Yesterday we had a post here at The Hayride referencing Friday’s Wall Street Journal article on the cabal of trial lawyers working with Louisiana Gov. John Bel Edwards to sue the oil and gas industry for its supposed role in destroying the state’s coastline – a post which was merely the latest in a long line of coverage we’ve devoted to that issue.
We think the coastal lawsuit issue might be the single most destructive thing going where it comes to Louisiana’s economy, in that the coastal lawsuits are (1) of such dubious legal and logical value (clearly, the main cause of coastal wetlands loss in Louisiana is the fact the U.S. Army Corps of Engineers leveed the Mississippi River to its mouth 100 years ago, and in doing so deprived the wetlands of the sediment they would be deposited each spring), (2) so obvious a shakedown effort seeking settlements from oil companies – communications from the governor’s office serve as a dead giveaway to that effect even if it can’t be easily deduced and (3) so effective in driving oil and gas out of the state. Less than three years from the start of the coastal lawsuit effort in earnest, when Edwards assembled his cabal of legal eagles to induce coastal parishes and municipalities to join those lawsuits, South Louisiana has seen oil and gas exploration drop off to practically nothing.
Now, there are other reasons besides the coastal lawsuits for Louisiana to wither and die as an oil and gas exploration state. But if you talk to people in that industry, they will tell you those lawsuits have had a devastating effect on investment in new wells along the coast. And there is a shale formation along Louisiana’s coastline which should be drawing that investment – but oil and gas people are pretty adamant that nothing will be done until those lawsuits go away.
We’ve written this several times, particularly when national publications have raised the issue as the Washington Examiner did earlier this year. Yesterday we went back to that well since the Wall Street Journal offered a bit of a fresh take on it – namely, that Edwards is trying to fill the state’s budget hole by trying to drum up settlements from the oil companies and that the law firm of Talbot, Carmouche & Marcello stands to gain big bucks if those suits hit paydirt – which would be a return on a big investment it has made spending money on elections in recent years.
Representations we made in the post independent from those the Wall Street Journal had written are the following.
First, we boiled down WSJ’s intimations about political campaigns and influence by opining that John Carmouche, the principal at Talbot, Carmouche & Marcello has “spent the last few years buying elections in Louisiana and without a doubt played a role in buying Edwards’ election in 2015.” That is a quite commonly held perception throughout the state and hardly one which lacks a foundation. Carmouche and his law firm, not to mention its partners and associates and their families, have spent more than $3.5 million on campaign contributions to gubernatorial, legislative, judicial and local political races in recent years – a staggering sum of money from one law firm. The firm bankrolled two Super PAC’s – Citizens For Clean Water And Land PAC in 2012 and Louisiana Water Coalition PAC in 2015 – to the tune of over $800,000 in the case of the former and well over a million dollars in the latter. The Water Coalition PAC, which was formed and operated for the specific purpose of defeating David Vitter in the 2015 gubernatorial election, covered the airwaves with attack ads against Vitter like this one…
The reason for the vitriolic campaign ads was not indignation over Vitter’s moral failings. It was that Vitter had been outspoken about the need for tort reform in Louisiana, and in particular to do something about not only the coastal lawsuits but their predecessor, “legacy lawsuits” – a specialty in tort law fairly limited to Louisiana in which millions of dollars in judgements came to landowners for environmental damage done by oil drilling long ago without a requirement the money actually be used to remediate that damage.
Guess who’s recognized as the top dog when it comes to those legacy lawsuits? Why, Talbot, Carmouche & Marcello of course.
Funny how none of that ever made it into their anti-Vitter attack ads. It’s almost like there was a hidden agenda behind those ads.
From a public policy standpoint it’s quite reasonable to see all that campaign money as shady and very destructive. Here are three graphs produced by economist Loren Scott, an emeritus professor at LSU, showing employment numbers in the Houma, Lafayette and Shreveport markets at present – they look pretty clearly to us as an indication oil and gas has taken it on the chin in Louisiana given those are the three markets in the state most dependent on that industry for economic activity…
The oil and gas industry nationwide is booming at a level unmatched in the recent past and yet the economies of Louisiana’s three most oil-and-gas-dependent markets are tanking, and meanwhile the governor and his connected pals are out pushing dubious lawsuits against oil and gas companies. Perhaps correlation isn’t causation, but when the oil and gas people are connecting the dots and screaming as loudly as they can it seems pretty clear to us there is cause and effect.
So we said it. We also said the coastal lawsuits are intended to generate settlements rather than court cases, which seems pretty obvious. After all, the first of the coastal lawsuits was the Southeast Louisiana Flood Protection Authority – East case which was filed in federal court in New Orleans several years ago. That case was dismissed. It was appealed to the Fifth Circuit and the dismissal was upheld. Then it was appealed to the Supreme Court and writs were denied. The upshot was that nowhere along the chain at the federal level was any merit seen to the theory the oil companies caused the state’s coastal loss. That would be a precedent which would augur poorly for a better result in state courts – and therefore it’s a good assumption the plaintiffs and prospective plaintiffs would hope to make the oil companies agree to a settlement.
Except it’s not an assumption. The Wall Street Journal piece on Friday quotes a letter from Edwards spelling out the intention to generate those settlements…
“We are struggling to pay for our state’s Master Plan to restore the coast,” the governor wrote in a May 19 letter to the presidents of Louisiana’s two largest oil and gas trade associations, which between them represent more than 100 local companies. “I intend to be involved in all facets of the state’s coastal restoration efforts—including those efforts to secure funding for the Master Plan. . . . At this point, we have two choices—work together toward an amicable solution or spend years in litigation. There should be no doubt that it is in the best interests of Louisiana and the industry to choose the former option.”
The Louisiana Oil and Gas Association (LOGA) is one of the two industry groups that letter went out to. LOGA’s president Don Briggs has a weekly column here at the Hayride and Briggs talks about this issue countless times expressing that these lawsuits are devastating to the industry in Louisiana. He’s been even more vociferous about them since receiving that letter last year – see examples here and here.
The effect of all of this is, as we noted, to give Louisiana a “black eye as a terrible place to do business because it’s run by crooked politicians and greedy trial lawyers.” That’s not some cockeyed opinion of ours, it’s the judgement of the American Tort Reform Association, which labeled the state as the eighth-worst Judicial Hellhole in the country for 2017-18.
So that’s our argument after following this issue for several years. It’s based in public policy and the facts as we see them.
And it got us this via e-mail yesterday…
Scott, I read your article that you published about me and noticed not just exaggerations of the truth, but bold face lies. I am sure you have been informed of the law in telling the truth in publications. I can sit down with you and direct your attention to every lie in your article or you can just pull down the article in public and explain that you are pulling down because you were informed of somethings that might not be true.
Please let me know if you are not willing to do anything. I will file the appropriate papers in the court of law to protect my rights.
We took that as an attempt at intimidation, so I thought I’d pop a quick reaction to it on Facebook…
John Carmouche is now threatening to sue me.
It’s not enough that he’s corrupting the legal system and driving the oil and gas business out of the state, he’s now attempting to intimidate the only media entity in Louisiana wiling to call him out for what he’s doing.
This is an attempt at tyranny.
I stand by that characterization, because lawfare – which is what threatening to sue somebody for expressing a differing view on matters of public interest than you hold is a pretty textbook example of – is an attempt at tyranny. It’s an attempt at silencing differing views, which is a very hostile, ugly thing in a democracy.
And there are lots of people who believe lawyers pouring big bucks into judicial elections is corrosive. We share that belief. The campaign finance records show Carmouche is one of, if not the most, frequent practitioners of that craft in Louisiana. We think that would make him a corrupter of the legal system here.
And here’s what came immediately after into the email inbox, from Carmouche…
Scott, my friend sent me your Facebook post. Why don’t you post my emails instead of posting your lies? I have given you a chance to learn the truth rather than violate the laws you must abide by as a journalist . You have chosen to not learn the truth and have chosen to violate the laws of Louisiana just like the oil companies. I am glad you have given me no choice.
Well, he asked that his e-mails be published, and we did. So he can’t say we haven’t given him anything.
If Carmouche is a man of his word he’ll follow through on his threats and sue us for having an opinion critical of his political activities. It’s a fairly frivolous lawsuit, to be sure, and one which is specifically prohibited by Louisiana’s anti-SLAPP statute (LA Code Civ Pro 971), which reads, in pertinent part…
Art. 971. Special motion to strike
A.(1) A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established a probability of success on the claim.
(2) In making its determination, the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.
(3) If the court determines that the plaintiff has established a probability of success on the claim, that determination shall be admissible in evidence at any later stage of the proceeding.
And in the definitions…
F. As used in this Article, the following terms shall have the meanings ascribed to them below, unless the context clearly indicates otherwise:
(1) “Act in furtherance of a person’s right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue” includes but is not limited to:
(a) Any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law.
(b) Any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official body authorized by law.
(c) Any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest.
(d) Any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.
So if Carmouche wants to sue us, let him. It’s obviously what he does when he’s not writing campaign checks, but the law isn’t on his side here. And we have lawyers, too.