Bypassing Big Oil’s Alliance with Government

In his almost 30-year career as an advocate for environmental justice, Louisiana attorney Stuart Smith has fought many of the biggest energy companies in the world and has come away victorious in his fair share of cases.

Smith tells the stories behind these cases in Crude Justice: How I Fought Big Oil and Won, and What You Should Know About the New Environmental Attack on America, a new book that is part memoir and part legal thriller. With energy companies acquiring even greater leeway to do as they please, Smith believed now was the right time to show the public how he successfully used the courts to gain some justice against corporate wrongdoers.

The book’s legal dramas take place primarily in the oil patch of the Gulf Coast states, where companies such as Exxon Mobil and Chevron spent millions of dollars defending themselves in cases brought by Smith and his fellow plaintiffs’ attorneys. One energy industry behemoth feared a loss in a single case brought by Smith in a small town in Mississippi would establish legal precedent and wind up costing the industry considerably more money down the road.

“Part of me understood exactly why they fought. We were looking to establish a brand-new area of environmental law, one that could gain a small measure of justice for workers and other citizens who’d been poisoned all across the oil patch of the Deep South and could cost Big Oil hundreds of millions of dollars,” Smith writes.
As a storyteller, Smith fills the book with intrigue and suspense, often leaving the reader to wonder how he and his outgunned colleagues will be able to claim a legal victory on behalf of their underdog clients.

Early in his career, Smith said he learned that big oil and gas companies operated in a system that valued profits over people and that they were perfectly content to try to cover their tracks if necessary. “It is our job as trial lawyers to try to make the costs of doing good less than the costs of doing bad,” he explains in the book.

It was hard enough battling the corporate giants and their high-priced legal teams. But with the government also on the side of the energy companies, achieving justice became a daunting task. Smith recalls never having an environmental case where the government was on the side of the victim. Whether it’s toxic waste produced by the oil and gas industry or oil spilled from the Deepwater Horizon rig in the Gulf of Mexico, the federal government, together with state governments, has traditionally served as an industry partner in quashing attempts to gain justice for alleged environmental crimes, according to Smith.

With the Gulf of Mexico disaster, the real agenda of the Obama administration was to shield oil giant BP, operator of the oil field where the massive leak occurred, from legal liability and protect the president from political blame, Smith contends in his book. In the aftermath of the explosion on the Deepwater Horizon, the federal government worked with BP to restrict access as a way to downplay the severity of the disaster.

As he investigated the spill on behalf of his clients, Smith discovered that a major problem would be “the lid of secrecy that BP and the feds had clamped down on the spill zone.” On land, BP’s private security guards prevented the public and journalists from reaching many of the oil-gunked beaches. In the air, the Federal Aviation Administration maintained a no-fly zone over the spill site to prevent citizens and the news media from shooting clear pictures or video of the oil spill.
At the worst of the Deepwater Horizon crisis, the FAA’s restricted zone stretched from the middle of Louisiana to the eastern panhandle of Florida, almost 500 miles. “Typically, news organizations are granted a waiver to do their reporting, but in the case of the BP oil spill such requests were turned down,” Smith notes in the book.

Smith and his law firm, New Orleans-based SmithStag LLC, have stayed busy in the aftermath of the Deepwater Horizon explosion. He is currently representing several clients, among them the Louisiana Environmental Action Network as well as commercial fishermen and charter boat captains, whose livelihoods have been damaged by the oil spill.

According to Smith and other experts, BP exacerbated the disaster when it sprayed 1.8 million pounds of Corexit, an oil dispersant, onto the surface of the Gulf to make the oil slicks disappear. Since then, a string of scientific studies has suggested that exposure to Corexit may have been more damaging to the health of cleanup workers and marine life than the initial exposure to spilled oil.

In previous cases dealing with waste created by oil and gas production, Smith learned that the philosophy of companies was “out of sight, out of mind.” The use of massive amounts of Corexit in the Gulf of Mexico “didn’t get rid of oil toxins but spread the oil toxins but spread them out so that the ocean surface looked cleaner,” he maintains.

By the time of the Deepwater Horizon disaster, Smith was an extremely successful plaintiff attorney. He had made enough money during his career that he could afford to pledge a $1.25 million gift to Loyola University New Orleans College of Law, the school from which he received his law degree in 1986. In 2008, the law clinic at the college was renamed as the Stuart H. Smith Law Clinic and Center for Social Justice as a result of his donation.

Smith’s specialty had been radioactive oilfield waste, referred to within the oil and gas industry as technologically enhanced radioactive material, or TERM. Smith’s biggest legal victory to date is a TERM case that resulted in a 2001 verdict of $1.056 billion against Exxon Mobil for contaminating private property. Exxon Mobil appealed the verdict, but the appeals court still ordered the company to pay hundreds of millions in damages.

‘Band of Environmental Rebels’

A Louisiana native, Smith had grown up around the oil and gas industry. But it wasn’t until he became an environmental attorney that he began to comprehend the grip the industry had on state politics. He also witnessed the reluctance of the federal government to intervene on behalf of people harmed by the industry and, in fact, saw how the government would often team up with industry to thwart citizens’ attempts for justice.

“We came together in the early days of the spill. On one side was the massive might of BP, a corporation with nearly $28 billion in revenues in the year before the Deepwater Horizon explosion, and its enablers in the federal government, who also had a near-stranglehold on the information that got released to the news media and thus to the public,” Smith explains. “On our side was a tiny band of scientists who weren’t getting paid off by the government, a cadre of environmental activists, boat captains, and even an airplane pilot, all of whom refused to be told where they could or couldn’t go.”

Smith’s “band of environmental rebels” was not satisfied with the sanitized and sometimes incorrect version of the spill and its impact put out for public consumption. Instead, they took to the waters of the Gulf to take samples of seafood and water quality in areas where the government and BP did not want them snooping around.

“In the end, we had almost created the equivalent of a ‘shadow agency’ that was investigating the environmental impact of the BP spill at the same time as the federal government, but we were reaching wildly different conclusions,” Smith recalls.

To appreciate Crude Justice, one does not need to be anti-fossil fuels. Smith aims to demonstrate that oil and gas can be extracted in a relatively safe manner, as long as all the necessary precautions are taken and as long as corners aren’t cut in the name of maximizing profits and shareholder value.

Near the end of the book, though, Smith warns the reader that times are getting harder for accountability as the marriage of industry and government is becoming even more entrenched. In the small town of Mayflower, Ark., for example, an Exxon Mobil pipeline carrying oil from the oil sands region in Alberta, Canada, broke open in March 2013 and spilled an estimated 235,000 gallons of oil in the community. The residents were exposed to the “same pathologies of Big Oil” that people along the Gulf Coast experienced three years earlier with BP, Smith writes.

Similar to the months following the Deepwater Horizon explosion, there were restrictions on flying over the scene of the spill to avoid any bad publicity for Exxon Mobil. According to Smith, there were denials that an ecologically sensitive body of water, Lake Conway, had been damaged by the spill, even after independent testing found the presence of hydrocarbons there.

The Mayflower spill also reminded Smith of how federal regulators are outgunned. In 2010, it was revealed that the U.S. Pipeline Hazardous Materials Administration had only 110 inspectors to cover 2.5 million miles of pipeline.

With the boom in shale drilling, the energy industry also has successfully lobbied state governments in regions outside the traditional oil patch. Pennsylvania rolled out the red carpet for the industry to drill in the Marcellus Shale before experts could study the potential environmental and social impacts of widespread gas drilling.

The most notable example of government collaboration with the oil and gas industry is occurring in Texas where state legislators quickly proposed legislation that would outlaw local bans on hydraulic fracturing after the residents of the city of Denton, Texas, voted for such a ban last November. In mid-May, Texas Gov. Greg Abbott signed a bill, House Bill 40, that prohibited cities from banning fracking, giving them only limited control over the oil and gas process within their city limits. The industry could breathe a sign relief. With the help of its friends in the Texas Legislature, it had successfully stamped out dissent in a rebellious part of the state.

“It’s easy for folks to feel powerless when confronting the billion-dollar bank books of Big Oil,” Smith admits. “But one thing I’ve learned from my recent experience with the Deepwater Horizon debacle: Everyday people can make a difference.”

Beyond the Gulf of Mexico and the Louisiana coast, “there are countless others fighting Big Oil and Gas in their own hometown — who take on the frackers at rural town hall meetings, or who stage noisy protests against the Keystone XL,” Smith writes.

Smith, who has seen his New Orleans home firebombed and his family’s cars torched by French Quarter nightclub owners angry over his involvement in a campaign for a neighborhood noise ordinance, does not plan to back away from his legal efforts for environmental justice.

“The oil companies have tried to shut me down for twenty years, and they’ve failed,” Smith asserts. “But they’ll never shut down me or my peers completely. Every day, unfortunately, there are Americans who are wronged by a big powerful corporation, and there will always be some battle to fight somewhere.”

Mark Hand reports on energy and environmental issues. He can be reached at markhand13@gmail.com.

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Mark Hand has reported on the energy industry for more than 25 years. He can be found on Twitter @MarkFHand.

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