Guest Column by Senator Sharon Hewitt: The Advocate
Louisianans across the state wake up every morning to go to work and do their jobs. Why, then, isn’t the Louisiana Department of Natural Resources doing its job in Baton Rouge to ensure that our coast and other natural resources are being protected?
More than three years ago, private lawyers working on behalf of Jefferson and Plaquemines parishes filed lawsuits claiming some oil and gas companies violated the terms of their state-issued coastal use permits under the State and Local Coastal Resources Management Act of 1978. The suits demand billions of dollars from companies to pay for alleged violations of permits that are issued, regulated and enforced by DNR. The parishes’ attorneys say they have evidence of widespread permit violations, which they claim contributed to coastal erosion in South Louisiana.
Since 2013, similar lawsuits have been filed on behalf of three other parishes—Cameron, Vermilion and St. Bernard. Local officials and district attorneys in two other parishes—Lafourche and Iberia— have also “lawyered up” and are considering filing suits.
After taking office earlier this year, Governor John Bel Edwards directed DNR to intervene as a third-party plaintiff in the parish lawsuits. Last month, Gov. Edwards also sent letters to local officials across the coast encouraging them to hire more lawyers to file more lawsuits. If they choose not to do so, the governor said he will direct DNR to file lawsuits on their behalf.
DNR’s new role as a plaintiff in this litigation is remarkable because DNR issued the permits over which they are now suing. They have significant enforcement powers to ensure that all oil and gas activities conducted in Louisiana are done so in accordance with state law. They also have an obligation to protect our natural resources. This is the very reason DNR exists. Yet, DNR officials recently testified at a committee meeting that they have not conducted one single independent investigation to identify violations or enforce compliance of the terms of coastal use permits that are now at the center of litigation.
Under questioning from lawmakers, DNR officials offered a variety of explanations. First, they suggested the department has suffered from a “regulatory blind spot” that has handicapped officials managing the department over the last 36 years. This “blind spot” was cured only recently when they joined the parishes’ litigation and reviewed their research. Are department officials really suggesting the parishes and their private lawyers have better abilities to monitor and regulate state-issued permits than they do? Given that DNR operates on an annual budget of over $64 million, let’s hope that is not the case.
In another remarkable statement, DNR officials claimed they don’t have the resources to investigate the alleged permit violations, enforce compliance or even attempt to identify if there has been unpermitted activity in the coastal zone, as is alleged in the lawsuits. They offered this explanation in spite of state laws that require all of the department’s enforcement costs to be paid by the responsible party. In other words, if DNR determines a company has violated the terms of its permit, state law requires that company to pay all the fines and penalties levied by the department. State law also enables DNR to force companies to pay for compensatory mitigation and restoration projects—no matter how much it costs. And state law requires companies to pay the department for every dime of enforcement costs incurred.
The bottom line is the state has all the information, resources, and authority it needs to act. Instead, Gov. Edwards and DNR are choosing endless litigation over enforcement action claiming that lawsuits are more efficient and convenient That’s disappointing.
Lawsuits should not be a first step, but a last resort when all other remedies have been exhausted. In fact, a state district court judge recently dismissed one of the first coastal lawsuits filed by Jefferson Parish for this very reason. In his ruling, 24thJudicial District Court Judge Stephen Enright found “in the absence of an exhaustion of administrative remedies, it is yet to be determined whether civil damages exist.” The Court further held that Jefferson Parish and DNR should pursue and exhaust the administrative remedy process prior to suing in court for civil damages.
Rather than following the judge’s ruling and taking administrative enforcement action, Gov. Edwards and DNR requested another court hearing. This is the wrong approach.
The department has a rigorous administrative process in place for enforcing the terms of state-issued permits. Any issues or concerns regarding permit compliance can be addressed by DNR now without the excessive delays and exorbitant legal costs that come along with litigation. There is no question that using existing state regulations is the most efficient and effective way to protect Louisiana’s coast and our vast natural resources.
The path forward could not be clearer. DNR needs to do its job.
Senator Sharon Hewitt
State Sen. Sharon Hewitt, R-Slidell, is a member of the Senate Committee on Environmental Quality and the Select Committee on Coastal Restoration and Flood Control.