WWL>Topics>>6-10 2:10pm Open Mind: Bill Restricting Coastal Protection Lawsuits

6-10 2:10pm Open Mind: Bill Restricting Coastal Protection Lawsuits

Jun 10, 2014|

Angela talks to Author, formerly with the SE Louisiana Flood Protection Authority, John Barry and Lead Counsel with Fishman Haygood Jim Swanson about the bill Governor Jindal signed into law that restricts the legal rights of Louisiana citizens to hold oil and gas companies responsible for coastal damage.

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Automatically Generated Transcript (may not be 100% accurate)

I wanna thing Jim O'Donnell and again for spending a whole hour with us we always get a lot of calls because people have many questions and he's. Very generous with this time and so thank you Jim Donald. Moving on I'm sure you have heard of the lawsuit filed against 97 oil and gas companies that was filed to make. Those companies responsible. For the damage they did building canals through our wetlands. The lawsuit was filed by -- southeast Louisiana flood protection authority east. And I'm sure you know that at least fifteen bills were filed in the past legislative session. Aimed at stopping the lawsuit. From ever making it to court. One of the bills got through and was signed by governor Jindal. But with that signing comes the concern. That the bill may have effects beyond stopping the one lawsuit. It could according to almost a hundred legal authorities. Affect any number of claims even against BP. We have many questions. What specifically does the bill governor Jindal signed mean. Will there be another lawsuit filed to trying get the oil and gas industry to clean up the mess it left -- on wetlands. And more. With us to talk about it all is John Berry leader of the lawsuit formally -- the southeast Louisiana flood protection authority. And author of rising tide the great Mississippi flood of 1927. And how it changed America. And Jim Swanson one of the lead attorneys with the lawsuit. And lead counsel with freshman hate it and I thank you both for joining us thank you and probably some difficult days the last couple weeks or months. Marks a tough battle -- intense very intense hopefully just deep Rasmussen okay now and every group I know this sounds almost. A sophomore. Way but. Why should -- People care about this -- Why should they cared that the governor. Scientist. When. -- go for us. Number one that the -- Lake Pontchartrain basin foundation says the levees protect the people homeland protects celebrities. The land outside the levees. Kutztown storm surge from -- As that disappears. People inside the -- system finalized becoming more dangerous. So the purpose of of the suit. -- is to get the company's. To do what state law are required them to do and -- in most cases they agreed to do voluntarily when they got their permits. And that was to restore. Quote this is a quote from the state or restore as near as practicable to the original condition on quote the lancet they damaged. There is no question that they did damage to plants so they increase the arcane threat to the metro area and everywhere on Thursday. So that's why people should care considers no other funding mechanism. To protect people. There's just no money the state dynamic money. The federal government's not gonna come up with fifty billion dollars price tag in the master plan in college him at every once and. I think their two major expenses that are going to the state is going to be facing over. Over the next twenty or thirty years one is the cost of funding the master plan the coastal master plan to restore the coast. Which is mostly unfunded bait basically 50% at least unfunded. And the second is that as the coastal roads you're gonna have to do and make improvements to the Levy system. And those improvements are going to cost a lot of money so. -- to the extent that the law that was passed. That would in -- immunized oil and gas industry from paying -- cost those costs are going to be paid by the taxpayers here. And so everybody ought to be concerned about that because to the extent we can't be hold the people who are legally responsible responsible. We're gonna end up paying those costs ourselves. In fact my biggest concerns a little different I don't think the taxpayers will pick up those. Cost I think they'll let things slide and slide and slide and DD master plan will never get properly fund. But it's clear the oil industry if the law is sustained in court goes on surety attorneys who challenges. It's the only vehicle -- appeared to collect dangling from the auto companies. And it to burn will go to -- The governor signed the bill that in essence and that this. The plot of the flood protection authority. Could not. Take it to court is in my correct in that or is that no one can take the oil companies to court. Well I think it's a little both the bill was aimed specifically at two the south Louisiana flood protection district authority but. It had sort of collateral effects on on the parishes. And on the other -- authorities throughout the state and it is substantially restricted everyone's rights. To the extent told the laws -- valid law. -- either of you aware of any other kind of legislation like this that has ever. Said you're gonna lose your right to go to court. There it's very very rare the the precedent that has pointed to by Tuesday oil and gas industry is. There was a law that was passed to in the eighties. That affected a lawsuit that was filed by the city New Orleans against the gun manufacturers and that is the only situation that I'm aware of where law was passed. In the middle of a lawsuit that was designed to affect an ongoing losses. So this thing of being retroactive I think with this disturbing as anything. Right very unusual that you would affect the rights that are in court already and in a case. That is ongoing very unusual to have to pass a law that is designed specifically to it to end of ended on going loss. Right in the collateral damage Tim referred to a minute ago. For person a number of law school professors and judges who have now has now signed on to that. Memo is a 116116. If warned that it could get sacked claims. On the BP spill that many paris' then and local governments entities happy dance beat me. And of course attorney general also. Urged the governor to veto the bill but despite all that you signed it. He ended because somebody he did talk to somebody who says no it's okay well his executive council. You know wrote a memo which you could end up against a 116 law school professors. -- who's right. I think moon. Whether or does or does not affect BP. And that remains to be determined. It is crystal clear that it will affect future. Accidents and those accidents will be inevitable that occur. And that twelve miles coastal zone of the state of Louisiana and -- probably better to elaborate on that but there's no question. About that limitation. Well it may mean for example if the deep water horizon. Spill that occurred in in within the coastal zone there's no question that it would have affected. The rights of the parishes and of the Levy districts and other governmental entities to recover from that so. In the future if we had a similar incident but closer to shore is no question that it would be foreclosed by this law that has been -- So in other words the governor by signing this has given a free pass to the oil and gas industry. Very much so. Take a break when people think about this and we do have a caller we'll get to you billing and -- Don't hesitate to call us if you have any thoughts on this 2601870. Financial -- -- WL. We are back talking with John John Berry and Jim Swanson who had just been through the battle royal in Baton Rouge. And having lost at least one battle maybe not the war but the battle. When governor Jindal signed a bill on Friday. Not negating a lawsuit that was sound -- by the southeast Louisiana flood protection authority trying to get oil and gas industry to clean up the mess -- left. And I keep going back to that because. Again correct me if I'm wrong. That was the bargain. You come in you do your work and then you pick up after your messed. Right I mean people say the levees cause a problem in the levees are one of the problems there are multiple causes but there's a big difference between the levees and what the industry -- The entire society built -- Baton Rouge new war on as the industry in between the port none of that would exist if it weren't for the levees and an unintended consequences. The industry was different every those consequences -- now and in return for the private opportunity to make profit. They promise to the society. That they would fix. The damage that they call us. And they made the profits they took in the last twenty years. Something like 500 billion dollars in profits out of the state. And and they never kept their word. They never went back and fix what they said what they promised. Two facts. And so this lawsuit. Is saying to them you must fix the damage how do they do that mean exactly how do you. Fix the. Well they did you know. Part of it it sort of depends where it is but the problem is in some cases you would expect them to go back. And repair the part of the coast of that he destroyed in some cases that'll be opened Warner and now be physically impossible. To repair. Man they would've demon and still made him depending on what happens in the court. They would give the plot authority. Money to compensate. All of which all that money Corus would go to enhancing the flood protection system and making people safer or you might not you know something's. Damage it's not -- -- critically strategic area where few fixes that would protect populations. Might -- Nixon and Alice spot where it would for. Protect the levee system instead of out where the actual damages. Okay let's go and take a caller Billy I appreciate your holding on. By popular demand programs are so stupid errors. My whole it's. You know also visit. -- on which. -- thousand you -- -- and there was some. Backs were silent as the match which Jerusalem and then there's so rules. You know there should do plummeted as human Wimbledon the water should confidential. Both slope. Land and you don't. Dissipated and social typically property and Kabul war. Of course that you mentioned this bands who have both agree to that the law is -- I'm grant to develop so this country that. Do that and which register. Its citizenry to the self produce effects so that people. And so the government like government on the news. Wouldn't attempt to do about animal that's purposes so what he's doing some things in the state and social. I could -- The case so that it reduces the they're important there could -- brought up at some years. And we need to -- to help fuel and their background as securely to it was clear that he would side. This legislation to stop the -- so what we do. You know and 21 grand national what do you hope it to do that you need to assume some industry. Two and target Beckett took the boat. Goodness static picture which -- -- opposite problem. Do we for the bank now in well. I've really. William Morgan elect. June -- Well that the very first question is what does this law really do outlook be interpreted by the courts there are various issues involved in this one of witches. The question of and the legislature reach into the court system. We have separation of powers under the Louisiana constitution where. The independent branch of government outpost near each other legislative reasons post here. In after the judiciary so there's the real question whether it's laws constitutional. And I think that would be the first order of business system is to find out what the courts that say about that with that take a long time. It could take you know up I would think it could take a year you -- You would first have to address in the district court and then it automatically jumps over the court appeal goes the Supreme Court so. That process I think could be a year a year long process but I think it's something isn't. It take five years and yours or something like that. -- the the other thing about this -- is it's unclear what the scope of it is because it was written. In and just to digress and it was it was written in great haste because. It was it was basically a substitute bill for a bill that couldn't get through one of the committees. The senate so it was hastily put together it was it's sloppily and vaguely worded. And it appears to us that it may well not actually capture. The cold some of the claims in the lawsuit. Although it's going to. He may well capture some cleansing -- -- intend to remove so it may not accomplish what it's about to do and in fact may affect others corrected it to me have it may be. That they aim that this -- in the flood protection authority and that it the parishes -- And other government entities. Have you talked the other governmental entities what are they going to do. Well they what they tried to do was to get the governor to veto the bill the city council of Orleans parish this. It created a resolution the effect and I think John young and a saint Bernard parish authorities -- update or Alter. Also. Requested that he veto it as did the attorney general. And as did it you know wide swath of law professors it's not just law schools within the state but law schools all over the united it's. And so once the first step then is to see if it. What to go to an appeal to see if it's gonna hold up as it is. I think the the first step is to is to talk to them. -- flood protection authority and find out what what they wanna do but that the first step after that I think would be to figure out whether this bill does what. It was intended to do by governor Jindal in the oil industry and their constitution -- challenges to that and there are challenges. Based on the scope of what it actually does which I think our. Are very significant. Obstacles to saying it. That this bill -- purpose. If all of that fails. Even in a year however long it takes what if a non governmental entity and I think that the blood report the sort of -- and just a group of citizens file suit. Well I think that's another possibility is that. -- of the citizens that are within the Levy system here in. In our area Orleans Jefferson Saint Bernard they are at risk by virtue of the loss these coastal lands and at least theoretically they would would have legal claims. That the legislature hasn't tried to effect yet and that he would be very difficult for the legislature to effect. Because. Legislature clearly cannot take away the rights of private private and. Let's just say I've been reading statutes I'm class action lawsuits last few days. Now that says everything stay with -- everyone not we're gonna go to the newsroom will be back keep your calls coming to 60187. Will we are back talking to John -- engine Swanson were talking about the action Friday of the governor signing the bill that. Is trying to get rid of the lawsuit. -- against in 97 oil and gas companies. A lawsuit filed so that they would. Sort of pick up the mess they made. And and to help us to help the coastal erosion that we all face. We do have some callers let's go to is there. Mary in bush. I have a question and not been and listen not to want to find out beyond the point that it filed against BP well isn't that. Affect total output of Oslo again and also like -- -- -- of people who local BP directly what you know Caribbean and a and if it's felt well. Be affected a lot. If if they're private citizens to build us in the fact and so private Kennedys and and private citizens will be affected by the spill but if there. Public Kennedys like the parishes who all have many of them have claims in the VP case say they will be subject of this law and there will. Probably be some delays attended to figuring out what the law means. -- -- -- -- -- What did things the point Aqua ball again and probably right. Probably not the private claims by individuals probably. Thank. You appreciate it thank you Mary for calling let's go to Al. Ultimate -- in did you. And that. You know calm calm picked up five well all eyes you'd have both her role -- ball back there. And outdated that my self what they are built -- they're going to be here. Well. Connect garden and now to the all of this and yeah well. Cold that we -- -- told. Them -- fought it own pocket. I don't think you -- -- -- Margaret I'll I'll I'll plane it was created -- Or shock me an adult and far and everybody being breeding. Why -- -- it. I'm are all banged but he did. And it. The big -- -- in the market. Thank you try and. I would just say you know I agree with you unfortunately. But I hope you vote. All of you vote in the next election night hope view. Find out what York state legislator did. And let him know. That you will remember. Coming I think that's a very important thing that the government may have signed it but it it passed. So who who was interested to. Well I mean 222 -- file from Saint Bernard and a clue Russo from lake view. Their districts were underwater. In Katrina and they voted against the lawsuit they voted to kill the lawsuit and there are other. People on the metro area. Another half a dozen legislators. Who voted to kill the lawsuit in the metropolitan area new moral. When you all were up here did you hear any philosophical. Reasons. We're doing this because. What we don't like how the lawsuit is or we're doing this because oil and gas is an important. Economic engine in the state. Well about the thing that they kept throwing up. Ways that contract with the turn. Apparently. They ran it. Is it Exxon's not -- its attorneys. The reality is I started. I was responsible for finding a law firm that conducted with others but -- who's in charge sur community attorneys. And I started out looking for somebody would do it pro Bono either national environmental group and academics and -- something. Actually found one that was interested in doing it but didn't have millions of dollars cash. To put out for expert witnesses mr. go case something like fifteen million dollars. Out of pocket plus tens of thousands of hours of the time from that team of attorneys they lost. Anyway. I went to I did it this was a nationals are. We ended up with I regard as a great team of attorneys. They offered on both. Last August 2013. A few weeks after the lawsuit was filed they offered to waive their contract. And go to arbitration to determine their fees they essentially made the same offer again in April I mean that. But people -- the last would would use that and they would say this was. -- the AD the oil and gas industries say this was all about deterrence effect is the idea for the lawsuit. Came from the -- authority. Because we -- felt we were had to have money to protect people's lives and property. Well those lawyers are more on the show in April when they said they would change their whole thing and and do it on contingency in other words of the -- no money coming into them. Right so if that was the excuse their argument was that oil guessed you were saying these -- are gonna get rich we're not time. Well unlike the other side pay no attention to facts. And it and I mean for example. The lot of authority is there was a court decision in March that said. That what the authority did was legal. That we had all the legal justification necessary to assume we had standing in court and things like that. That didn't stop people on the other side from going around saying that the authorities acted illegally. You know they just don't tell the truth so you have to take billboards -- and saying this is the truth. According to this court I you know honestly I don't think. People who voted against lawsuit believe that any of that stuff. You know there's a line -- its. You know excuse not a reason. They were going to vote against the lawsuit may just we're casting about for some kind of thing that they could claim they were voting against losses for the fact is either. Bowed to pressure. Or Witten and sometimes there's a war there were threats made. And or they were simply bought off by campaign contributions. So. Look -- let -- go to this call canning and Saint Bernard. Q did you not call up question. And -- outcry out the best majority. The now. By now that DO company -- wrong Robert. Which dictate the private land owners hopefully use and a lot to do. So why do you Cornish what you wanna shoot it may -- -- a right to do that judicial and -- Well the the answer -- that is that under the law the oil companies. Are subject to two different sets of obligations one of them which is created by the permits. That are entered into with state and with. With that the federal government and those those permits from the beginning have had very clear restoration obligations and when you finish what you're doing. He restored the property to it's it's basically to it prior. Natural condition and they -- whether it was owned. My problem private brother was owned by private property owner thing you have to have federal or state permits and a and the permits and have that requirement. Also sense and going back on a long long time at least back into the seventies there have been. Coastal zone regulations that require essentially in Louisiana at the same thing. And the reason that those permits have that language and then and the reason that the coastal zone regulations of that language in them is to protect. With the property. The -- for for every one all of the citizens of the state and to protect the flood protection district from. From. From having to build bigger and better levees all you know all all the time going forward. So to say that. That the oil and gas didn't know what their obligations were back in these periods of time when they were doing these operations is. It simply isn't true that it's all in black and white it's all in state and federal permits and it's all in coastal zone regulation so. That the people who did this where the oil companies that wasn't the landowners who didn't and that's why the suit was focused on the oil and gas companies and not the land -- -- Stay with us we'll be right back on Angela under the -- well. John very ancient Swanson are very special guest talking about the lawsuit that was filed on against the 97 oil and gas companies that. Actually went before the legislature and where the governor has now signed off that John it is is illegal is at the rightward. Well we don't have the right of action. Or it's lose the point legislation to make one comment on your last caller who asked why he didn't suit the land owners to put it simply. This land owners didn't do the -- The authority did not. Decide to see the oil companies because they had money although of course of -- there -- -- no point filing -- The authority decided to sue the oil companies because they broke the law. They violated their permits they broke the law. That's what the lawsuit is based upon and the land owners didn't do those things so there's a reason to suit the landowners. And the oil and gas companies do not want to go to court. Because they know they broke the law. I would guess for ordinary issues. OK and another caller Paul. Hello Paul yes yes. I was calling but but we -- it's a patient actually very one sided yes. I am. -- that -- it gas industry. The fact that these permits were issued by the quiet -- urged. Who had a government supervision Corbett junior topic of mentally. That accept the permits were issued and the -- -- there's only -- -- who used the arm I'd anesthetic that is not correct. Apartment we -- legally -- Oh and it's been barely. People are saying oh -- regards to everybody else not so in the court Ayers. Not stupid -- that we had a carpet. It's better we immediately. Think you know. I think. That it's not. -- -- The permits themselves have provisions if if we were looking at -- and the right in front of us we could read them. And they would be very clear that the oil and gas companies who -- the permit holders. Have failed to restore the property as the permits requirement to do. So. I disagree with the caller that it that that there's anything misleading at all about. Lilies they like it's clear -- and that I quoted earlier may be wasn't listening this is a direct quote from one others state regulations. In areas it must be restored as in the air as practicable. To their original condition unquote. You find me an area. Anywhere in the state. Where -- and oil any oil company did that. I don't believe that's possible. And the corps of engineers. Their immune. Why sue somebody whose immune. In addition as I said earlier the entire society. Decided to build those levees. And there were unintended consequences. The oil companies. Agreed. To the conditions. When they started our operations. -- in return for the making of profits. They would fix the area that they dammit. They broke. There were the issue at anywhere along the line I mean they've been out there a long time. Has any government and agency said you know you need to start repairing. There were there were sporadic periods in this in this time framework that did happen it didn't happen consistently and they are there active where there where their efforts by the government to. And force the permits and there were actions taken in the repairs gone back the fifties and sixty okay well yeah and going back and there are certainly appeared. I'm not cents a department of natural resources was formed in 1970 sex. But that the one thing I would say I'm I'm not a politician on the lawyer absent that from a legal standpoint this is about as close to a lock -- cases you could ever find and that's because. Every scientific study that studied this has has found that oil and gas. Bears have a significant responsibility for these damages and there are literally something on the order of forty peer reviews studies that that say that cell. You don't hear anybody saying that these activities didn't cause this problem and everybody acknowledges that. And as far as the evidence is concerned there are aerial photographs going back. Way back into the fifties. On -- a a fairly regular basis and you can see exactly. What happened you can see that the canals were -- to concede that they had been fairly well defined banks and that as time wore on. The banks disintegrated the water that water port Kate came in from the canals into the marsh in the marched side and then you have open water later. That is about as good evidence you can have a lawsuit that's why I was attracted to this project. Because it's a very wonderful lawsuit and just as a lawsuit. I really appreciate both of you be here this will not be the last time you're here I hope you'll come back. Will need to continue as things evolved. Thank you so much for your time and thanks to all of our callers will be right back I really appreciate John -- spending the hour with this. You know it isn't our last -- it isn't. I think -- for a great many people people are anti oil and gas company it is the deep concern for the future of the state. And hopefully they will get their arms around each other and somehow we were working out -- we'll continue to stay on it I hope you'll stay with this because our next -- very different from this last one concerns the holy cross neighborhood in a battle they are. Going to be waging very very soon it's interesting I hope you stay with -- I appreciate again you being with -- this last hour.