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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Coastal Parishes Oppose Other Lawsuit Bill
Something has happened that has caused a big slow down in Louisiana to the new leasing projects. Don Briggs may have been right?
High costs, flow problems in the TMS, too many dry holes in the Wilcox, and a soft market for NG.
That will be $75.
NEXT!
Now back to the discussion topic.
ADLEY TO DEFEND CONTRACT NULLIFICATION BILL
By Mike Hasten mhasten@gannett.com April 15, 2014 shreveporttimes.com
BATON ROUGE — Sen. Robert Adley, R-Benton, says he is prepared to shoot down any attempts to weaken his bill to undo a lawsuit against 97 oil companies for damaging the coast around New Orleans.
“I hear there will be amendments” when the bill is expected to be debated Tuesday, he said. “I don’t have any.”
The proposed amendments are to take out the retroactivity clause in SB553 so the bill does not impact the Southeast Louisiana Flood Protection Authority- East, but would apply to any future similar lawsuits.
Adley said Monday he is using information gathered from a Gannett news story that quoted a Louisiana Supreme Court ruling that approved legislation which retroactively nullified the City of New Orleans’ lawsuit against gun manufacturers. “I went through this case you found and every ruling, U.S. and state, says there is no protection from retroactivity for political subdivisions created by the state,” Adley said in an interview. He has point-by-point arguments prepared to fight off any amendments.
The court in 2001 ruled constitutional legislation approved while the lawsuit was active that retroactively said local governmental bodies could not sue gun manufacturers.
The ruling also states that political subdivisions created by the state did not enjoy the same contract protection granted to individuals. That action nullified the city’s contract and the court said “the constitutional prohibitions found in the Contract Clauses of the Federal and State Constitutions do not protect political subdivisions of the state from the passage of retroactive laws impairing their rights with respect to transactions already passed because these protections are for the benefit of private citizens.”
and counterpoint...
Quin Hillyer got quite a few things wrong in his column about the several lawsuits seeking to get the oil and gas industry to repair the damage it caused to Louisiana’s coast.
Let’s start with his comment that neither the Southeast Louisiana Flood Protection Authority — East nor Plaquemines and Jefferson parishes have the authority to sue. A court has ruled the flood authority’s suit can go forward, and the law explicitly gives the parishes authority to enforce the coastal zone regulations. It’s the very fact that the parishes and the flood authority can legally sue that explains why the governor and the industry are so eager to have the legislature kill the lawsuits — retroactively.
Second, no one associated with the SLFPAE lawsuit has ever said the oil and gas industry is the only cause of land loss. There are multiple causes. One of the causes — a major one — is the industry.
He also seems confused by the wide range of estimates of how much land-loss industry did cause. The reason for the range is that the industry’s impact varies from place to place; in some areas, it’s minor. In others, it’s enormous.
Third, he says it is “virtually impossible to apportion `blame’ to the companies.” Yet courts take on complex cases every day and apportion liability based on evidence. Tobacco is the most relevant example.
Are the levees a factor? Yes. But society as a whole decided to build the levees, and the government built them. Baton Rouge and New Orleans would not exist without them, nor would the petrochemical industry between them, nor would the port system of south Louisiana. Any damage levees caused were an unintended consequence of those benefits.
Oil production was different. Companies sought permission to drill and in return for the opportunity to make private profits, and because everyone knew that one consequence of their operations would be damage to the coast, permits that they agreed to required remediation, and state laws since 1980 required areas to be “restored as near as practicable to their original condition” when production ceased.
The purpose of the lawsuits is to get the companies to honor their contractual obligations under their permits and compel them to obey state law. There is nothing complicated about that.
Finally, Mr. Hillyer argues since the state did not enforce the law, the industry should be let off the hook. That’s like saying if a police officer on patrol was asleep, no one who commits a crime can ever be charged in court. The parishes and flood authority simply want the law enforced and are asking the courts to do so.
In sum, Mr. Hillyer has laid out all the points the oil companies will use to defend themselves — but in doing so he has actually made the point that this is something for the courts to decide. Isn’t that why we have a court system?
The idea that the Legislature should retroactively kill a lawsuit that is already moving through the courts violates fundamental principles of American society, and effectively gives immunity to an industry which by its own admission caused “the overwhelming majority” of land loss in at least part of the state.
If those who did the damage don’t pay to repair it, who will? Either it won’t get fixed or taxpayers will pick up the tab — as they have already done to the tune of well over $100 million for restoration projects that oil companies themselves had agreed in their permits to fix “within 90 days.”
John Barry
president, Restore Louisiana Now
former vice president, Southeast Louisiana Flood Protection Authority — East
New Orleans
http://www.theneworleansadvocate.com/opinion/8904711-171/letter-ant...
Good article, cs. Mr. Barry makes a good counterpoint. Although we've got them out of order, I thought it might be constructive to post the opinion piece by Mr. Hillyer also.
Quin Hillyer April 15, 2014
Some well-motivated people working for a good cause have filed a lawsuit almost absurd in its contentions, without authority to file such a suit, while hurting, in both political and practical terms, the very cause they intend to advance.
These lawsuits should sink into the swamp from which they came.
At issue is the dreadful loss of coastal wetlands that has plagued Louisiana for at least a century. The losses must be mitigated and, we all hope, eventually reversed. The lawsuits by the Southeast Louisiana Flood Protection Authority-East and at least two southern Louisiana parishes aim to force as many as 97 energy-related companies to rebuild the wetlands and pay for past damages.
The ill-considered suits have produced, in reaction, the strange-bedfellows pairing of Gov. Bobby Jindal and U.S. Sen. Mary Landrieu in opposition. Jindal said on Thursday that the suit is an illegitimate “overreach of authority,” while Landrieu said the suits “will not save the coast of Louisiana” but could detract from other efforts to do so, including securing federal funding.
Jindal is right on the authority, Landrieu is right on the politics — and the plaintiffs, while trying to solve a legitimate problem, are probably wrong on the law.
First, it is doubtful that either the Flood Protection Authority or the parishes have legal standing to sue. None of those bodies has responsibility for permitting or reviewing the pipelines and canals created by the energy companies, for which the plaintiffs want to recoup damage payments, or for penalizing transgressions related thereto. Those responsibilities belong to the state Department of Natural Resources and/or the U.S. Army Corps of Engineers.
Second, it is virtually impossible to apportion “blame” to the companies. It is well established that the pipelines and canals have exacerbated the problem — but there are numerous other causes, too, ranging from dredging to hurricanes to the building of the Intracoastal Canal to deforestation of cypress swamps to the ravages of nutria and agricultural runoff. And, probably greatest of all, to the construction of a vast system of levees that, while protecting populations against floods, also cut off the resupply of soil that otherwise would feed and maintain the wetlands.
Yes, those levees: the ones maintained by the Flood Protection Authority and other levee boards. Maybe they should sue themselves.
As it is, the biggest public advocates for the suits, in a massive public relations campaign whose funding sources are unclear, can’t get their own stories straight about what percentage of the damage should be apportioned to the energy firms. In one advertisement, the noisy Lt. Gen. Russell Honoré claims the figure is “between 36 and 88 percent.” In another, Honoré pegs it at “35 to 80 percent,” and in a January forum, another advocate said it was within the absurdly broad range of 10 to 70 percent.
A court of law assessing damages needs numbers far more specific than that.
Then there’s the little problem of whether the oil companies are actually liable for whatever percentage of the damage they caused. They operated according to permits. The state knew what they were doing. The state chose to allow the projects, knowing they would bring jobs and vast riches to Louisiana. In short, the pipelines themselves were legal, and the bodies (DNR and the Corps) charged with policing them never raised a peep. Since when does American law allow for retroactively making something illegal or legally actionable that was approved by government in the first place?
Finally, for now, practical and political considerations make these suits counterproductive. The state has made great strides, with full and helpful cooperation from the energy industry, in creating a “Master Plan for a Sustainable Coast.” These suits create an adversarial relationship with the industry just when the companies are acting constructively. Also, as Landrieu notes, the suits make it harder for her to convince Congress to do its part when congressmen from other states can punt their responsibilities to courts and the oil giants.
This topic begs much further scrutiny. For now, know this: Sometimes, if one desires just solutions, the courts of law can turn into giant sinkholes, eroding and then destroying the soil of common ground.
New Orleans native Quin Hillyer is a contributing editor for National Review. You can follow him on Twitter, @QuinHillyer. His email address is Qhillyer@theadvocate.com.
Green Army Absent from Capitol Battle April 21, 2014 By John Maginnis
Steadily and without much legislative resistance, nails are being driven into the coffin of the coastal damages lawsuit against major oil companies brought by what is supposed to be an independent regional flood protection authority. The historic lawsuit will soon be history if two bills passed by the Senate and another close behind continue to roll over the opposition as they move through the legislative process.
It was not supposed to be this easy for Gov. Bobby Jindal and the oil companies to have their way with the Southeast Louisiana Flood Protection Authority-East. The leading champions of the legal action, author and former board vice chairman John Barry and retired general and Katrina hero Russel Honore, had called for a citizen “green army” to rise up and speak out for environmental justice and against legislation that would scuttle the lawsuit. But that army has yet to show up, and half their battle is lost already.
Oh, there has been plenty of green spread about on both sides of the issue, from lobbyists for the oil companies and the broader business community to the contract lobbyists hired by the law firms that are representing SLFPA-E and two coastal parishes that have filed separate suits. Yet, most lawmakers shrug when asked about how much citizen contact they have received.
The handful of environmental volunteers who work at every legislative session say that ordinary citizens who support the cause also have lives and jobs that keep them from spending hours at the Capitol waiting for bills to be heard. Of course, there are more efficient ways for a movement’s voice to be heard, such as emails and phone calls to legislators’ district offices or, most potent of all, simple handwritten letters, which are not ignored.
Communications like that could have made a difference on a key bill, SB 553 by Sen. Robert Adley, R-Benton, that would separate the flood protection board from its lawyers by retroactively voiding the contingency fee contract between the two. The Senate passed the bill on a 23-15 vote, but it was closer than that. An amendment to make the bill prospective only, thereby not affecting the lawsuit, failed only 17-20. Had enough constituent pressure been applied, a few senators might have switched or walked in order for the amendment to pass. That would not have stopped the multi-pronged offensive by the governor and the companies, but it might have turned the tide. It could turn yet, depending on what happens when Adley’s bills go before the House.
Beyond the merits of the lawsuit is the larger question of should Louisiana’s policy toward oil exploration and production in the coastal zone, under state permits, be directed by a single levee board of appointees, some of whom don’t live here. The flood protection authority was established to be independent of political influence, but, because its powers are not set in the constitution, it is vulnerable to the will of the Legislature, all the more so when voters are silent.
That is not the case, however, with some other governmental lawsuits filed against oil companies, by the Jefferson and Plaquemines parish councils. Their legal actions also were targeted by bills in this session, but officials from 16 parishes on or near the coast signed a letter telling legislative leaders to back off, according to Jefferson Parish President John Young, who leads the group Parishes Against Coastal Erosion. “When you come in and tell local officials what you can and can’t do to protect your citizens, that’s when you have a real problem,” said Young. “They have kicked a sleeping dog here.” Adley amended his SB 553 to not apply to the parishes.
The parishes’ suits, dealing with alleged violations of individual drilling permits, are not as sweepingly ambitious as the one brought by SLFPA-E. But there are 28 of them, and at least two other parish councils, in Cameron and St. Bernard, are considering filing more. As with the big lawsuit, they don’t address all the responsible parties for coastal erosion, particularly the Corps of Engineers. Brought by elected representatives though, the parishes’ suits may not need a green army to protect them at the Legislature so that they can have their day in court.
Shreveport Times Op-Ed April 24, 2014
LET EVIDENCE, NOT POLITICS DECIDE LAWSUIT
There’s a lot of misinformation that has been spread about the lawsuit which the Southeast Louisiana Flood Protection Authority East filed against 97 oil, gas, and pipeline companies to make them restore the part of the coast they damaged. Here’s the truth: Far from being radical, the lawsuit represents the most conservative values in America. It asks the industry to do what parents are supposed to teach their kids: keep your word, obey the law, and take responsibility for your actions.
The industry has done none of those things.
No knowledgeable person questions the damage the industry caused. Oil and gas companies dredged roughly 10,000 miles of canals through coastal lands, cutting them apart. Industry scientists participated in a US Geological Survey study which concluded that industry operations caused 36 percent of land loss in southeast Louisiana.
What’s the industry’s defense? First, it claims it operated legally at the time. That’s not true. As far back as 1933 state regulations prohibited the industry from damaging the coast, and decades of internal industry documents prove the industry knew it was not complying. Second, industry lobbyists say jobs will disappear if the suit goes forward. Don Briggs, head of Louisiana Oil and Gas Association, has said this for years — but under oath he confessed he had no evidence to support his claim. Plus, coastal restoration will create jobs.
The industry does want coastal damage repaired because it will protect industry infrastructure from storm surge. But it wants taxpayers to pay for it. Our government is going along.
Why are taxpayers paying for work that oil and gas companies are legally obligated and voluntarily agreed to perform? There is oneanswer: because for decades the industry has used its political muscle to block enforcement of the law. Now, when the flood authority seeks to make companies comply with the law and honor their contractual obligations, industry lobbyists demandthe legislature rewrite laws to kill lawsuits that have already been filed. They believe the industry is above the law.
I believe every citizen of this state should tell his or her representative, let evidence — not influence —decide this case. Let the courts decide. For once, let’s keep the politicians out of it.
John Barry is a former member of the Southeast Louisiana Flood Protection Authority East and president of Restore Louisiana Now.
Thanks for placing Mr. Barry's piece. Always good to have some refreshing opinions in addition to the shilling and more shilling disguised as "pontificate & educate."
For too long it has been about privatizing the profits and socializing the losses and damages. Matters not, both political parties have their cronies to enrich. Let this cost be incurred by those who did the damage. Let the blowhards take their marbles and leave. It will not happen.
To a great extent, the public benefited for many years from oil and gas sold them below what it should have brought. So spending tax dollars on remediation of the Louisiana marshlands would be an appropriate expenditure.
WETLANDS LAWSUIT A FOOTBALL IN STATE’S LEGISLATIVE, POLITICAL GAME
By Kevin McGill Associated Press - Shreveport Times, April 28,2014
NEW ORLEANS — The state Senate’s recent passage of a bill that could scuttle a lawsuit over damage done to coastal wetlands by the oil and gas industry would also seem to scuttle any notion that the political winds in Baton Rouge that have historically favored the industry are shifting.
Still, “Big Oil” may not be completely rid of coastal protection lawsuits when the Legislature ends its current session.
Gov. Bobby Jindal and the oil industry won when the Senate voted 23-15 for Sen. Robert Adley’s bill that would prohibit Louisiana flood protection authorities from hiring outside lawyers without approval from the governor.
The law would apply retroactively and is aimed at a lawsuit filed against 97 oil, gas and pipeline companies last summer by the Southeast Louisiana Flood Protection Authority-East. The suit seeks to force the industry to fix damage attributed to oil and gas pipeline and drilling activity in delicate wetlands that serve as a natural hurricane buffer for New Orleans.
If the House falls into line behind Jindal as strongly as the Senate, the lawsuit could be over.
However, the proposed new law — and other legislation that Jindal is backing — would likely be challenged. “There are constitutional challenges to all of these bills on multiple fronts,” said Bessie Dasbach, one of the lawyers representing the flood authority, which operates in the New Orleans area. And similar lawsuits, filed by local governments, are pending.
Jindal’s efforts to stop the SLFPA-E lawsuit don’t end with a single bill.
Current law limits Jindal’s power to replace flood board members, but the governor has managed so far to replace two members of the ninemember board and is on the verge of replacing a third whose term has expired.
Adley, a Republican from Benton, is now pushing a bill that would give the governor more power to affect the board’s membership. The proposal has been much-amended amid criticism that it frays insulation the board is supposed to have from political influence.
One recent version of the bill would have allowed the governor to remove an authority member for a violation of “state law or public policy.”
“The governor would effectively serve as the prosecutor, judge and jury,” according to an analysis by the New Orleansbased watchdog group Bureau of Governmental Research. It noted that the bill provides no opportunity for a member targeted by the governor to put up a defense. Last week Adley removed the “public policy” language. But, as the bill awaits more Senate debate, some senators still question how the governor would unilaterally determine that a state law was broken. It’s worth noting that Adley has said the board broke the law when it hired outside counsel to pursue the lawsuit.
Legislative momentum appears to be on the side of Jindal, Adley and the oil industry. “I cannot explain why legislators are not listening to the voices of their constituents,” Dasbach said when asked last week about the success the bills have had so far in the Senate — despite a poll commissioned by lawsuit backers that indicates public support for the lawsuit. Litigation will continue no matter what the Legislature does. Aside from any constitutional challenges to the bills Adley is pushing, there is also the matter of coastal protection lawsuits — similar to the one filed by the Southeast Louisiana Flood Protection Authority-East — that have been filed by officials in Plaquemines and Jefferson parishes. There is proposed legislation that could affect those lawsuits as well.
However, Rep. Joel Robideaux, R-Lafayette, has delayed hearings on his bill that would outline a way for local and parish governments to handle environmental cleanup disputes without going to court. The Advocate newspaper reported that the delay came as some local government officials worried courts might use the procedures to support the oil and gas industry’s contention that local governments had no authority to file a lawsuit alleging noncompliance with a state issued permit.
New Silver Bullet Aimed at Levee Board Lawsuit |
A deal struck Wednesday night and presented as an amended bill in committee Thursday has become the new silver bullet meant to shoot down the Orleans levee board's massive lawsuit against 97 oil companies. Over the heated protests from supporters of the lawsuit, but without objection from the Senate Natural Resources Committee, a rewritten SB 469heads to the Senate floor with the backing of the governor, oil companies and some landowners. Sen. Robert Adley, R-Benton, who has two bills directed against the suit awaiting House committee action, offered his amendment to a bill by Sen. Bret Allain, R-Franklin. The new language would exclude the regional levee board from the governmental entities authorized to file claims in the coastal zone. But it would not affect separate lawsuits against oil companies filed by Jefferson and Plaquemines parishes. John Barry, former vice chairman of the Southeast Louisiana Flood Protection Authority-East, and its attorney Gladstone Jones, both protested the short notice for the hearing on the amended bill. "To do this in 12 hours is literally a disgrace," said Jones, who asked for a one-week delay so that New Orleans citizens would be able to weigh in. Senate Natural Resources Chairman Gerald Long, R-Natchitoches, noted that the bill still has a long way to go through the process with ample time for the opposition to be heard. Governor's aide Stafford Palmieri said the new bill would keep SLFPA-E in line with other state agencies. "This is about one levee board in the sandbox who doesn't want to play like everyone else," she said. |
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