Jefferson, Plaquemines consider filing lawsuits

Even as Republican Gov. Bobby Jindal’s administration launched an all-out assault this year against a state agency’s lawsuit accusing energy companies of destroying coastal wetlands, officials in the Republican strongholds of Jefferson and Plaquemines parishes were quietly preparing their own cases aimed at forcing the oil and gas industry to repair the damage it allegedly has done in those areas.

In coming weeks, both parishes’ councils could file their own suits centered around allegations that the industries have taken an enormous toll that can be measured in terms of land that has simply washed away, multiple sources familiar with the cases told The New Orleans Advocate.

The cases would be separate and more narrowly focused than the Southeast Louisiana Flood Protection Authority-East suit that set off a storm of criticism from Jindal and his aides when it was filed this summer, and there are early indications that the parishes’ suits would not face the same backlash from the Jindal administration, which sought to play up the differences between the cases on Friday.

Even so, the parish cases could complicate efforts to short-circuit the flood authority lawsuit, and they represent growing pressure to hold one of the state’s most powerful industries to account.

Council members from both parishes declined to discuss the specifics of their strategy Friday or say whether they indeed intend to go to court. But officials said the damage they’ve seen cannot be ignored and something must be done to protect coastal areas.

“I grew up fishing and hunting in Barataria and the Texaco canals,” said Jefferson Councilman Ricky Templet, who represents the southern coastal areas of the parish. “I have a camp down here in Lafitte. I’ve seen the erosion firsthand in these people’s communities. Something’s got to be done sooner or later.”

In broad strokes, cases brought by the parishes would likely be based on claims similar to those in the suit filed by the flood protection authority: that oil and gas companies have played a significant role in causing coastal erosion over the course of decades by dredging canals and constructing pipelines and wells in delicate coastal areas. Those projects allegedly allowed saltwater to intrude into the marshes, killing the plant life that prevented coastal lands from washing away.

About 1,900 square miles of Louisiana’s coast have washed away since the 1930s. While other factors played a role, oil and gas activity has been widely seen as a significant contributor to that erosion.

State and federal permits required the canals and pipelines to be maintained and damage repaired once work was completed, but those regulations have often been laxly enforced. Targeting companies that have not lived up to the terms of their permits and forcing them to restore the areas that were damaged or destroyed would be the main thrust of the parishes’ lawsuits.

“We’re not looking for monetary awards,” said Plaquemines Council Chairman Byron Marinovich, whose district is on the southern end of the parish. “We’re looking to get our coast back.”

Plaquemines and Jefferson are unlikely leaders of a move to force the oil and gas industry to pay for coastal damage. While the two parishes have been the sites of much of the coastal land loss in Southeast Louisiana, they both count the energy industry as a significant contributor to their economies.

Marinovich described the parish’s relationship to the oil and gas industry as “a deal with the devil to get revenue and jobs.” However, he said, with the parish experiencing rapid land loss, and facing the threat of storms like Hurricane Isaac, which swamped Plaquemines without being buffered by wetlands, something must be done.

“If we don’t, we’re not going to be here anymore,” he said.

With the vast profits energy companies have made in the area, Marinovich said, it is their duty to repair the damage they caused.

“They made millions of dollars through the years, billions actually,” he said. “I think they have a civic obligation to come in and do this thing and make us whole again,” he added.

Plaquemines has been considering ways to deal with its coastal problem for about a year, and it is still unclear exactly how it will proceed, Marinovich said.

Coastal Protection and Restoration Authority Chairman Garret Graves, a top Jindal aide, has led opposition to the flood protection authority’s lawsuit, but he took a much softer tone when asked about the parishes’ cases.

“Businesses should be operating in compliance with existing regulations,” he said in an email. “We have asked the Department of Natural Resources to review the lawsuits and the permits in question.”

Graves also stressed several differences between the cases that would be brought by the parishes and the one filed by the flood protection authority. In the case of the former, he noted, the action would be led by elected, rather than appointed, officials. Also, he said, state law allows parishes to enforce coastal regulations and force companies to comply with permits, and the parishes would not attempt to “apportion blame for coastal land loss,” an apparent reference to the parishes’ focus on specific damage by specific companies.

Graves also said the legal contracts in the parish cases would not rely on contingency fees for the lawyers, while he said the flood protection authority’s suit, which gives lawyers a sizable percentage of any proceeds, could lead to billions of dollars going to attorneys.

Former flood protection authority Vice President John Barry, who championed the board’s lawsuit before the Jindal administration recently replaced him as a commissioner, said spurring action by other entities was one of the reasons he pushed for the suit.

“We believed that our actions would provide some political cover for others to take similar action. We felt our political independence allowed us to go forward where others might not be able to go first,” Barry said. “We always both hoped and anticipated that other people would follow.”

The parishes’ cases would be less legally complicated and more shielded from political interference than the suit brought by the flood protection authority. While that board must prove a chain of causality that starts with coastal damage and ends with an increase in the storm surge that can threaten the east bank of the New Orleans area, the parishes would likely have to prove only that damage and land loss occurred because companies failed to adhere to the conditions in their permits.

While the Jindal administration has said that the levee board suit will be shot down in next year’s legislative session, the cases brought by the parishes would be more difficult to dispose of. That’s partially due to politics — the councils bring their own constituencies to the issue and state lawmakers may be reluctant to cross them — and partly procedural, since the state has much less say over the makeup of a parish government than it does over a state-created board. Support for the parishes’ suits, however, could also tamp down efforts to cancel the flood protection authority’s suit.

All sides of the issue said they would rather be able to deal with the issue of wetlands loss without resorting to litigation.

Plaquemines Parish President Billy Nungesser said the proposal for a suit came from the council, and he distanced himself from the case.

“I have very little say-so,” Nungesser said, noting he had not seen the proposed lawsuit. “I’m very curious because in Plaquemines we’ve been able to sit down and work out all our issues with the oil and gas industry.”

Graves expressed a similar sentiment: “We believe that attempts to work cooperatively with industry would be a prudent first step in addressing any potential liability.”

Barry, who has announced plans to form a nonprofit organization focused on reversing the damage industry has caused to the coast, has also been a proponent of a global settlement between companies and the state. “No one wants a 10-year court fight, even if we win at the end,” he said. “I’d rather have that than nothing, but it would be much preferable if there were agreement between industry and the affected areas.”

Marinovich also said negotiating with energy companies could have benefits, though he argued that doing so would mainly benefit the companies by sparing them the costs of going to trial. He also dismissed suggestions that a suit would cause the energy industry to abandon Louisiana.

“We keep hearing from different people, including the governor’s office, that we’re going to run off big oil,” Marinovich said. “But the oil’s here in the ground.”