Last Modified: Sunday, June 01, 2014 5:48 AM
The oil and gas industry won a major victory last week at the Louisiana legislative session, but apparently it’s not the end of the story. A court may decide the final outcome.
Lawmakers approved a bill aimed at killing a lawsuit filed against 97 oil, gas and pipeline companies, and Gov. Bobby Jindal is expected to sign it. The suit claims the exploration and drilling activities of those companies caused some 36 percent of the coastal erosion and the loss of protective wetlands along the Gulf of Mexico.
The Southeast Louisiana Flood Protection Authority-East in the New Orleans area filed the suit.
No one disputes the fact that Louisiana is losing its coastline. However, the problem is determining who is to blame.
Actually, if there had been proper state oversight and management of oil and gas activities, this suit would have never been necessary. Unfortunately, it didn’t happen.
That responsibility rests with the state Department of Natural Resources. Like so many state and federal agencies, DNR has always been too close to those it is supposed to regulate.
Consider the testimony of J. Blake Canfield, an attorney for DNR, when the flood authority lawsuit was heard in a House committee. Rep. Patrick Connick, R-Marrero, wanted to know why DNR hadn’t monitored the oil and gas companies to protect the state’s interests.
“We do not have any evidence that the permits have been violated,” Canfield said. Many of the canals blamed for salt water intrusion and the loss of wetlands were dug prior to 1980 when the Coastal Act went into effect, he said, and the state hasn’t looked that far back.
Individuals who have either sued or negotiated with oil and gas companies over property damages will tell you there have been permit violations since 1980.
Sens. Robert Adley, R-Benton, and Bret Allain, R-Franklin, are the two sponsors of the bill aimed at killing the flood authority lawsuit. They have insisted throughout the legislative debate that oil and gas companies complied with their permits in those years before 1980.
What tremendous hindsight those two fellows must have to make such a bold statement.
The reality is that DNR hasn’t done its job, and coastal erosion needs to be stopped and the land loss restored. And that is going to take billions of dollars.
The New Orleans flood authority believes the oil and gas industry needs to meet its responsibilities. It bases the industry’s 36 percent figure on some 37 studies that have been made on coastal erosion. Some of those studies were even done by the oil and gas industry.
Critics of the lawsuit are quick to point out that a greater percentage of the land losses are caused by levees built along the coast and by the rerouting of the Mississippi River. And that brings the U.S. Army Corps of Engineers into the picture, the architect of those two contributing factors.
OK, so why not sue the Corps of Engineers?
Garret Graves, the former chairman of the state’s Coastal Protection and Restoration Authority, talked about suing the corps in December of 2013. He said it was responsible for more land loss than the oil and gas companies.
When asked, Graves said the state didn’t want to disclose its legal strategy. However, a suit was never filed, and maybe there is a reason.
New Orleans homeowners sued the corps after Hurricane Katrina in 2005, but eventually learned it’s almost impossible to succeed. A federal judge ruled for them in 2009, but a federal appeals court panel overturned his decision, according to a 2012 report by CNN.
The panel said the government couldn’t be held responsible because of a provision known as discretionary function exception. DFE says the government can’t be sued for actions that an agency or government employee makes, or fails to make, if the function is discretionary.
Suits are still filed against the corps, but there are only some narrow openings in the law that might help them succeed.
Since suing the corps isn’t a likely option for the state, does that mean the oil and gas industry should also be exonerated of any blame for coastal erosion? Some critics of that flood authority lawsuit think it should be.
It has been estimated it will take $50 billion to stop coastal erosion and another $50 billion to repair damages that have already occurred.
Gov. Bobby Jindal and his legislative supporters insist they have the coastal situation well in hand. However, how many times have we heard that before only to see the state come up short?
The state should have taken the lead on holding those accountable who contributed to our coastal woes. It chose instead to side with an industry that caused part of the problem.
The Southeast Louisiana Flood Authority-East believed its suit was part of the financing solution. And it isn’t ready to throw in the towel.
“… This fight is not over,” said John Barry, a former flood authority board member and water resources expert. “We will see you in court. And we will see you at the next election…”
The governor and legislators who voted for the lawsuit-killing bill kept saying the suit was illegal, but they weren’t willing to see whether the courts agreed. Now, that appears to be exactly where the Legislature’s actions will be challenged. This is an issue begging for a legal remedy.
Jim Beam, the retired editor of the American Press, has covered people and politics for more than five decades. Contact him at 494-4025 or firstname.lastname@example.org.SNbS