As a State Wrangles, Its Coast Is Swept Out to Sea

A lawsuit against the oil industry has launched a flurry of bickering, but no cash to fix the coastline.

A photo of oil and gas canals in Louisiana's Cameron Parish. Photo courtesy of Gulf Restoration Network.
National Journal
Jason Plautz
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Jason Plautz
June 9, 2014, 1:10 a.m.

BAT­ON ROUGE, La. — John Barry is either a hero or a huck­ster, a con­cerned cit­izen or a rad­ic­al act­iv­ist. It de­pends on who you ask.

Barry, as part of a board ap­poin­ted by the state to study flood pro­tec­tion after Hur­ricane Kat­rina, helped en­gin­eer a law­suit against 97 oil and gas com­pan­ies, seek­ing dam­ages that would help pay for a plan to mit­ig­ate Louisi­ana’s erod­ing coast­line. The suit charges that the com­pan­ies’ activ­it­ies con­trib­uted to the coast­line shrink­ing and they should pay to re­store the state’s nat­ur­al flood pro­tec­tion.

“People want to call me an en­vir­on­ment­al act­iv­ist, but this is not about act­iv­ism. This is about law and or­der,” said Barry. “The law re­quired [com­pan­ies] to clean up after them­selves, and they didn’t do it.”

It’s that lack of cleanup, Barry and his ilk al­lege, that’s fuel­ing an eco­lo­gic­al cata­strophe: Louisi­ana is be­ing swept out to sea.

It’s not an ab­stract prob­lem. The state has lost some 1,300 miles of marshes and bar­ri­er is­lands since the 1930s, and it’s only get­ting worse. The U.S. Geo­lo­gic­al Sur­vey es­tim­ates that 75 square kilo­met­ers are be­ing lost an­nu­ally, and the wet­lands could be gone in 200 years. And as they dis­ap­pear, Louisi­ana is los­ing the buf­fer that shields its com­munit­ies from storm surges and hur­ricanes.

And so to hear Barry tell it, his board is seek­ing ac­count­ab­il­ity by mak­ing an in­dustry pick up the tab for the dam­age it has caused.

The suit’s op­pon­ents — a power­ful bloc that starts with the oil in­dustry and goes all the way up to Re­pub­lic­an Gov. Bobby Jin­dal — tell a dif­fer­ent story, one of a rogue board al­lied with tri­al law­yers that is pur­su­ing court-sanc­tioned ex­tor­tion. And they’ve gone to the state Le­gis­lature to pass a bill that would kill the law­suit, which Jin­dal signed in­to law last week.

“Most of us think this is about money, not fix­ing the coast,” said state Sen. Robert Ad­ley, who helped pass the bill. “If the gov­ern­ment is go­ing to fix the coasts, the gov­ern­ment can step up and get that money. You don’t just sue people to get it.”

When the board sued, the think­ing was that it would put the com­pan­ies on no­tice, per­haps ca­jole a few of them to strike a deal. What it’s done in­stead is launch a bit­ter battle of fin­ger-point­ing and le­gis­la­tion about law­yers’ con­tracts. It also has awakened the en­vir­on­ment­al move­ment. An ex­pec­ted chal­lenge to the law­suit-killing bill adds an­oth­er court fight to the mix.

All without pro­du­cing a single dol­lar’s worth of the fund­ing needed to fill a massive budget hole in the Louisi­ana’s plan to save its van­ish­ing coast.

Louisi­ana in 2012 ap­proved a plan that would build new levees and re­store marsh­land, but it will cost up­ward of $50 bil­lion over 50 years. Of that, about $1.2 bil­lion is ex­pec­ted from a set­tle­ment with BP over the 2010 oil spill and a rev­en­ue-shar­ing bill will con­trib­ute some $600 mil­lion start­ing in 2017.

As for the rest of the tab? That’s where Barry thinks the oil com­pan­ies come in. Com­pan­ies will dredge canals to house pipelines or move massive drilling equip­ment. When a storm surge floods the land, salt wa­ter stays be­hind in those canals, killing the plants that feed the marshes and con­trib­ut­ing to the hasten­ing erosion.

Ac­cord­ing to the suit filed by the South­east Louisi­ana Flood Pro­tec­tion Au­thor­ity-East, the com­pan­ies have failed in the duty spelled out in their per­mits to fill in the canals and re­store the land, steps that would help mit­ig­ate the dam­age. Ac­cord­ing to vari­ous stud­ies, oil and gas activ­it­ies have ac­coun­ted for a large piece of the de­struc­tion — the USGS puts the num­ber at 36 per­cent.

“In­dustry reg­u­la­tions and the law are clear: These sites must be pro­tec­ted or re­paired, but there’s little, if any, evid­ence that en­ergy com­pan­ies ful­filled those ob­lig­a­tions,” Glad­stone Jones III, one of the law­yers rep­res­ent­ing SLFPA-E in the suit, said last year. “In­stead we have a re­cord of coastal land loss and ru­in.”

SFLPA-E was one of two boards cre­ated by the state in the af­ter­math of Hur­ricane Kat­rina to study and for­ti­fy the state’s de­fenses against flood­ing. So the law­suit — a un­an­im­ous ef­fort by the nine board mem­bers — was seen as an un­pre­ced­en­ted strike against the power­ful oil in­dustry.

The board ex­pec­ted plenty of push­back (in­deed, Barry and two oth­er mem­bers did not have their con­tracts re­newed at the end of their terms this fall in what was seen as polit­ic­al re­venge), but it also hoped to bring some com­pan­ies to the table to dis­cuss a set­tle­ment. At­tor­ney Gen­er­al Buddy Cald­well hin­ted this spring that could be an op­tion.

It even in­spired two sim­il­ar suits from Jef­fer­son and Plaquemines par­ishes, and some oth­er coastal areas are said to be con­sid­er­ing their own.

But the in­dustry doesn’t seem ready to play ball just yet. First, it tried to get the suit tossed (the at­tempt was re­buffed but is be­ing ap­pealed).

“The levee board is a rogue state agency that went out on its own to do something it wanted to do for the be­ne­fit of some well-fin­anced, wealthy tri­al law­yers. All it is is a money grab. It’s not about the coast, it’s about John Barry writ­ing his next book,” said Don Briggs, pres­id­ent of the Louisi­ana Oil and Gas As­so­ci­ation.

“Be­sides that, we don’t be­lieve we’re re­spons­ible for the de­struc­tion of Louisi­ana’s coast.”

Briggs was speak­ing from his of­fice in the as­so­ci­ation’s Bat­on Rouge of­fice, a man­sion formerly owned by ex-Gov. Jim­mie Dav­is. A win­dow in Briggs’s of­fice looks onto the state Cap­it­ol, and it’s there that the most po­tent op­pos­i­tion to the law­suit has taken place.

Jin­dal has vowed to kill the suit, mak­ing it a pri­or­ity for this le­gis­lat­ive term. “We’re not go­ing to al­low a single levee board that has been hi­jacked by a group of tri­al law­yers to de­term­ine flood pro­tec­tion, coastal res­tor­a­tion, and eco­nom­ic re­per­cus­sions for the en­tire state of Louisi­ana,” he said last sum­mer.

A flurry of bills emerged to kill the suit, but the one that passed would ret­ro­act­ively bar the flood board’s con­tracts with the law­yers. It ef­fect­ively kills the suit, but al­lows ones filed by par­ishes to move for­ward.

At the heart of the leg­al struggle is a pair of mu­tu­ally ex­clus­ive nar­rat­ives about what’s really hap­pen­ing in Louisi­ana: One side says it’s chal­len­ging an in­dustry that has been too power­ful for too long; the oth­er holds that a band of rogue tri­al law­yers are tak­ing ad­vant­age of Louisi­ana’s li­ti­gi­ous cli­mate and threat­en­ing to stifle the state’s most im­port­ant eco­nom­ic driver.

Re­gard­less of their mo­tiv­a­tion, the flood board’s suit has gal­van­ized a long-dormant en­vir­on­ment­al move­ment to strike out against what’s been the state’s dom­in­ant eco­nom­ic in­terest. They’ve even got an army, led by re­tired Lt. Gen. Rus­sel Hon­oré, who led the Joint Task Force after Hur­ricane Kat­rina.

And he’s not shy about identi­fy­ing an en­emy.

“This is a fight,” Hon­oré said. “The oil com­pan­ies have hi­jacked the f — ing demo­cracy. They’ll say they do it be­cause of the eco­nomy “¦ but that’s a sad ex­cuse for not want­ing to change and it’s a poor ex­ample of the ab­use of power by an in­dustry.”

Hon­oré — who lob­bies with an un­furled green rib­bon un­der his flag pin — in­sists he’s not an en­vir­on­ment­al­ist (his pet is­sue is hur­ricane pre­pared­ness), but is simply try­ing to re­store bal­ance with the in­dustry. The in­form­al Green Army has united groups ran­ging from the na­tion­al Si­erra Club to state out­fits like the Louisi­ana Buck­et Bri­gade for the first time un­der a con­fed­er­a­tion with a mock mil­it­ary seal with a pel­ic­an and the slo­gan “Health, Sus­tain­ab­il­ity, Com­munity.”

Their united ef­fort has drummed up op­pos­i­tion to frack­ing ef­forts near Mandev­ille and moved the Le­gis­lature on air mon­it­or­ing, but the pri­or­ity was to pro­tect the levee board law­suit and force in­dustry ac­count­ab­il­ity. The groups say they have the pub­lic on their side — a Novem­ber poll sponsored by sup­port­ers found that 90 per­cent of cit­izens favored hav­ing the oil com­pan­ies pay for res­tor­a­tion rather than tax­pay­ers.

The choice isn’t that simple. Louisi­ana’s coasts were dis­in­teg­rat­ing be­fore pro­duc­tion ramped up, thanks largely to con­struc­tion of levees re­dir­ect­ing the Mis­sis­sippi River. That robbed the marshes of the silt and sed­i­ment that would nor­mally flow to re­store the land. Rising sea levels have bur­ied more of the bar­ri­er is­lands. Even gi­ant nu­tria ro­dents brought in from South Amer­ica for their fur have played a role by gnaw­ing away at the marshes.

With so many cul­prits, there’s no clear source of money. Most want the fed­er­al gov­ern­ment to chip in for the res­tor­a­tion plan, but the odds of a pot of bil­lions go­ing to the Gulf are non-ex­ist­ent. The Gulf of Mex­ico En­ergy Se­cur­ity Act will send an­nu­al money to the coast and Sen. Mary Landrieu has pro­posed the Fair Act, which would give Gulf states a great­er share of rev­en­ue from oil and gas activ­it­ies.

“Amer­ica as a whole has to step up,” said Ad­ley, adding that an “out­side-of-the-box” fund­ing plan that in­cor­por­ated fed­er­al, state, and private dol­lars would be ne­ces­sary. Not help­ing, he said, was a law­suit that cre­ated an “in­ter­pret­a­tion of guilt” for oil com­pan­ies that oth­er­wise would be open to dis­cus­sions.

To the in­dustry, the law­suit is ask­ing them to fol­low re­quire­ments that wer­en’t in place when their activ­it­ies began and aren’t ap­plic­able while per­mits are still open. So rather than strik­ing a deal, they’re seek­ing to con­trol “a rogue state agency and a bunch of tri­al law­yers,” in Briggs’ words.

It comes at a time when the in­dustry is already fa­cing more than 100 “leg­acy law­suits,” where landown­ers sue every com­pany that’s held a lease on a tract of land for en­vir­on­ment­al dam­age. Giv­en the state’s status as a “ju­di­cial hell­hole” dic­tated the Amer­ic­an Tort Re­form As­so­ci­ation, there’s con­cern that Louisi­ana may not be worth the ef­fort for drillers, un­wel­come news in a state where oil and gas ac­coun­ted for 9.7 per­cent of the GDP in 2010.

“No in­dustry can feel com­fort­able mak­ing sig­ni­fic­ant ad­di­tion­al in­vest­ments in this un­cer­tain leg­al en­vir­on­ment,” said Bruce Vin­cent, pres­id­ent of Texas-based Swift En­ergy Com­pany in a press con­fer­ence cri­ti­ciz­ing the suit. “There are oth­er states, in­clud­ing one large state right across the Sabine River, where oil and gas op­er­at­ors do not face this un­cer­tainty.”

But as the struggle con­tin­ues, so does the prob­lem it has thus far failed to solve. The coast con­tin­ues to van­ish, with the dam­age in­creas­ingly ob­vi­ous from satel­lite pho­tos. And it’s the threat of the im­pact of that dam­age that looms over all the politick­ing.

“What we are talk­ing about is pro­tect­ing peoples lives and prop­erty from hur­ricanes,” Barry said. “Every­one knows that truth.”

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