A state court judge in a Louisiana has reversed himself and revived parish’s suit against Exxon Mobil Corp., Chevron USA Holdings Inc. and seven other oil and gas companies over the loss of coastal wetlands allegedly from decades of oil and gas exploration activities. Judge Stephen Enright found no good administrative remedy to be available through the Louisiana Department of Natural Resources (DNR).
Judge Enright had dismissed Jefferson Parish’s lawsuit in August, saying the action was premature because the Parish first should have voiced its concerns with the Louisiana DNR. The Parish, with support from Louisiana Gov. John Bel Edwards and the DNR, then asked Judge Enright to reconsider his decision. It was contended that there was no feasible way that state regulators could realistically handle all of the allegations made by Jefferson Parish and other parishes bringing similar litigation over wetlands loss. Judge Enright wrote in a Nov. 7 ruling granting the motions for a new trial:
Based on the Affidavit of the Secretary of the DNR, the DNR clearly lacks the ability to handle the necessary administrative actions in this case. According to the Affidavit, the LDNR does not have the staff, funding or capability to conduct the thousands of administrative enforcement actions that would be necessary to address the violations alleged in the parish lawsuits.
Judge Enright said there is no way the Louisiana DNR would be able to deal with those actions while also doing its everyday monitoring and enforcement activities. John Carmouche, a Talbot Carmouche & Marcello lawyer representing the Parish, told Law360:
We think the judge made the correct decision and look forward to pursuing the claim and getting a trial date and letting a jury decide if the coast in Jefferson Parish can be restored to its original condition.
There are four other Louisiana parishes, which are the equivalent of counties in other states, that are suing various oil and gas companies over similar allegations. Judge Enright’s ruling is not binding precedent on judges in other parishes. A joint Defense group that includes BP PLC, Chevron and Shell Oil Co. criticized the ruling in a joint statement:
The Department of Natural Resources’ assertion that it is ill-equipped to review the permits in this case is dubious at best, especially considering it was the agency that issued the permits [allowing the exploration] and that it has a 40-year history of working with industry to resolve its concerns.
Thus far, Louisiana has intervened in more than 40 lawsuits against various oil and gas companies over the loss of coastline in five parishes, and with 15 parishes comprising Louisiana’s coastal zone, more lawsuits are expected in the near feature, according to Donald Price, special counsel for the state’s DNR. Price told Law360 that that the state is suffering a “catastrophic land loss” problem, having lost a land area the size of Rhode Island since 1930.
While the loss of land has many factors, Price said the available science suggests oil and gas exploration has contributed to a substantial part of that problem:
• canals used to access oil and gas wells have gone unfilled;
• pollution has killed off vegetation that was holding the soil together; and
• pumping up fossil fuels has led some areas to sink.
Some of those activities were allowed by permits, according to Price, but he said the suits allege that some oil and gas exploration activities either violated their permits or were conducted without obtaining permits.
Gov. Edwards has backed litigation against private companies as a way to help fund the state’s master plan for coastal restoration. This plan will be renewed next year with a price tag “widely assumed” to be somewhere between $70 billion and $100 billion. Jefferson Parish is represented by Victor L. Marcello and John H. Carmouche of Talbot Carmouche & Marcello. Louisiana and the LDNR are represented by Megan K. Terrell of the Governor’s Office of Coastal Activities. The case is The Parish of Jefferson v. Atlantic Richfield Co. et al. in the 24th Judicial District Court for the Parish of Jefferson.
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