St. Bernard Considers Oil and Gas Suit Similar to Plaquemines and Jefferson

The Times-Picayune 
By Benjamin Alexander-Bloch,
on December 04, 2013

The St. Bernard Parish Council has passed an ordinance allowing parish government to enter into "a reasonable attorneys fee contract" to sue oil and gas companies for damage caused to local wetlands.

Plaquemines and Jefferson parishes filed lawsuits last month demanding that dozens of oil, gas and pipeline companies repair damage caused by dredging and other operations, and remove waste materials that were improperly disposed in wetlands, all in violation of the terms of permits allowing them to operate in each parish's "coastal zone."

The suits, including a possible St. Bernard suit, take the form of what the oil industry calls "legacy lawsuits," seeking to force the companies to repair damage that was caused when canals were built through fragile wetlands, and to remove toxic wastes that were placed in unlined pits near drilling operations -- or to compensate the parishes for the damages. The lawsuits are narrowly tailored to take advantage of the parishes' special authority under state law to regulate the "coastal zones" that includes wetlands within their borders.

But in terms of the St. Bernard suit, Councilman Ray Lauga and other council members Tuesday evening questioned whether the parish would be on the hook for costs if it ended up losing any such suit and asked that Parish President Dave Peralta look into that before agreeing to move forward. Peralta likely will not meet with potential attorneys until next week.

The proposed contract, however, states that "attorneys assume full responsibility for advancing any costs or expenses necessary to prosecute the claims covered by this contract." But, it later states that the contract is not "a contingency fee contract," and so council members were looking to get further clarification.

The contract also states that if the parish decides to end the suit "prior to the full conclusion of attorneys’ services under this contract," that the parish might have to pay attorney fees.

The council ordinance gives parish government the authority to hire attorneys with the law firms of Carmouche and Associates, LLC., Cossich, Sumich, Parisola, & Taylor, LLC., and Connick and Connick, LLC.

Jefferson and Plaquemines signed a contract with the Talbot, Carmouche & Marcello law firm of Baton Rouge to represent them in their suits.

While no specific oil and gas companies were named in St. Bernard, the firms named in the previous Jefferson and Plaquemines suits include a number of the 97 companies that were sued earlier this year by the Southeast Louisiana Flood Protection Authority-East. That suit was filed under separate provisions of state law that prohibit operations along the coast from impeding the abilities of levees to protect areas from storm surges.

Gov. Bobby Jindal vehemently opposed that flood authority suit, in part saying the suit disrupts the state's implementation of its coastal restoration and protection Master Plan. And since the filing of that suit, Jindal has appointed replacements for three levee authority members whose terms had expired, including former Vice President John Barry, who proposed the lawsuit.

The Southeast Louisiana Flood Protection Authority-East's President Tim Doody's term also has expired but Jindal had not yet moved on either reappointing Doody or appointing the other potential nominee, David Gorbaty, who was selected by an independent committee in September as the option to Doody.

But, in an interesting turn Tuesday, Peralta announced that Gorbaty has been selected as St. Bernard's new chief administrative officer, thus making Gorbaty ineligible to serve on the flood authority. "No public employee or former public employee shall serve as a member of the board within twelve months of the termination of his employment other than as a member of the board,"according to state law.

The authority is scheduled to hold a special meeting Thursday to consider a motion on whether to reaffirm approval of a controversial lawsuit it filed in July, seeking damages from 97 oil, gas and pipeline companies for wetlands loss adjacent to the east bank levee system. It remains unclear whether the governor has the votes on the authority to overturn approval of the lawsuit.

If Jindal decides he wants to replace Doody, the independent nominating committee likely would have to meet again to select another candidate. But, it is unclear whether the nominating committee would have to meet since it already had provided Jindal with the required two candidates and one of them, Gorbaty, then later fell through.