In Pursuit of Bigfoot: Confronting Oil and Gas Mythology in Louisiana

• Author: J. Michael Veron
• Position: B.A. 1972, J.D. 1974, Tulane University; LL.M. 1976, Harvard University. Member, Veron, Bice, Palermo & Wilson, LLC, Lake Charles, Louisiana. Former adjunct professor of law, LSU Law Center, Tulane Law School. Member, Louisiana Bar. The author was lead counsel for the plaintiffs in Amoco Production Co. v. Texas Meridian Resources Exploration, 1...
• Pages: 1251-1274

In Pursuit of Bigfoot: Confronting Oil and Gas Mythology in Louisiana J. Michael Veron  “I therefore claim to show, not how men think in myths, but how myths operate in men’s minds without their being aware of the fact.” 1 INTRODUCTION: THE CURIOUS FATE OF SENATE RESOLUTION 142 The connection between wealth and political influence is an obvious one, and it is nowhere more obvious than in the state of Louisiana. From at least the time of Huey Long, 2 the adjectives “wealthy” and “powerful” have been synonymous with political influence in the Bayou State. Copyright 2015, by J. MICHAEL VERON. * B.A. 1972, J.D. 1974, Tulane University; LL.M. 1976, Harvard University. Member, Veron, Bice, Palermo & Wilson, LLC, Lake Charles, Louisiana. Former adjunct professor of law, LSU Law Center, Tulane Law School. Member, Louisiana Bar. The author was lead counsel for the plaintiffs in Amoco Production Co. v. Texas Meridian Resources Exploration , 180 F.3d 664 (5th Cir. 1999), Corbello v. Iowa Production Co., 850 So. 2d 686 (La. 2003), and Amoco Production Co. v. Texaco , 838 So. 2d 821 (La. Ct. App.), writ denied , 845 So. 2d 1096 (La. 2003). The author wishes to thank his partners and staff, as well as John Arnold and the environmental law firms of Jones, Swanson, Huddell & Garrison and Talbot, Carmouche & Marcello for their assistance in locating certain research materials. However, any errors remain the sole responsibility of the author. 1. CLAUDE LEVI-STRAUSS, 1 THE RAW AND THE COOKED: MYTHOLOGIQUES 12 (1983). 2. Huey Long served as the Governor of Louisiana from 1928 to 1932. At the time, he was prohibited by law from serving consecutive terms, so he successfully ran for a seat in the United States Senate, where he served until he was assassinated in the halls of the Louisiana State Capitol on September 10, 1935. Long was a colorful populist whose life and times inspired Robert Penn Warren’s Pulitzer Prize-winning 1946 novel, All the King’s Men. Interesting accounts of Long’s life have been written by LSU faculty members. The first noteworthy effort was the 1981 biography by T. Harry Williams, Huey Long. More recently, Richard D. White’s 2006 book, Kingfish: The Reign of Huey P. Long , told the story again. Regardless of which account one reads, it is generally agreed that Long’s political career was marked by controversy and corruption. As one writer noted, the flamboyant Long was perceived either as a political messiah or a dictator-in-waiting. See David Oshinsky, Every Man a King: A New Biography Studies the Many Faces of Huey Long, Lawmaker and Lawbreaker , N.Y. TIMES, Apr. 16, 2006, at F9 (reviewing RICHARD D. WHITE, JR., KINGFISH: THE REIGN OF HUEY P. LONG (2006)), available at http://www .nytimes.com/2006/04/16/books/review/16oshinsky.html, archived at http://per ma.cc/AWZ2-C8UT. 1252 LOUISIANA LAW REVIEW [Vol. 75 Anyone demanding proof of that proposition need look no further than the 2014 Louisiana Legislature. During that Regular Session, north Louisiana Democratic Senator Richard Gallot, Jr., introduced Senate Concurrent Resolution No. 142. 3 The stated purpose of the resolution was to request the Department of Revenue and the Department of Natural Resources to work with the Office of the Legislative Auditor to verify the accuracy of payments received by the state for oil and gas severance taxes and mineral royalties. 4 The seemingly uncontroversial measure sailed through the Senate on May 20, 2014, by a unanimous 35–0 vote. 5 It was then sent to the House of Representatives, where less than two weeks later it failed to receive the required majority and was defeated on June 2, 2014, in a roll call vote of 48 to 44. 6 At first glance, one is hard pressed to understand how such an innocuous measure could receive a single “nay” vote, much less 44 of them. The answer lies in the simple fact that the resolution went unnoticed by the only interest group it could affect adversely when it passed in the Senate. It was only after the resolution was sent to the House that the oil industry’s lobbyists swarmed the lower chamber and successfully lobbied for the required number of votes to defeat the resolution. The fate of Senate Concurrent Resolution No. 142 is proof of the political influence—indeed, one might argue domination—that the oil industry enjoys in Louisiana. However, the defeat of the resolution does not explain why or how the industry is able to wield such power. Clearly, the rise of the Republican Party in Louisiana, and across the South, has something to do with it. At the time of the 2014 Legislative Session, not a single Democrat held statewide office in Louisiana, and both legislative chambers had Republican majorities. But no elected official, regardless of political affiliation, willingly admits that he or she is voting for a special interest because of the potential for wealth or power. Like lawyers, all politicians like to speak the language of justification. In other words, they need to have a politically plausible explanation for any 3. See S. Res. 2014 Leg., 114th Reg. Sess. (La. 2014). 4. Id. at 1. 5. See Roll Call: LA SCR142 | 2014 | Regular Session , LEGISSCAN, https://legiscan.com/LA/rollcall/SCR142/id/365533, archived at https://perma .cc/35E2-VK64 (last visited Mar. 3, 2015). 6. See LA SCR142 | 2014 | Regular Session , LEGISSCAN, https://legiscan .com/LA/bill/SCR142/2014, archived at https://perma.cc/F3CH-7DKX (last visited Mar. 8, 2015). 2015] IN PURSUIT OF BIGFOOT 1253 position they take. And lobbyists serve to provide legislators with that rationalization. That is where mythology serves a great political purpose. For purposes of this discussion, mythology is defined as a set of exaggerated or fictitious “stories or beliefs about a particular institution or situation.” 7 The role of mythology in law and politics is not well understood, perhaps because it has rarely been explored as a legitimate academic inquiry, at least in legal circles. But mythology plays a powerful role in how the oil industry effectively wields its political and legal influence in Louisiana, and it is clearly a subject that warrants discussion. As shown below, a myth can persist only if it is uncritically accepted. In the case of the mythology surrounding oil and gas in Louisiana, false beliefs continue to survive because their underlying premises are accepted as true regardless of whether the facts support them. Indeed, this Article shows that the evidence actually contradicts, rather than supports, their factual underpinnings. I. A (VERY) SHORT HISTORY OF OIL AND GAS REGULATION IN LOUISIANA Early efforts to produce hydrocarbons in Louisiana date back to the 1860s. However, the modern history of oil and gas in Louisiana began with an oil well that was drilled in 1901 in a rice field on the “Mamou Prairie” in the community of Evangeline near Jennings, 8 ultimately leading to the creation of the Jennings Field. From there, oil and gas wells quickly proliferated across the state. The second oil field in the state was Caddo Field in north Louisiana, which was created in 1906 and is the most widely recognized. Not unexpectedly—at least in hindsight—the infant industry experienced significant growing pains, particularly in the form of waste and contamination. Early efforts to control downhole pressures were largely ineffective, with numerous “gushers” 7 . Mythology Definition , OXFORDDICTIONARIES.COM, http://www.oxford dictionaries.com/us/definition/american_english/mythology, archived at http:// perma.cc/SD5U-YT5H (last visited Feb. 13, 2015). 8. For a concise history, see First Oil Well in Louisiana , LA. DEP’T OF NATURAL RES., OFFICE OF CONSERVATION, http://dnr.louisiana.gov/index.cfm ?md=pagebuilder&tmp=home&pid=48, archived at http://perma.cc/GY35-VBVD (last visited Mar. 8, 2015). 1254 LOUISIANA LAW REVIEW [Vol. 75 spewing oil across the landscape. 9 Natural gas was considered a waste problem and was simply burned with flares. 10 It did not take long for environmental problems associated with oil and gas production in the state to catch the attention of the Louisiana Legislature in a big way. The state’s first legislative response to environmental issues created by oil and gas exploration and production activities was enacted in 1906. 11 That statute prohibited setting wells on fire and required gas wells to be plugged and abandoned. 12 Two years later, the 1908 Legislature passed legislation forming an agency to regulate oil and gas operations—the predecessor of what is now the state Office of Conservation. 13 Then, in 1910, the Legislature enacted a law prohibiting the discharge of brine into fresh water sources of irrigation during certain times of the year. 14 This statute was periodically amended until it prohibited brine contamination altogether. 15 Not surprisingly, the history of the state’s efforts to regulate oil and gas activities over the ensuing century reflects a constant tension between environmentalists and industry. The environmentalists have suffered from a fundamental political disadvantage: they are a nonprofit interest group and therefore are neither as well-organized nor as well-heeled as their counterparts, who comprise the wealthiest industry in the world. 16 This disparity is reflected in the number of 9. JOSEPH R. DANCY, OIL & GAS ENVIRONMENTAL LAW 5 (SMU School of Law). 10. For an interesting account of how gas flaring lit up the countryside surrounding oil fields in the 1930s and 1940s, see generally J. MICHAEL VERON, SHELL GAME: ONE FAMILY’S LONG BATTLE AGAINST BIG OIL (2007) [hereinafter VERON, SHELL GAME]. Nearly 100 years later, the problem persists. In North Dakota, natural gas produced from the Bakken Shale is burned while the more valuable oil is conserved and sold. The flares of natural gas became so large they could be seen in images transmitted from satellites. As a consequence, the state’s regulators were compelled to enact flaring standards in late 2014. See Brad Quick &amp...