Waltzer & Wiygul Law Firm

By: | Associated Press
Published: February 15, 2012 Updated: February 15, 2012 – 10:26 AM

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GULFPORT, Miss. (AP) The Sierra Club and other members of the 12 Miles South Coalition say Mississippi is rushing toward drilling in state waters without addressing concerns about tourism, the environment or economics.

The group tells The Sun Herald (http://bit.ly/yiYfS2) that the Mississippi Development Authority appears to be using questionable numbers touting the economic benefits from offshore drilling for natural gas, the price and demand of which is at an historic low.

“There’s no reason to be in such a rush that you don’t get the rules right,” said Jeffrey Bounds, an engineer working with the 12 Miles South Coalition, which has fought offshore drilling in Mississippi for years.

“Once the state issues leases, it’s too late to go back and get the rules right,” Bounds said.

Earlier this month, the National Park Service said allowing drilling within one mile of Horn and Petit Bois islands would spoil the islands’ wilderness character. Casino operators said while they’re not opposed to drilling, they don’t want to see tourist areas overrun by industrial equipment, boats and workers.

The statements came during MDA’s a 43-day public comment period and in public hearings on its draft of offshore leasing and seismic surveying rules.

The coalition said MDA and Gov. Phil Bryant haven’t addressed key risks associated with drilling, including subsidence and loss of the barrier islands, contamination of the Mississippi Sound and economic losses due to damage of the Coast tourism industry. And, they said, state officials don’t appear to be sincerely interested in public input or open dialogue about drilling.

“There’s a national park (Gulf Islands National Seashore) out there for gosh sakes,” said 12 Miles member Louie Miller, director of the state Sierra Club. “That’s like Yosemite. That’s like the Grand Canyon a national treasure. We can’t make sure they’re protected?”

Bryant’s spokesman Mick Bullock issued a statement: “Gov. Bryant is moving carefully through the process to implement this nearly eight-year-old law that the Legislature passed in 2004. Although required to take public comments for a minimum of 25 days, MDA has kept the public comment period open for 43 days to allow more time for input. He will continue to work with MDA, DMR and DEQ as they move forward in finalizing these rules and regulations.”

Bounds said that “while Alabama is not a paragon, there is wide recognition that they have been fairly environmentally sensitive … They did their homework before they allowed it. MDA has not done its homework.”

Bounds said Alabama, while allowing drilling in some areas, has protected its tourist areas from drilling with a 15-mile “viewshed buffer” and other measures and that the state has strict rules against pollution from rigs and related industry.

Louis Skrmetta, a coalition member and owner of Ship Island Excursions, said the barrier islands draw thousands of tourists a year because of their pristine beaches and scenic views.

“The Gulf Islands is one of the few things Mississippi has to compete with West Florida and Gulf Shores,” Skrmetta said.

The casino operators recommended MDA include in its leasing- and seismic-testing rules language from a 2004 offshore oil and gas law that prohibits activity in most of the near-shore waters of the Mississippi Sound.

Many environmentalists and some coastal business leaders still oppose any offshore exploration or drilling and have said even after most of the Sound was put off limits, the barrier islands and other areas could still be harmed.

Casino operators and some other business leaders reigned in their protest when the 2004 law was written to secure protection for most near-shore water. Only two areas, on the Alabama and Louisiana lines, would allow exploration and drilling nearshore.

Opponents have said the Legislature could easily come back later and open water inside the Sound to drilling, and the Alabama-line area is near fragile habitat.

“I don’t think a high priority has been place on enforcement to date, and they don’t have the infrastructure in state agencies for enforcement,” said Robert Wiygul, an environmental attorney working with the coalition.

The 12 Miles group said MDA has placed no restriction on rig size, aesthetics “or shown in any way the attention to detail shown by Alabama in protecting its waters and tourism” and that no budget has been provided for enforcement and environmental monitoring or protection.

MDA has said offshore drilling and exploration will not harm the environment or tourism. They say the state has an estimated 350 billion cubic feet of natural gas offshore and stands to receive $250 million to $500 million over however many years it takes to pump it out.

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Information from: The Sun Herald, http://www.sunherald.com

http://www2.wsls.com/entertainment/2012/feb/15/drilling-opponents-say-miss-should-slow-down-ar-1690993/

by Amy McCullough

Published: December 15,2011
KEMPER COUNTY CLEAN COAL PLANT HEARD BEFORE STATE SUPREME COURT

JACKSON — Three Mississippi Supreme Court justices say that so far, they can’t find the evidence that state regulators used to justify their decision to allow Mississippi Power Company to build a $2.4 billion clean coal plant under construction in Kemper County. If the high court rules that the Commission is in violation of state statute requiring it to present its findings in sufficient detail, the plant could be in jeopardy.

Justices Michael K. Randolph, Jess H. Dickinson and Randy G. Pierce heard oral arguments yesterday in Sierra Club’s appeal of its case against Mississippi Power and the state Public Service Commission

Environmentalist group the Sierra Club first sued the power company and state regulators in Harrison County Chancery Court after the Mississippi Public Service Commission gave the company permission to construct the $2.4 billion plant in May 2010. The Chancery Court upheld the Commission’s decision after a February hearing.

Sierra Club calls the plant “dirty, expensive and unnecessary” and is concerned about environmental and rate impacts to customers. As with all public utility infrastructure projects, over time customers must pay for the improvements plus interest to the company.

Of the three state Public Service Commissioners, Leonard Bentz and Lynn Posey voted to approve the plant, and Brandon Presley dissented.

In April 2010, the Commission issued an order stating that the project was too risky for ratepayers but could be allowed if the company met certain financial restrictions, one of which was capping the plant’s cost at $2.4 billion.

Mississippi Power filed for a rehearing, and in May the Commission issued a second order approving the plant with eased financial restrictions — including allowing a 20 percent cost overrun for the project, thus capping its cost at $2.88 billion.

The Sierra Club says the Commission’s May decision was arbitrary and capricious. They claim Bentz and Posey “flip-flopped,” overturning the Commission’s decision through the second order without sufficient effort in the record to support it. Also, Sierra says the Commission did not comply with state statute when it failed to detail the specific evidence from the record that would support its decision to ease Kemper’s financial restrictions.

At the hearing Justice Pierce asked: “What happened between April 29 and May 26 … What additional facts were submitted during that time frame that made the Commission feel comfortable …?”

Mississippi Power’s attorney Ben Stone said Sierra Club had brought the suit against Kemper because the group is opposed to all coal generation. The Kemper project, he said, is about “the future of coal generation in the world. It’s very clean. It’s very friendly to the environment.”

Justice Dickinson said the reason the Court was there was not to determine the merits of the plant but to determine whether the Public Service Commission had met its legal obligations.

Dickinson addressed the Commission’s May decision to ease financial restrictions on the plant, saying: “So far, I don’t find anything in the Commission’s order itself and haven’t yet found in the record what would help me understand that the Commission is justified in its conclusion that this risk is balanced.”

Stone never directly answered questions regarding what evidence was used to support the May decision. Additionally, Stone said Mississippi Power does not believe that the statute requiring the Commission to expressly detail reasons for its decisions applies in this case.

The Sierra Club’s attorney, Robert Wiygul, closed by saying that since the Commission did not spell out the reasons for its May order, the justices and others were left to speculate about what specific evidence was used to support its final decision.

Justice Pierce said he was concerned about the lack of detail in the Commission’s May order. In its April order, he said, the Commission expressed concern about the high risk of the project since it would be using new technology, but the May order did not state why the Commission’s concern was abated.

Justice Randolph said his obligation was to “make sure a governmental agency charged with this responsibility doesn’t throw a Solyndra on the ratepayers of Mississippi and that we don’t see another beef plant.”

The common term “beef plant” in Mississippi refers Mississippi Beef Processors, an economic development project for which the state co-signed more than $50 million of taxpayer funds before the company went bankrupt shortly after it opened in 2004.

Justice Dickinson said Kemper was “a very important case … a complex case that affects the lives of a lot of people” and said the Court would take its time to review the 30,000-page record and possibly require additional information from parties involved.

The Court could do a number of things, including requesting additional briefs, requiring supplemental information for the record and inviting the parties back for another hearing before all nine justices – an unusual requirement. After a case is argued, the Court usually rules within a nine-month period. Various rulings are possible, including a reversal or a remand to the Public Service Commission, which could require them to provide reasons justifying the May order.

Plans for the Kemper Count coal plant include using new technology to convert low-grade, on-site Mississippi lignite coal into a gas, which can be used to produce electricity. The plant — which will produce 582 megawatts of new generation and should be operational by 2014 — should be the first commercial-scale plant in the nation to capture a majority of its carbon dioxide emissions, thus making it clean.

The Kemper plant will serve nearly 190,000 Mississippi Power customers in 23 southeastern Mississippi counties. The Commission determined in early 2010 that additional electric generation would soon be needed in the Mississippi Power service area. A power plant fueled by natural gas was discussed as an alternative to the Kemper plant. Mississippi Power argued that generation fired by natural gas — the prices for which have been historically volatile – would be more expensive than using stable, lignite coal as a fuel source. Independent Power Producers, who sell supplemental, natural-gas fired electricity to utilities, intervened in the Commission hearings and noted that natural gas forecasts predict the fuel will have low, stable costs for the next 20 years, due to a new technology called “fracking” which has resulted in new and abundant supplies of natural gas.

http://msbusiness.com/2011/12/justices-question-pscs-approval-kemper-plant/

JACKSON, Miss. — Three Mississippi Supreme Court justices asked repeatedly Wednesday where the state Public Service Commission laid out its reasoning when it modified its decision to allow the construction of a Kemper County power plant last year.

The Sierra Club is trying to get the Supreme Court to derail the $2.7 billion power plant, now under construction in Kemper County’s Liberty community. The environmental group argues the PSC broke the law by failing to lay out its reasoning clearly when it eased the financial terms under which Mississippi Power Co. could build what it calls Plant Ratcliffe.

A lawyer for Mississippi Power said the commission didn’t have to provide such reasoning, though. He said judges could find reasons to support the decision in the 30,000-plus pages of testimony and records submitted as part of the appeal.

Mississippi Power says rates will go up about 33 percent to pay for the plant. However, Sierra Club lawyer Robert Wiygul told the court Wednesday that confidential documents he has reviewed show rates would rise as much as 45 percent. The Mississippi Business Journal reported the same amount in August 2010, citing documents obtained through a public records request.

A unit of Atlanta-based Southern Co., Mississippi Power would buy lignite mined nearby, turn it into a synthetic gas, and burn the gas, capturing byproducts such as carbon dioxide and selling them. The technology is supposed to allow coal to be burned more cleanly and cut emissions of carbon dioxide, which scientists say contribute to global warming. Mississippi Power says the plant is needed to provide more electricity for its 193,000 customers scattered from Meridian to the Gulf Coast.

The Sierra Club opposes the project, saying that the technology behind the plant is unproven and that it’s undesirable under any circumstances to build new coal mines and new coal-fired power plants. The environmental group says it would be cheaper for Mississippi Power to build a natural gas plant or buy power from independent natural gas generators.

“The law requires the Public Service Commission to choose the cheapest and most reliable technology and power plant,” Louie Miller, executive director of the Mississippi Sierra Club, said at a pre-hearing news conference. “This is neither.”

The PSC originally voted in April 2010 to cap at $2.4 billion the amount that Mississippi Power could charge ratepayers for the plant. The company is also getting about $300 million in federal assistance. Commissioners also said the power company couldn’t charge ratepayers for the plant before it started operation.

Mississippi Power said it couldn’t build under those conditions and asked the PSC to reconsider. (Previously suggested most corrupt in MS) Lawyer Ben Stone said Wednesday that it needed wiggle room for cost overruns, and wanted to charge ratepayers early to cut the interest customers would pay on money borrowed for the project.

“We could not go to the financial markets without some relief in both of those areas and finance the plant,” Stone said.

If this scheme had any merit it could have found investors. With a negative credit score and historical pattern of Lignite Coal plant failure, Investors know Mississippi Power and Southern Company’s Kemper Coal Plant is a money pit with no intention of making money. It will be fined, regulated with fees, and taxed right out of any possible profits. Among other costs to run problems they will encounter. The profit comes in when MS power can charge a percent of its overall costs to the ratepayers. Criminal and truly un-American, isn’t it?

A month later, commissioners voted 2-1 to give Mississippi Power what it wanted, raising the cost cap by 20 percent, to $2.88 billion. The commission must still agree that company spending is “prudent” for it to collect any money, even below $2.4 billion. It also allowed Mississippi Power to start charging before the plant’s scheduled start in 2014. Under state law, Mississippi Power can keep the money even if the plant is never completed.

It is not prudent to charge ratepayers for an experimental CO2 capturing mechanism that fails to produce any electricity, and is founded on global warming science fraud, and a cap-and-trade system not yet in adopted.

The key issue in Wednesday’s case is not whether the plant is a good idea, but whether the PSC adequately laid out its rationale for what Miller labeled a “flip-flop” by commissioners Leonard Bentz and Lynn Posey, who voted for the amended conditions.

The Sierra Club said the PSC didn’t adequately explain. “That’s going to require some evidence you can see and really get your arms around,” Wiygul said.

He said judges shouldn’t have to pick and choose reasons from the overflow of material submitted with the appeal, and the three justices sitting Wednesday seemed sympathetic to that argument.

“I did not see and still do not find anywhere where the commission explained to the court why this was now not too risky,” said Associate Justice Randy “Bubba” Pierce. “I want to know what happened between April 29 and May 26. What additional facts were submitted to the record?”

Stone said the new facts were contained in Mississippi Power’s motion to reconsider and its post-hearing briefs. “It’s very obvious to us that all those matters are supported,” he told the justices.

More importantly, though, he said the PSC was not required to summarize its reasoning for court review. Stone said that a prior court case says that as long as the court can find the reasoning in the record leading to the decision, the court must let the PSC’s decision stand.

JEFF AMY Associated Press

http://mississippicoal.wordpress.com/tag/robert-wiygul/

By Rick Jervis, USA TODAY

NEW ORLEANS – Each day, a team of 70 lawyers gathers in a New Orleans office suite to pore over a mountain of documents, study depositions and formulate argument.

The attorneys, representing condominium owners, oyster fishermen, hoteliers, beach towns and others who claim to have been hurt by last year’s BP oil spill in the Gulf of Mexico, are gearing up for one of the biggest legal showdowns in U.S. history.

More than 120,000 claimants have signed on to the federal lawsuit against BP and other energy firms, claiming financial and personal loss after the Deepwater Horizon rig explosion. The explosion on April 20, 2010, killed 11 workers and gushed more than 155 million gallons of crude into the Gulf, making it the worst oil spill in U.S. history.

The legal proceedings, which begin in February, are expected to eventually reach the U.S. Supreme Court.

“There hasn’t been a case quite as immediately large and as complex with so many moving parts,” says James Roy, a Lafayette, La., attorney and one of the lead plaintiff attorneys.

U.S. District Judge Carl Barbier, the New Orleans federal judge overseeing the case, has set Feb. 27 as the date of the first issue to be tried: Who was most responsible for the explosion aboard the rig? BP, which leased the rig, will be a defendant along with Transocean, the rig’s owner; Halliburton, responsible for the casing cement; and other companies.

The number of claimants joining the lawsuit is nearly as many as those who have chosen to take final claims payments through a $20 billion compensation fund set up by BP.

Last Monday, more than 150 protesters marched in front of the Washington offices of the Gulf Coast Claims Facility, which is distributing the fund, calling on the group to pay all outstanding claims.

Many claimants applied for a payout rather than risk a drawn-out legal battle. Despite early concerns that lawyers for BP and other companies would drag out litigation for years, legal action for the spill is speeding through courts at an unprecedented pace, Roy says.

“This case is moving like a rocket ship,” he says. “It’s hard to imagine anything anyone can do to upset that trial date.”

At the February trial, Barbier will hear expert witnesses to determine the varying degrees of fault, Roy says. Other trials will follow, including ones to determine the environmental impact of the spill and how much companies should pay in damages.

BP officials so far have shouldered much of the blame for the spill but have repeatedly pointed to others’ involvement in the disaster. In a statement, BP said, “We are preparing to try the case scheduled to begin in February, where we will present evidence, consistent with all official investigations, that the Deepwater Horizon accident was the result of multiple causes, involving multiple parties.”

Transocean hopes to show that BP is responsible. Lou Colasuonno, a spokesman, calls the upcoming trial the “mother of all litigation” but says officials at the company are comfortable with their legal position. Halliburton declined to comment for this article.

A key question Barbier faces is whether any of the companies were “grossly negligent,” a label that could expose the companies to tens of billions of dollars in damages, says Blaine LeCesne, an associate professor at Loyola University New Orleans College of Law. Damages could potentially eclipse last decade’s massive tobacco settlements, which totaled more than $200 billion, LeCesne says.

“It’s not about whether BP is negligent. They know they’re negligent,” LeCesne says. “They’re desperately trying to avoid that ‘gross negligence’ label.”

The case is so big and includes so many parties that Barbier appointed an executive committee — led by Roy and New Orleans attorney Stephen Herman — and a steering committee of 15 lawyers to coordinate the plaintiffs’ efforts. Those attorneys, along with another 200 across the Gulf Coast, have amassed more than 226 depositions, 70 expert reports and 25 million pages of documents, he says. The more than 400 lawsuits filed against the companies after the spill have been merged into one “master suit,” Herman says.

The proceedings are moving much more quickly than those after the Exxon Valdez oil spill off Alaska in 1989, LeCesne says.

That legal wrangling stretched for nearly a decade and ended in a U.S. Supreme Court ruling slashing damages against the oil giant from $2.5 billion to $500 million, he says.

The trials also could set an important precedent for how companies compensate victims in future spills, says Robert Wiygul, a Mississippi environmental attorney representing about 1,000 claimants in the proceedings. “In 10 or 15 years, we’re going to look back at this and say, ‘Did this really work? Did we compensate people fairly?’ ” he says. “This is a real-life laboratory.”

By Rebecca Mowbray, The Times-Picayune

People who participated in BP’s Vessels of Opportunity program can now pursue claims for damage to their boats and possibly other grievances, even if they settled claims for economic losses from the oil spill with the Gulf Coast Claims Facility, according to a letter from BP. But, BP, leaseholder of the ill-fated Macondo well, also says in the letter that it reserves the right to deduct any wages that boat owners earned in the Vessels of Opportunity program from any ultimate settlements.

“The GCCF has overcompensated claimants who participated in the VoO (Vessels of Opportunity) program,” the Sept. 21 letter from BP attorney Dan Cantor to GCCF deputy administrator Jackie Zins reads. “BP reserves…the right to account…for VoO compensation that should have been but was not offset from GCCF awards.”

Steve Herman, co-lead plaintiffs attorney in the litigation over the April 2010 well blowout in the Gulf of Mexico, said in an e-mail that VoO program participants have not been overcompensated, and called the letter “a classic bait and switch” by BP.

“They went out, risked their lives and exposed their boats to oil and dispersants to help BP clean up its mess,” Herman said. “In addition, they — like other fishermen who didn’t participate in the VoO program — suffered, and continue to suffer losses from not being able to shrimp and fish.”

The question of whether or not boat owners should have their compensation from oil clean-up work deducted from any economic loss or damage settlements has been hotly contested. On one hand is the principle, reflected in the Oil Pollution Act of 1990, that workers harmed by a spill have a duty to mitigate their economic injury, meaning that if someone can reduce their economic pain by finding other work, they should. On the other hand, deducting wages for oil clean-up work would mean that displaced fishermen helped BP clean up its mess for free, and that they would be treated the same as someone who took the summer off and didn’t work at all.

In the initial weeks after the spill, BP was deducting wages earned in the oil clean-up program from payments made to commercial fishery workers who were unable to fish, catch shrimp or harvest oysters. When one of Herman’s law partners raised concerns about the practice to BP in a May 2010 letter, BP attorney A.T. Chenault responded, “Lastly, we confirm that BP will not offset payments to vessel owners or other volunteers against claims they might have.”

Herman says that statement is a pledge from BP that it won’t deduct wages earned in the VoO program from ultimate settlements, and that BP reneged on that promise in the Sept. 21 letter.

BP counters that it has been consistent in its position that wages that displaced fishers earned in cleaning up oil in summer 2010 must be deducted from any ultimate settlements, as spelled out in the Oil Pollution Act. The company wrote to Herman in August 2010, dismissing the May letter as unclear. BP said that it regretted “any miscommunication,” and that any VoO wages could be deducted from ultimate settlements.

In other correspondence with the GCCF in 2010 and 2011, BP has restated that it believes the claims facility is overpaying people. “To date, the GCCF has not offset from its damages payments amounts earned by claimants from participating in the oil spill response through the Vessels of Opportunity program. OPA requires that VoO earnings are offset from GCCF damages payments,” BP says in comments filed with the GCCF in July 2011 about its claims process.

Big money is riding on whether or not VoO compensation is ultimately deducted from settlements: BP has paid about $600 million in wages through the VoO program.

Spokesman Scott Dean said the company’s position is clear. “From the outset, BP has been committed to paying all legitimate claims. Legitimate claims do not include claims in excess of actual losses or claims seeking double recovery. Our counsel’s letter, which responds to a question posed by several plaintiffs’ lawyers, simply reiterates this basic position. If a claimant who received an overpayment from the GCCF subsequently makes a claim to BP for additional VoO compensation, BP is reserving the right to take into account and offset the GCCF’s overpayment. This is the law, and it is fair and equitable,” he said.

Meanwhile, the Gulf Coast Claims Facility said it will continue compensating claimants without deducting wages earned in the Vessels of Opportunity program. “We are not deducting it. BP is reserving their rights to deduct it when someone makes a property claim or a contract claim to them. What BP does is completely distinct from our program,” Zins said. “This letter has no impact on our methodology.”

As such, the parties seem to be on a collision course over the issue. But it could get resolved through six test cases of disputes arising from the Vessels of Opportunity program. Attorneys selected six participants in the Vessels of Opportunity program who represent the various issues at stake, and U.S. District Court Judge Carl Barbier has allowed for limited discovery and depositions and then mediation to find solutions to any problems with the program.

If that fails, plaintiffs in the consolidated litigation over the oil spill have filed a motion for summary judgment over the issue.

For anyone who has settled an economic loss claim with the GCCF, but now wants to pursue a claim over boat damage or other issues from the Vessels of Opportunity program, they must first go to the GCCF. If they are not satisfied with the outcome and want to go to court, the court may come up with a simple form allowing people for file their grievances.

BP’s stance that legal releases signed as part of GCCF compensation won’t preclude claims for boat damage and other grievances from the Vessels of Opportunity program could have other implications as well. Plaintiff attorney Joel Waltzer has long questioned how waivers that were signed before problems with the Vessels program had become apparent could be binding. Now that BP says it won’t enforce releases on Vessels of Opportunity, Waltzer believes it could open the door for attorneys to press for additional relief on fishing for subsistence, property damage and other types of claims.

Rebecca Mowbray can be reached at rmowbray@timespicayune.com or 504.826.3417.