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A state Senate committee early Thursday advanced an alternative to the Louisiana House-passed legislation that addresses “legacy lawsuits.”

Senate Bill 731 was advanced by the state Senate Natural Resources Committee on a 3-2 vote, which would allow the full Senate to consider the legislation early next week.

The Louisiana House approved House Bill 618 late Wednesday on an 82-19 vote. The measure is awaiting a committee assignment in the state Senate.

Lobbyists and legislators portray HB618 as the oil industry’s solution, while SB731 is what big landowners support.

At issue is litigation stemming from the contamination of land by oil and gas drilling activities over the decades, called legacy lawsuits.

The oil industry say though operators were following legal and accepted practices at the time, the companies are willing to clean up well sites that were damaged by drilling and production years ago. But the civil lawsuits expose the companies to all sorts of other claims that could cost millions of dollars.

The owners of the land counter that oil companies are only willing to clean up after being sued and are trying develop procedures that would limit the amount of cleanup necessary and the amount compensation paid for other damages.

The sponsors of HB618 and SB731 said Thursday their individual measures are attempts to develop legislation after months of fruitless negotiations between oil companies and the landowners. “This is a good honest effort to try to find common ground to propose a solution,” said state Sen. Bret Allain II, R-Franklin, who sponsored SB731.

“Actually, both of these bills are very similar,” said state Rep. Neil Abramson, D-New Orleans, adding that there is plenty of room for agreement.

Abramson notes some significant differences. For instance, Abramson’s bill does not address indemnification. Allain’s includes a way to nullify agreements in which current owners of the right to drill agreed to assume the responsibilities of all the previous owners of the leases.

But the two sides are not far apart on some other issues, Abramson said.

For instance, Allain’s SB731 would require about a half-dozen state agencies to authorize any exceptions to the regulations that govern how extensive cleanup will be.

“The exception is where the value is,” said Jimmy Faircloth, a lawyer representing some of the state’s largest landowners. “The difference in the exceptions could be the difference between $1 million cleanup and a $25 million cleanup.”

Abramson said he could agree with having the agency, whose rules are being used as part of the exception, sign off on the cleanup plan. But a half-dozen authorizations are too many, he said.

Gifford Briggs, vice president of Louisiana Oil and Gas Association, said the provision as written, however, gives veto power to seven state agencies.

Faircloth said the language is broadly written. That language could be tweaked, he said.

“Adding agencies that are supposed to lend some oversight is always good,” said Baton Rouge lawyer Donald Carmouche, who represents landowners in legacy lawsuits. But he opposes both bills, arguing that the current system, though cumbersome, works to clean damaged sites and recompense landowners for their losses.

Briggs said the industry supports Abramson’s HB618 but is open to negotiations on Allain’s SB734.

“The two bills do look similar on the surface. But when you get down into it subtle word changes that have far-reaching impact,” Briggs said. “It’d be hard for the industry to agree with the (Allain) bill without amendments.”

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Landowners have answered the oil and gas industry with their preferred rewrite of the rules governing the lawsuits property owners file against energy firms alleging environmental damages left behind after exploration and production leases are up.

The landowner version, which the Senate Natural Resources Committee passed 3-2 Thursday, is similar to the industry-backed bill that cleared the House of Representatives a day before. Jimmy Faircloth, a former executive counsel to Gov. Bobby Jindal and the lead negotiator for Weyerhauser Corp. and other major landowners described Senate Bill 731 by Bret Allain, R-Franklin, as an honest attempt to reach a fair compromise.

But industry players — and their most powerful advocate in the dispute, U.S. Sen. David Vitter – say Allain’s effort is not good enough. Vitter, who has described the so-called “legacy lawsuits” as a “trial-lawyer bonanza,” blasted the measure as a sleight of hand by Faircloth and the plaintiffs bar.

With five weeks remaining in the legislative session, all sides say they want to rewrite existing laws to speed the cleanup of old oilfields while shielding Louisiana-based energy firms from shouldering more than their share of the costs. Landowners, meanwhile, insist that they not lose the ability to get a fair jury trial as they seek to be compensated for harm to their property. The multimillion-dollar question is how to reach those goals.

Rep. Neil Abramson’s bill would have the state Department of Natural Resources step in to develop restoration plans whenever an energy firm claims responsibility for certain damages caused by exploration and production. That mitigation plan, including the cost, would be admitted as evidence in any subsequent civil lawsuit filed by the landowners who leased their property to an energy firm.

That represents a significant shift from existing law, which leaves it to a jury in district court to decide responsibility for what are called regulatory damages (effects, such as open waste pits, that are subject to state environmental regulations) and private damages, which refer to claims that fall outside state environmental regulations. Private damages might include crop damage or lost economic opportunity. State regulators get involved in crafting a remediation plan for regulatory damages only after a case is settled or a verdict assigns responsibility. In either instance, a judge has final approval.

Like Abramson’s proposal, Allain’s bill would allow a defendant to make a limited admission of responsibility, but the senator adds significant details for what happens next. Allain would require the admission to occur with 120 days of a landowner filing suit; 60 days after the admission, the party would have to file its proposed remediation plan for the damage that is covered by DNR’s regulatory authority. Besides the responsible entity, any party could submit a plan or comments as DNR crafts its judgment in the matter. DNR’s deadline for a final plan would be 60 days after the energy firm first submitted its plan, meaning a maximum 240-day span between the initial civil complaint and the remediation plan.

As does Abramson, Allain’s bill would make the final plan admissible in court. Faircloth has previously said mandating admissibility unfairly strips a district judge of primary jurisdiction and potentially biases jurors as they consider private damages beyond the regulatory damages.

Vitter said the timeline would set “unrealistic deadlines that will nearly ensure that a credible and admissible cleanup plan will not be developed in most future cases.” He also argued that the timeline effectively makes the bill apply only to future cases, meaning scores of pending suits – involving oilfields that have yet to be cleaned up – will continue unabated.

Just as significant as the timeline and the issue of admissibility, Allain would specifically block DNR, in its formation of a remediation plan, from granting any exceptions to environmental regulations unless the exception has been approved by all relevant executive authorities, which could include the commissioner of agriculture, the secretary of DNR, the secretary of wildlife and fisheries, the secretary of environmental quality, the secretary of health and hospitals, and chairman of the Coastal Protection and Restoration Authority.

Faircloth said the additional safeguards address his clients’ concerns about DNR low-balling a regulatory cleanup and adversely affecting a jury’s consideration of damages.

Vitter said widening the process to so many agencies “makes producing a credible and admissible clean-up plan nearly impossible.”

Vitter, who has commented on statehouse affairs with increasing frequency in recent years, has attracted the spotlight in the dispute both by attacking plaintiffs attorneys and accusing Gov. Bobby Jindal of shilling for them by not actively attempting to force a resolution. Jindal, who has major campaign contributors on both sides of the issue, has said he wants a bill that allows faster cleanups and protects independent energy firms.

The Allain bill now moves to the Senate floor. Abramson’s bill has yet to be assigned to a Senate committee. As the Thursday vote suggests, the Natural Resources Committee is the friendliest venue for landowners. The Judiciary Committee that handles civil law matters is the friendlier venue for the industry.

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Legislation promoted by the oil and gas industry as a way to get old polluted exploration and production sites cleaned up was approved Wednesday by the state House of Representatives.

With an 82-16 vote, the House sent HB618 by Rep. Neil Abramson, D-New Orleans, to the Senate for debate.

Abramson says the purpose of bill is so “oil and gas companies can admit fault and go out there and clean it up as soon as possible.”

The bill says that if an oil or gas company involved in a “legacy lawsuit” — civil action sought by a landowner to get old pollution cleaned up — admits liability for the pollution, the Department of Natural Resources is to draw up a cleanup plan and submit it to a judge for approval.

Opponents of the measure say that’s not likely to happen because most of these sites have been there for years and no one has admitted responsibility. Many of them have been worked by multiple companies and determining the responsible party is often difficult, so all of the companies that worked the sites are sued.

The opponents are concerned that the bill is designed to slow down lawsuits that have been filed to clean up the sites.

“If DNR is slower than the civil litigation, this in no way delays civil litigation going to court,” Abramson said. “If one party admits responsibility, it starts the process.”

“Have many oil companies ever admitted responsibility in this state?” asked Rep. Jack Montoucet, D-Scott.

When Abramson said he couldn’t answer the question, Montoucet said, “I have never experienced an oil company stepping up to the plate and saying ‘we’re going to clean it up.’”

Supporters of the measure, including Rep. Jeff Thompson, R-Shreveport, pointed out that the responsible party would have to pay for DNR drawing up the cleanup plan, for all court costs — including landowners’ costs — and for the cleanup.

Rep. John Bel Edwards, D-Amite, pointed out that the standard of cleanup required by DNR is much lower than what’s in the contract landowners sign when they allow drilling on their property.

Abramson said that can be addressed in the civil suit.

Edwards said a provision in the bill that says the cleanup plan proposed DNR must be admitted as evidence in the civil suit could influence a jury into thinking the site is being cleaned up when it’s not being done at the level the oil or gas company pledged to the landowner.

The DNR standard is that vegetation could survive on the site, testimony in committee showed.

An attempt by Rep. Jay Morris, R-Monroe, to get the House to make the bill apply only to future lawsuits filed to get sites cleaned up was rejected 83-13. Morris said that’s likely to be the way courts interpret the measure, anyway, because it makes a substantive change in law.

Rep. Jim Morris, R-Oil City, said the amendment would “give me, as an independent oil and gas operator, no opportunity to get out from under that lawsuit.”

U.S. Sen. David Vitter, who has weighed in on several issues during the legislative session, said he urges Gov. Bobby Jindal to “please support this solution and call on your Senate leadership to pass the Abramson bill there. Don’t allow them to do the trial lawyers’ dirty work by running out the session clock or, worse yet, by passing other provisions that actually expand the lawsuit bonanza.”

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The Louisiana House of Representatives voted overwhelmingly Wednesday for changes to lawsuit rules sought by oil and gas producers who say they are victims of overly litigious property owners seeking damages for environmental effects of energy exploration on leased land. Despite an 83-18 vote, House Bill 618 by Rep. Neil Abramson, D-New Orleans, faces an uncertain path as it moves to the Senate amid continued wrangling, with the energy sector and business lobby on one side and major landowners and their attorneys on the other.

The dispute marks the latest in a decade’s worth of legislative attempts to settle the framework for so-called legacy lawsuits.

Abramson’s bill would have the state Department of Natural Resources step in to develop restoration plans whenever an energy firm claims responsibility for certain damages caused by exploration and production. That mitigation plan, including the cost, would be admitted as evidence in any subsequent civil lawsuit filed by the landowners who leased their property to an energy firm.

That represents a significant shift from existing law, which leaves it to a jury in district court to decide responsibility for what are called regulatory damages (effects, such as open waste pits, that are subject to state environmental regulations) and private damages, which refer to claims that fall outside state environmental regulations.

Private damages might include crop damage or lost economic opportunity attributed to the environmental damage. Only after a settlement or verdict in such a case do state regulators step in and help develop a mitigation plan for the regulatory damages. Even then, final approval for such a plan rests with the judge.

Lawyers for landowners have said throughout the session, as did a handful of attorneys in the House on Wednesday, that involving the state before litigation begins risks prejudicing a jury as it considers the merits of private damages that go beyond considerations subject to state regulation. They also say that Abramson’s industry-backed approach shifts primary jurisdiction.

Abramson said he simply wants to increase the frequency and speed of cleanups. Too many old oilfields, he said, sit idle through protracted litigation. Before the final vote, Abramson won approval for an amendment that makes the admissibility of the cleanup plan conform to state rules of civil procedure on expert witnesses. Authorities from the state regulatory agency would be expected to meet that burden, but Abramson said it adds another assurance of fairness.

He dismissed concerns about inappropriately influencing a jury. He noted that plaintiffs and defendants are always free to cross-examine expert witnesses and bring in their own witnesses to question evidence. As for landowner concerns that DNR is too close to the industry, he said that could just as easily switch over time, depending on who occupies the governor’s chair and the Natural Resources secretary’s office.

Abramson said he is willing to consider amendments in the Senate that might add specific jury instructions, with trial court judges charged with explaining the distinction between regulatory damages involved in a state-approved cleanup plan and private damages that are beyond the scope of state interest.

The dispute has pitted Gov. Bobby Jindal against U.S. Sen. David Vitter. Jindal, whose former executive counsel, Jimmy Faircloth, represents some of the leading landowners in the matter, has tasked DNR Secretary Scott Angelle with attempting to craft a compromise. Vitter has accused Jindal of coddling plaintiffs’ lawyers at the expense of an industry responsible for tens of thousands of jobs in the state.

Abramson said no one from the Jindal administration has approached him about his bill.

A key question in the remaining weeks of the session is which Senate committee will hear the measure.

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The Louisiana House spent more than an hour Wednesday debating legislation that would increase the state Department of Natural Resources’ involvement in what are known as “legacy lawsuits.”

House Bill 618 cleared the House on an 82-19 vote, making it the first in a chain of legacy lawsuit bills to advance from a chamber.

The bill’s sponsor, state Rep. Neil Abramson, said he is open to suggestions on how to resolve disagreements on the proposal.

“I will commit to you this is not the end. It’s either the beginning or the middle,” said Abramson, D-New Orleans.

Abramson made a tweak to the bill to attempt to appease concerns that the state will develop questionable cleanup plans.

The bills are pitting private landowners against the oil and gas industry. The proposals also are leading to bruised feelings.

At issue is how to handle litigation stemming from the contamination of land by oil and gas drilling. The legal activity is referred to as legacy lawsuits because they involve damage caused by energy exploration decades ago. Oil companies blame the lawsuits for diminishing oil and gas activity in Louisiana.

HB618, which is backed by oil companies, would allow oilfield operators to admit responsibility for cleanup without admitting to other allegations. The state would then decide how to clean up the environmental damage.

Proponents of the measure contend it would speed up the remediation of the damage by freeing it from other legal issues that would be litigated in court. Critics contend giving primary jurisdiction to DNR would give oil and gas companies an upper hand in that litigation.

Abramson insisted that he is simply setting a framework for oil and gas companies to admit liability.

“Admit responsibility when you should admit responsibility. Immediately go out and clean up … It does not in any way affect civil litigation,” he said.

State Rep. John Bel Edwards, D-Amite, said the bill would take away some of a court’s discretion.

State Rep. Jack Montoucet, D-Crowley, said he does not want his farmers dictated to on what to do with their land by a state agency.

He said the head of DNR is appointed by the governor, which gives him concerns about the agency bending to political manipulation by the oil and gas companies.

“Do you really think your bill is going to make them step up to the plate?” Montoucet asked.

“I hope so,” Abramson said.

State Rep. Jay Morris, R-Monroe, tried to amend the bill to ensure it could not apply retroactively to existing lawsuits.

State Rep. Gordon Dove, R-Houma, accused Morris of trying to gut Abramson’s bill.

Abramson also objected, saying he did not understand the reason for the amendment.

The amendment failed with 13 voting for it and 83 voting against it.

During debate on the bill, references were made to the controversy swirling around it.

In addition to being a legislator, Abramson is an attorney who defends oil and gas companies in legacy lawsuits.

Pineville attorney Jimmy Faircloth, who represents some of the state’s largest private landowners, alerted Abramson that he could be accused of having a conflict of interest. Abramson characterized the advice as intimidation.

Another lawyer said he planned to file an ethics complaint against Abramson.

After HB618 cleared the House, Faircloth said his objection to the legislation is that it would give new authority to DNR’s Office of Conservation to grant exceptions to regulatory standards.

“I have no objection to the process described under the bill. My concern is the bill may allow for the lowering of pollution standards,” he said.

original article

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State legislation dealing with lawsuits over old oil and gas exploration and pollution is either aimed at speeding up the process of getting sites cleaned up or at giving producers a way to get around current law, depending on which side of the dispute you ask.

The oil and gas industry, which was instrumental in crafting the law that is currently on the books, is pushing a process that would have courts refer to the Louisiana Department of Natural Resources cases that involve companies who admit negligence so a remediation plan can be developed.

Representatives of landowners say the current law approved six years ago, which was authored by Sen. Robert Adley, R-Benton, and backed by industry, after several years of court challenges is proving to be effective and doesn’t need to be changed. It’s actually been in place only three years, they said.

Disposal pits

At issue are disposal pits that contain massive amounts of salt and some hazardous material, mercury in the soil from gauges that measured flow and abandoned equipment like storage tanks, old pumps and rusty pipes that run across the property of landowners who want it cleaned up.

House Bill 618 by Rep. Neil Abramson, D-New Orleans, is headed to the House floor for debate Wednesday while Senate Bill 528 by Sen. Gerald Long, R-Winnfield, and Senate Bill 731 by Sen. Bret Allain, R-Franklin, are to be heard in Senate Natural Resources possibly next week.

Because Abramson handles such “legacy” lawsuits, opponents of his bill have filed a complaint with the state Ethics Board alleging that his handling the bill violates the state ethics law.

At a Monday hearing to familiarize senators with the situation, Louisiana Oil and Gas Association Vice President Gifford Briggs said the industry has been working on the new legislation for nine months.

He said it has three primary goals: getting companies to admit responsibility for violating regulations for waste disposal and site cleanups, getting “an open, fair and transparent hearing” and to have the Department of Natural Resources develop a cleanup plan that a court can approve.

“The bill doesn’t establish primary jurisdiction in the Department of Natural Resources,” Briggs said, because a court would decide whether the plan is adequate.

Opponents of the proposals say that’s being done under the current law when companies admit wrongdoing.

Jimmy Faircloth, representing Roy O. Martin Cos. of Alexandria, Weyerhauser and the Louisiana Landowners Association, said he’s still trying to figure out “what’s the real itch that we can scratch.”

Compromise sought

He said there’s a way to reach a compromise that “protects public health and gives independent producers the protection they deserve” if the proponents want to cooperate.

Scott Sinclair, president of Tensas Delta Exploration Co. of Shreveport, said legacy lawsuits have crippled his company’s operations. He said his company is being sued over sites that it leased to other producers and as of last week, a fifth lawsuit was filed.

One the lawsuits sought $133 million but an assessment of the cleanup shows the cost would be $500,000, he said, and lawsuits have stopped exploration on 126,000 acres of property the company owns in Catahoula and Tensas parishes.

Sherwood Gagliano, an environmental scientist who has been involved in several lawsuits, showed the committee slides of large areas of Cameron and Calcasieu parishes that are barren because of salt that escaped from disposal pits.

He called it “a salt desert.”

Some sites have been cleaned up using a Department of Natural Resources standard that calls for digging out waste and filling the hole with usable soil. The standard calls for plant life to survive.

Allain said he knows of sites that have been cleaned up to Department of Natural Resource standards where nothing will grow.

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Baton Rouge attorney Don Carmouche has filed an ethics violation complaint against a New Orleans lawmaker who’s backing an oil and gas legacy lawsuit reform bill . The move comes just weeks after Carmouche publicized an effort to depose a Louisiana State University researcher over a study linking state oil and gas environmental lawsuits to economic loss.

Carmouche filed the complaint against state Rep. Neil Abramson after today’s House Civil Law Committee meeting, during which a bill was approved that changes the way courts handle environmental lawsuits.

Legacy lawsuits allow landowners to sue oil companies to recover the costs of cleaning up after oil and gas activity.

Abramson chairs the Civil Law Committee and is a partner at Liskow and Lewis in New Orleans, which defends a large number of energy clients.

The complaint, filed with the Louisiana Ethics Administration Program, claims that Abramson had a financial incentive to pass the bill, which landowners say will benefit oil and gas interests at the expense of landowners.

Carmouche represents landowners who claim their land has been polluted by drilling.

Oil and gas lobbyists have ramped up calls for more controls on the lawsuits in recent months, claiming that the number of cases and million-dollar award amounts are staunching drilling investment.

Louisiana Department of Natural Resources records show an average of 30 legacy suits have been filed per year over the past eight years, up from seven in 2003. The DNR started monitoring environmental remediation tied to legacy lawsuits in 2006.

Industry-backed proposals would allow oil and gas companies to admit responsibility for cleanup plans outlined by state regulators without having to admit to responsibility for additional private claims in court.

Abramson told Legal Newsline that the ethics complaint is the opposition’s attempt to manipulate media sources to put pressure on legislators.

In March, Carmouche went public with plans to depose David Dismukes, associate director of the LSU Center for Energy Studies and author of a February study that linked legacy suits to $6.8 million in lost state revenue over the last eight years.

Carmouche intends to question Dismukes about the funding and the accuracy of the data behind the study.

original article

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Legislation dealing with lawsuits over old oil and gas exploration and pollution is either aimed at speeding up the process of getting sites cleaned up or at giving producers a way to get around current law, depending on which side of the dispute you ask.

The oil and gas industry, which was instrumental in crafting the law that now is on the books, is pushing a process that would have courts refer to the Department of Natural Resources cases that involve companies that admit negligence so a remediation plan can be developed.

Representatives of landowners say the current law approved six years ago, which was authored by Sen. Robert Adley, R-Benton, and backed by industry, after several years of court challenges is proving to be effective and doesn’t need to be changed. It’s actually only been in place three years, they said.

At issue are disposal pits that contain massive amount of salt and some hazardous materials, mercury in the soil from gauges that measured flow and abandoned equipment like storage tanks, old pumps and rusty pipes that run across the property of landowners who want it cleaned up.

HB618 by Rep. Neil Abramson, D-New Orleans, is headed to the House floor for debate Wednesday while SB528 by Sen. Gerald Long, R-Winnfield, and SB731 by Sen. Bret Allain, R-Franklin, are to be heard in Senate Natural Resources possibly next week.

Because Abramson handles legacy lawsuits, opponents of his bill have filed a complaint with the state Ethics Board alleging that his handling the bill violates the state ethics law.

At a Monday hearing to familiarize senators with the situation, Louisiana Oil and Gas Association Vice President Gifford Briggs said the industry has been working on the new legislation for nine months.

He said it has three primary goals: getting companies to admit responsibility for violating regulations for waste disposal and site cleanups, getting “an open, fair and transparent hearing” and to have DNR develop a cleanup plan that a court can approve.

“The bill doesn’t establish primary jurisdiction in the Department of Natural Resources,” Briggs said, because a court would decide whether the plan is adequate.

Opponents of the proposals say that’s being done under the current law when companies admit wrongdoing.

Jimmy Faircloth, representing Roy O. Martin companies, Weyerhauser and the Louisiana Landowners Association, said he hopes to figure out “what’s the real itch that we can scratch.”

He said there’s a way to reach a compromise that “protects public health and gives independent producers the protection they deserve” if the proponents want to cooperate.

Scott Sinclair, president of Tensas Delta Exploration Co. of Shreveport, said legacy lawsuits have crippled his company’s operations. He said his company is being sued over sites that it leased out to other producers and as of last week, a fifth lawsuit was filed.

One of the lawsuits sought $133 million, but an assessment of the cleanup shows the cost would be $500,000, he said, and lawsuits have stopped exploration on 126,000 acres of property the company owns in Catahoula and Tensas parishes.

Sherwood Gagliano, an environmental scientist who has been involved in several lawsuits, showed the committee slides of large areas of Cameron and Calcasieu parishes that are barren because of salt that escaped from disposal pits.

He called it “a salt desert.”

Some sites have been cleaned up using a DNR standard that calls for digging out waste and filling the hole with usable soil. The standard calls for plant life to survive.

Allain said he knows of sites that have been cleaned up to DNR standards where nothing will grow.

original article