Environmental (and political) junkies got a double fix on Nov. 18 when The Lens hosted a Breakfast with the Newsmakers discussion between Lens environmental writer Bob Marshall and Gladstone Jones, the lead attorney in the Southeast Louisiana Flood Protection Authority — East’s lawsuit against more than 90 oil and gas companies.
For an hour, the two discussed the lawsuit, what has happened so far, how Jones’ firm will be paid and what’s next.
In July 2013, the board filed suit against almost 100 oil and gas companies, demanding that the companies pay for the damage they caused to wetlands within the board’s authority. The allegations, in general, are that canals and other projects in the wetlands did not follow permit requirements, causing land loss that has affected the coast. The suit seeks funding from the companies to repair the damage to the coast.
Although the suit was filed more than a year ago, to date the firm’s efforts haven’t been focused on court, Jones said.
“We’ve been locked in hand-to-hand combat over political matters,” Jones said.
“This case has not been about litigating; our efforts have been focused on keeping the case alive. “ Several bills were filed in the Legislature that were “kill shots” at the case, and the attorneys handling the case had to learn to be lobbyists in a hurry, he said.
Now, “we’re finally back at our arena, which is litigation,” Jones says. “We’ve been litigating for the past month.”
Currently, the suit is in the “Motion to Dismiss” phase, which is a normal phase in this type of litigation, Jones says. If the suit survives it, the next phase will be discovery.
In federal court, the parties work out a discovery schedule together, which includes a trial date. Jones said the suit could have a trial date as early as next year, or perhaps in 2016.
The discussion between Marshall and Jones was a fast-paced one, between two experts.
The suit has “approximately 90 defendants, who thank goodness have organized themselves,” Jones says at one point.
“How?” asks Bob Marshall. “I don’t know, I’m not on their conference calls,” Jones quips.
The fact that the case is in federal, and not state, court makes a difference, Jones says. While almost every decision made on the state level can be appealed immediately, that’s not so on the federal level, he says. That means that some appeals may come now, while others will have to wait until
the final resolution of the suit.
To date, Jones estimates that the law firms handling the case have fronted approximately $2 million in fees and costs, along with more than 15,000 in attorney hours. The contract with the levee authority is a contingency contract, but also has an hourly rate clause, dubbed “the poison pill.”
Noted author John Barry, a driving force behind the suit who lost his seat on the authority because of it, interrupted Jones’ description of the clause.
“The normal risk [for a contingency fee case] is losing in court,” Barry said. “But we all recognized going into this that there was a political risk that I didn’t think was appropriate for the attorneys to bear. That’s why I proposed the ‘poison pill’ provision, because I didn’t think that was fair. It was my idea. It was not the attorneys’ idea.”
It’s still a gamble for Jones and the other attorneys handling the case, but Jones said it is necessary.
“The problem is huge, and the inability to do anything, to not fund this master plan, is critical,” Jones said, noting that there are coastal communities that will be wiped off the map in our lifetime without action.
And why? Well, the oil and gas companies aren’t alone in their responsibility, Jones said. “This was an utter failure of government.”
The U.S. Army Corps of Engineers didn’t enforce permits under their control, and neither did the state Department of Natural Resources.
Amazingly, DNR officials came to hearings to testify they had never seen a violation of any permits, Jones said. “It took my group about two weeks to find hundreds of violations,” Jones noted. “Private land owners can’t rely on agencies to make oil and gas companies to do the right thing, so they have to hire us to go and prosecute the case,” he continues. “Without this process, without us to force them to clean up these properties, they would never be cleaned up.”
This case is not a typical pollution case, where it is hard to see the damage, he added. With aerial photography, you can see the canals and the surrounding land loss.
Industry has two approaches to defense, according to Jones: The landowners will just pocket the money, and the suits are just the product of a bunch of “greedy trial lawyers.”
“That’s it. That’s all they’ve got,” Jones said. “And we’re ready for that.”
Whether via this particular lawsuit, another lawsuit, or a settlement, this issue is here to stay, Jones made clear.
“These nine folks who made this tough decision to file this lawsuit, without regard to politics, as a result of that decision, regardless of where this suit ends up, I don’t think this issue is going away for the oil and gas companies,” Jones said of the levee authority.
“Ultimately, whether this case, a private landowner case, a class action, I think it is inevitable that [a settlement] will happen.”