the average persons are saying look at the evil oil companies. The same goes for climate change.
A majority of Louisiana citizens polled, if memory serves something like 81%, favor allowing the suit to go to court. I don't think that the majority of them think the industry is "evil". I think the majority would be generally supportive of the industry but would find it irrational to not assign some reasonable amount of fault for coastal erosion and wetland loss to industry activities. In south Louisiana so many have witnessed it first hand.
Skip I moved to south Louisiana in 1955 and have done work in the on shore and off shore work since then. I have seen the oak trees dying along the bayou since that time. I agree that the majority of the people in the oil producing state do not think the oil companies are evil, but you get to some of the other states and look out (keystone pipeline). If this had gone to court, many dollars would have been spent (legal fees) and would probably have been settled out of court. That is still not going to save the coast. The water has been coming up for 10,000 to 15,000 years, long before the people and oil companies. I am not taking sides, I have been witness for oil companies, land owner and royalty owners etc. We got a problem//
courtney, it is my hope that on appeal the case will make it to court. If it does my expectation would then be for an out of court settlement as opposed to drawn out litigation which would generate large legal fees with no practical impact on the problem. You may be right that nothing can save the coast if long term climate models are accurate. However that unknown outcome shouldn't preclude us from attempting to mitigate the existing damage and rebuild coastal zones where practical.
AMEN/// The last three to four years I have spent most of my time restoration of the coast.