Legal battle ongoing over wetlands damages

Plans announced by Gov. John Bel Edwards to sue oil companies for decades of damage to Louisiana’s coast have drawn expected local fire from industry supporters both in government and the private sector.

His offer for coastal parishes to file suits on their own – rather than allow the state to act on their behalf – has drawn an even more resounding objections.

But attorneys with experience litigating against energy giants counter that rejection of the local option leaves local parishes without a guaranteed seat at the table for whatever negotiations might emerge from such a move, bypassing potential control of millions that might result and ceding it to the state.

Terrebonne Parish President Gordon Dove isn’t buying it.

“This is nothing but a money grab by trial lawyers,” Dove said in an interview last week. “This suit would be based on violations of coastal permit violations, and people who have looked at this said there are very few of these in Terrebonne Parish.”

There are legal hurdles to be jumped in such a case, attorneys acknowledge, especially since Louisiana law requires that administrative remedies be exhausted before judicial remedies – such as a lawsuit – can work.

Dove notes that if a suit by the parish is not successful, the parish could be ordered to pay legal fees for the defendants. Suing an already struggling industry that is responsible for hundreds of thousands of jobs in Terrebonne and surrounding parishes, he said, does not make sense.

Local attorneys willing to represent Terrebonne have privately lamented Dove’s demurrers, suggesting that he should not be parroting the oil and gas industry’s core defense arguments.

The Louisiana Department of Natural Resources sent letters to coastal parishes advising them that unless they filed their own suits in 30 days, the state would do so on their behalf. In either event, suits would be brought in the judicial districts in which each parish resides, which in Terrebonne’s case would be the 32nd Judicial District.

The suits would be brought under provisions of the Local and State Coastal Restoration Act of 1978, which says DNR has the authority to issue fines and penalties against companies that have violated their coastal zone permits. It is not necessary under the law, Dove said, for litigation to be brought for that to happen.

The law says that half of any dollars awarded in such suits would go into the state’s Coastal Trust fund. One quarter would go to local government mitigation banks, and another quarter would go into the Wetlands Conservation and Restoration Fund. The mitigation money – 25 percent of any verdict or settlement in a case involving Terrebonne – has no guarantee of going to Terrebonne if it does not file its own suit. This is a distinction in the law that attorneys maintain the question of direct parish involvement in a suit hinges upon.

Current action in the courts includes an appeal of a decision in Jefferson Parish that its own suit cannot move forward because administrative remedies such as permit violation claims against companies have not been made. Jefferson says there are extraordinary circumstances in its litigation that bypass the legal rule, but that is a question the Louisiana Supreme Court will have to sort out. DNR would have to pursue its remedies if the Supreme Court decided against Jefferson Parish, with all suits on hold. If, as some attorneys maintain, suits proceeded – either because administrative remedies were ultimately not adequate, or the Supreme Court actually ruled in favor of Jefferson – then waiting that long could leave Terrebonne and other coastal parishes out in the cold, unable to take part in any future settlement as a direct actor.

As of this writing, Gordon Dove has not sought the advice or guidance of the Parish Council, and there have been no outward indications that Parish Council members wish to discuss the matter or challenge Dove’s assertion that not filing suit would be opposed to the parish’s interests.

Local attorneys who would likely be part of the talent pool if the parish did file its own suit have chosen for now to remain publicly silent. Some have trouble comprehending why the administration would allow the governor to proceed with his own attorneys from Baton Rouge, New Orleans and other places in the state. Local lawyers, they maintain, would make for a much better working group that would have Terrebonne’s interests at heart specifically.

Reluctance to express their views publicly is understandable, considering the tremendous weight and allies the oil and gas industry has locally.

The Houma-Terrebonne Chamber of Commerce went on record two years ago opposing any potential litigation by local government against oil companies.

Last week the South Central Industrial Association, an organization of 250 firms with over 200,000 employees in the tri-parish region, officially came out in support of Dove’s refusal to fight the oil companies.

“We serve as the economic engine for the bayou region, which is the hub for the offshore oil, gas and marine industries in Louisiana, while being interactive with the industry throughout the nation,” reads a statement released by SCIA president Jane Arnette. “As business leaders in our region, we have always recognized coastal restoration and protection are urgently needed to protect our businesses and thriving economy. We also recognize that the oil companies who play a major role in the economic base of this region support and contribute to the funding of the coast in the state of Louisiana.”

The state has a mechanism for coastal protection through the Coastal Resources Management Act, SCIA’s position maintains, affirming the region’s health depends on its support system for oil, gas and marine industries.

Citing record local unemployment and overall industry turmoil, SCIA says now is not the time the time for the state to take action against oil companies, urging the governor to reconsider his own position.

“Lawsuits are not the answer in determining the economic survival of this state,” Arnette said in the statement. “In fact, this should not be about lawyers, this should be about economic survival of the people of this state.”

Local attorneys question that logic. Terrebonne’s interests, they maintain, will be pursued by precisely the attorneys SCIA and other oil industry boosters hate most.

“Where do you think those lawyers’ loyalties will lie?” one attorney asked rhetorically. “With Terrebonne or the other parishes and the state that hired them? If and when there is a settlement, who will be lobbying for Terrebonne to get its fair share? By not having its own representation, Terrebonne has ceded its responsibility and future to others that have an obvious conflict of interest.”

Whether a conflict exists for Gordon Dove, whose many businesses are largely tied to the oil and gas industry, has not yet been publicly broached. But there are no indications that he or Lafourche Parish President Jimmy Cantrelle, who also opposes parish litigation, have ties to any of the companies that would be subject to legal action, likely make the question of conflict arising from state ethics laws moot.

Despite strong opposition from the oil and gas industry – and criticism from Attorney General Jeff Landry – Gov. Edwards appears to have dug in his heels, with an underlying message to parishes that if they wish to board the train they must hurry because it is leaving the station.

That Louisiana’s powerful oil and gas industry is fighting the potential of such suits is clear as well. The Louisiana Oil and Gas Association and Louisiana Mid-Continent Oil and Gas Association issued a joint statement on what they called the governor’s “latest attack” on energy.

“The governor’s comments today are an obvious attempt to deflect from the very serious conflict of interest issues that have been raised by the media in recent weeks,” the joint statement reads. “The reality is the administration already has every tool it needs to protect the coast. The State and Local Coastal Resources Management Act provides for an exhaustive set of fines and penalties that can be levied by the Department of Natural Resources to enforce the terms of state issued permits. But issuing fines and penalties for alleged violations, as the department is required to do by state law, doesn’t produce billions in legal fees.” •