Why Litigation is a Tool in Our Tool Box

To protect the wetlands of the Gulf, GRN uses every tool in our tool box. (c) Julie Dermansky for GRN.You may have noticed recent mention in your local newspaper, GRN’s Gulf Waves, Gulf Tides or GRN blogs of GRN suits against state and federal agencies, municipal sewage treatment plants or industries. Our willingness to sue should be no surprise to anyone who knows the organization. The GRN began as a project of Earthjustice Legal Defense Fund in response to a need identified by groups from across the Gulf – the need for an organization advocating for the health of the Gulf. As a project of a nonprofit law firm and an advocate for the Gulf it was logical that one weapon in our advocacy tool box was, and continues to be litigation.That is not to say that litigation is our first choice. The GRN’s staff monitors industry and state and federal agency compliance with environmental laws, such as the Clean Water Act, Endangered Species Act and Marine Mammal Protection Act. We monitor permits issued for the destruction of wetlands and discharge of pollution under the Clean Water Act or development that may harm Gulf coast endangered species. Sadly, we find that federal and state agencies are often hesitant to force business and industry to fully comply with the law – not surprising given the political pressure on these agencies. In fact, it was recognition of the need to have citizens as the ultimate guardians of the nation’s environmental resources that led Congress, when enacting the Clean Water Act, Endangered Species Act, and other environmental laws, to include “citizen suit” provisions in those laws. When the GRN finds that a permit fails to comply with the law or that an activity violates the law, we first submit formal comments and attempt to meet with agency staff to discuss our concerns in an effort to get the agency or the private entity to voluntarily comply with the law. Many times we are successful, but far too many times our efforts fail. When this happens we cannot simply allow the violation of the law to continue. Legally, to stop the violation, and protect the environment, we must challenge the permit or activity in court. Take for example a recent suit filed by GRN and Sierra Club in Mississippi. In December 2011, the Mississippi Development Authority (MDA) – in the final days of Mississippi Gov. Haley Barbour’s administration — offered up rules for leasing state waters for oil and gas exploration. This highly controversial offshore drilling issue had been on hold for years after Hurricane Katrina and after serious opposition from Gulf Coast residents and businesses that depend on tourism. Then came the massive BP drilling disaster that severely impacted the Gulf Coast economy, which has made many increasingly wary of oil and gas drilling off Mississippi’s coast, particularly near Gulf barrier islands – major tourist attractions. Yet, the rules proposed in December are set to take effect this month – less than 3 months later.It has become clear since December that the MDA did not coordinate its activities with the Department of Marine Resources and the Department of Environmental Quality – the two agencies responsible for protection of Mississippi’s environment, and the rules defer most real “regulation” of oil and gas activity to case by case wording in leases sold to the industry. In short, rather than go through a comprehensive process that would allow a full airing of public concerns and careful consideration of appropriate restrictions and protections on oil and gas activities in the offshore waters belonging to the state, the MDA rapidly moved forward with implementation of the rules.The GRN and its partners attempted to discuss our concerns with the MDA and with the Governor’s office, without success. We attended the single hearing held to provide formal comment on the proposal – again without effect. Feeling we had no alternative, on March 15, 2012 GRN and the Sierra Club sued to block MDA’s new regulations for offshore drilling, contending that MDA is rushing into the process and such a dramatic step requires much more deliberation and public comment.Both of the State’s major papers agree with us. In fact, the Editors of the Clarion Ledger wrote:Regardless of what one thinks of offshore drilling and production, the groups have a solid point . . . Opponents fear rigs will be in sight of Mississippi’s pristine barrier islands will be harmful tourism and be a danger to the environment. Gov. Phil Bryant . . . sought to assure Gulf Coast residents and officials last week that the steps to drill would not be harmful and that the state would not want to take any steps to hurt tourism. If that is the case, it would be best to slow down this process and continue to develop impact information and, most important, hear from Gulf Coast residents and businesses about whether they want this.Similarly, the Biloxi Sun Herald’s Editorial Board in responding to the suit wrote:Now Bryant should do what he should have done upon taking office in January: put a halt to MDA’s slapdash approach to leasing state waters for oil and gas exploration and extraction. The plaintiffs (GRN and Sierra Club) are right when they contend that the process is moving too fast and hasn’t been properly studied. MDA has done a terrible job of communicating with interested parties along the Coast about what approach it would take in granting oil and gas leases.Although it would be great if the GRN never had to sue again, it is inevitable that we will. It is, far too often, the only way to ensure full compliance with environmental laws and protection of the Gulf’s natural resources upon which we, as residents of the Gulf, depend for our economy and our cultures.Cyn Sarthou is GRN’s Executive Director

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