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 courtney oliver on
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Skip yes there is a suit, but I am unable to discuss at this time. In south La. it does not take much subsidence to lose land. There is other problems such as faulting.
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Permalink Reply by Skip Peel - Mineral Consultant on
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I understand. Weigh in as you can. I think this suit will be a marathon, not a sprint.
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Permalink Reply by courtney oliver on
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A lot of years.
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Permalink Reply by dbob on
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http://www.twdb.state.tx.us/publications/reports/numbered_reports/d...
This is an old Texas report, and the abstract mentions subsidence in the range of 0.5 feet to 10+ feet in the Spindletop area....
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Permalink Reply by courtney oliver on
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I have read this report and some newer ones. There are some concerning La. I have my own. Thanks dbob
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Permalink Reply by dbob on
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Thanks Courtney - as its in the public domain, it gives folks here something to look at. Also has a reference to subsidence from 10,000 depth oil and gas.
If you have anything else in the public domain, I would appreciate a link.
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Permalink Reply by Dion Warr, CPL on
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Courtney:
OK, but quantitatively, how much subsidence can one expect from this mechanism? 5%? 10%? How much loss is as a result of this type of subsidence, versus, say, complications from other factors, as you allude to, via faulting and compactional mechanisms which have resulted in losses in barrier island protections in the east? These seem to result (specifically, from fault throw and Holocene compactional subsidence) in losses of 2 - 4 feet in the area during the oil and gas exploration era, locally higher in some places. Losses in the lower Mississippi delta are in the 4'-14'+ range over the last century (obviously partially offset from landbuilding and deposition in the delta).
I am sure that you have access to this study, but for purposes of general discussion:
From "Faulting, Subsidence, and Land Loss in Coastal Louisiana" (Gagliano, Coastal, 1999), "Ramsey and Moslow (1987) attribute 80% of the observed relative sea level rise in coastal Louisiana to "compactional subsidence." Del Britsch (personal communication) has compiled data from innumerable borings in the coastal zone and from analysis of this data has concluded that subsidence rates are directly related to thickness of the Holocene deposits, and compaction thereof. Kuecher (1994) has studied relationships between land loss, thickness and characteristics of Holocene sediment, subsidence rates and faulting and has also concluded that compaction is a primary cause of subsidence. Most researchers have recognized that fault induced subsidence is a contributing factor, but the consensus has been that the majority of relative sea level rise can be attributed to compactional subsidence." (lead cited)
Once the barrier islands go, storms can push saltwater well into the brackish and freshwater systems, degrading the marsh at much faster rates. See coastal marsh losses post-Isle Derniere degradation and Timbalier Bay, and accelerated losses in the subject area for SLFPA-E connected to degradation in the Chandeleurs. Without infusion of landbuilding material (largely silts and sands), perimeter barriers / barrier island restoration and freshwater to offset a climbing salinity gradient, large single events can result in immense losses.
As to the general discussion:
IMHO, the canals (any or all of them, O&G generated or not) only serve to exacerbate and accelerate the problem, but are not the root cause - the cutoff of the coastal lands from estuarine flow is. The dawn of coastal oil and gas exploration and production in Louisiana and the rampup of large flood control projects in the Lower Mississippi Basin culminating in the projects undertaken under the Flood Control Acts (1928 and after) are nearly coincident. One cannot be taken in context without the other, except that the only difference for the purposes of SLFPA-E is that one cannot sue the government directly, or through the USACE under federal law.
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Permalink Reply by courtney oliver on
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You are right, there are several factors that are causing the problem of land lose. After having been in law suits and studying this problem in the marsh of South Louisiana (13 years), I have seen young faults that come to the surface, porosities in producing formation (12,000-13,000') that go from 32 percent to 12 percent in 25 years, roads that stop the normal flow of water and canals like the Wax Lake outlet in St. Mary Parish.
In the marsh of Terrebonne, Lafourche and Plaquemines Parishes as little as a few inches can change a living marsh to a marsh gone. You do not need feet.
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Permalink Reply by Joe Aldridge on -
CO,
Since you are a geologist that deals in this area could you please explain "Growth Faulting" to the group and how it affects subsidence?
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Permalink Reply by courtney oliver on
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Growth faults are normal faults which move contemporaneously with deposition thus allowing the deposition of very thick sedimentary deposits on the down thrown side. The down side is moving while the up side is not. A common way to understand growth faulting is to observe a snow avalanche or a mud slide
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Permalink Reply by Skip Peel - Mineral Consultant on
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Politics challenges lawsuit - The Times (Shreveport) Op Ed Page
John Maginnis - July 31,2013
Louisiana politicians, beware, this is what happens when you establish in the constitution an independent and apolitical board of experts empowered to take legal action to protect lives and property within its jurisdiction, namely, the South Louisiana Flood Protection Authority-East.
The little levee board that could rattled the crystal in boardrooms around the globe last week by filing a mammoth, historic lawsuit against 97 oil companies. It demands they repair the damage done from decades of digging, dredging and drilling in the coastal marshes that form the New Orleans region’s first line of defense against hurricanes.
The suit came as a surprise to the industry that, for all its risk analysis, had to know it was coming. Nonetheless, the flood protection board came under immediate criticism for having worked sub rosa with its lawyers for months without public discussion or collaboration with the Jindal administration, legislators or the west bank flood authority.
The response of Gov. Bobby Jindal and the oil industry confirmed to authority board members the wisdom of getting to the courthouse before the combined political forces could strike against them.
This legal action could be the last tree to fall from Hurricane Katrina. The constitutional amendment of 2006 creating the authority would not have been possible without the devastation of the levee breaks from the 2005 storm. Only with insistent public support behind her was former Gov. Kathleen Blanco able to overcome legislative opponents who wanted to keep in place the local levee board members they had helped to appoint. That post-storm special legislative session vested the east and west authorities with extraordinary powers, including to choose and compensate lawyers, while protecting board members from being summarily removed by the governor.
Changing the rules of the game to thwart the lawsuit in progress would be tricky. Jindal can make three appointments to the authority this year and three next, so it will take almost a year for him to replace a majority of the ninemember board, which voted unanimously to file suit. But restocking the authority with reliable votes won’t be so easy, as the law requires that nominations come from the deans of engineering colleges, professional societies and the Public Affairs Research Council.
The governor and oil lobbyists could team up to get the Legislature to limit the companies’ exposure. But one bitter lesson the companies have learned in legislative battles over so-called legacy lawsuits for onshore oilfield damages is that the state Supreme Court has not allowed new laws to apply retroactively to cases already filed.
Gov. Jindal says there is a “better approach” than suing, a combination of holding the Corps of Engineers accountable for its river management, making BP fully clean up and pay for the 2010 Gulf oil spill and greater federal revenue sharing from offshore production.
The Corps of Engineers has put up $14 billion to repair and strengthen the levee system in the New Orleans region. How much should the oil companies pay to restore the eviscerated coastal marshes? That’s the question the lawsuit poses, to be answered in a court of law or settled in negotiations. By exercising its constitutional power, the South Louisiana Flood Protection Authority-East has taken its seat at the table.
Write John Maginnis in care of Political Review, P.O. Box 6, Baton Rouge LA 70821.
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Permalink Reply by Skip Peel - Mineral Consultant on
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Lawsuit could hurt oil, gas industry - The Times (Shreveport) Op Ed Page - July 31, 2013
Don Briggs, Guest Columnist
Last week, the Southeast Louisiana Flood Protection Authority- East filed suit against 97 oil and gas companies seeking payment from them alleging that they are putting the New Orleans area at a greater risk of flooding by contributing to coastal erosion. This suit, like the 300 legacy lawsuits with over 1,500 companies that have been going on for 10 years now against oil and gas, are simply extortion via the legal system. Governor Jindal is to be commended for calling these lawsuits what they really are. He said, “This is nothing but a windfall for a handful of trial lawyers. It boils down to trial lawyers who see dollar signs in their future and who are taking advantage of people who want to restore Louisiana’s coast. These trial lawyers are taking this action at the expense of our coast and thousands of hardworking Louisianians who help fuel America by working in the energy industry.” This is a real opportunity for Governor Jindal to heed the calls he has been receiving for the past six years to bring transformative tort reform and an abrupt end to the legacy lawsuit abuse that has been slowly destroying our industry since 2003, and now this absurd suit filed by the flood board. We do not need one-liners, talking points and sound bites. We need substantive tort reform for the state of Louisiana.
Let us not be deceived. These are the same trial lawyers that have been filing legacy lawsuits for years. This suit, filed by the flood board, is more of the same. It is a frivolous money grab on one of the largest employing industries in the state. As a reminder, while the rest of the country has been experiencing the most dramatic economic recession since the Great Depression, the oil and gas industry has been providing Louisiana with good paying jobs and a stable economy.
While the trial lawyers face no penalty for filing frivolous lawsuits that seek to extort money and destroy an industry, oil and gas companies are forced to spend millions upon millions of dollars defending themselves from court-sanctioned extortion. And while there is a frivolous- lawsuit statute that is supposed to protect citizens from these very types of suits, it is rarely pursued, and even less often is a judgment rendered against any attorney. It is time for real tort reform. You file junk lawsuits and you get penalized. This is not just an oiland- gas issue, but an issue that impacts every business, municipality and individual in the state. Texas made tort reform happen. Why not Louisiana?
If we are to be a competitive state that seeks to retain business as well as bring new commerce to our state, then the legal climate must change. The oil-and-gas industry is experiencing the lowest drilling activity ever in south Louisiana because of one simple reason: Exploration companies are running away from this state due to the litigious environment and are choosing to explore and produce elsewhere, bringing their jobs and paying their taxes to communities outside of Louisiana.
If Louisiana wants to be the state that we know we can be and be a champion of small business with entrepreneurial spirit, we must tackle the change that is so badly needed. This change will only occur once the attitude within our Executive Branch and Legislative Branch of Louisiana realize the severity of the situation.
Don Briggs is president of the Louisiana Oil and Gas Association.
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