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
Add to Briefcase
See more stories about...
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.”

What We're Following See More »
$618 BILLION IN FUNDING
By a Big Margin, House Passes Defense Bill
1 days ago
THE DETAILS

The National Defense Authorization Act passed the House this morning by a 375-34 vote. The bill, which heads to the Senate next week for final consideration, would fund the military to the tune of $618.7 billion, "about $3.2 billion more than the president requested for fiscal 2017. ... The White House has issued a veto threat on both the House and Senate-passed versions of the bill, but has not yet said if it will sign the compromise bill released by the conference committee this week."

Source:
SUCCEEDS UPTON
Walden to Chair Energy and Commerce Committee
1 days ago
THE DETAILS

"Republicans have elected Rep. Greg Walden (R-OR) the next chairman of the powerful House Energy and Commerce Committee. Walden defeated Reps. John Shimkus (R-IL) and Joe Barton (R-TX), the former committee chairman, in the race for the gavel" to succeed Michgan's Fred Upton.

Source:
BIPARTISAN SUPPORT
Senators Looking to Limit Deportations Under Trump
1 days ago
THE DETAILS

"Democratic and Republican members of the Senate Judiciary Committee are working on legislation that would limit deportations" under President-elect Donald Trump. Leading the effort are Judiciary Committee members Dick Durbin (D-IL) and Lindsey Graham (R-SC). Sen. Jeff Flake (R-AZ) is also expected to sign on.

Source:
REQUIRES CHANGE IN LAW
Trump Taps Mattis for Defense Secretary
1 days ago
BREAKING

Donald Trump has selected retired Marine Gen. James 'Mad Dog' Mattis as his secretary of defense, according to The Washington Post. Mattis retired from active duty just four years ago, so Congress will have "to pass new legislation to bypass a federal law that states secretaries of defense must not have been on active duty in the previous seven years." The official announcement is likely to come next week.

Source:
MEASURE HEADED TO OBAMA
Senate OKs 10-Year Extension of Iran Sanctions
2 days ago
THE LATEST
×
×

Welcome to National Journal!

You are currently accessing National Journal from IP access. Please login to access this feature. If you have any questions, please contact your Dedicated Advisor.

Login