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Suing Exxon-- and the Future of New Orleans

On July 24, 2013, the Southeast Louisiana Flood Protection Authority East, the levee board responsible for protecting most of greater New Orleans, filed suit against Exxon Mobil, Shell, BP, Chevron, and 93 other oil, gas, and pipeline companies for the coastal land loss they caused, which in turn threatens the state's flood protection. I served on the board and was chief architect of the lawsuit. The attorneys' website, http://jonesswanson.com/practice-areas/southeast-louisiana-flood-protection-authority-east-case/ , contains links to the petition-- i.e., the lawsuit itself-- and to a complete listing of news stories.

The suit was a significant event in Louisiana and the governor demanded we withdraw it, but the board is independent, created after Katrina by a constitutional amendment and insulated from political pressure because, unlike other levee boards in the state, members do not serve at the governor's pleasure. However, my term on the board and that of several others expired, and the governor replaced us with appointees who promised to try to kill the suit. In the end, the governor and the industry fell one vote short of gaining control of the levee board, and a pro-suit majority survived Bobby Jindal's governorship.

Jindal and the industry also attacked the lawsuit in the state legislature, filing 17 bills to attack the suit. We killed 16 of them.The 17th had enormous unintended consequences-- so many that the attorney general, 166 law school professors, several parish presidents, and others advised and urged Jindal to veto the bill. He signed it anyway, on June 6, 2014. But it was so poorly written that in October 2014 a Louisiana state court ruled that the law did not apply to the levee board, its intended target. The court then went further and ruled that on three separate grounds the law is unconstitutional.

In the meantime, a federal district court ruled that the levee board did not have standing to bring suit, and the U.S. Supreme Court on October 30, 2017, declined to hear the board's appeal.

If that makes it seem all was for naught, that is by no means the case. In November, 2015, Louisiana elected a new governor, John Bel Edwards, who was the suit's chief defender in the state legislature. Six parishes have followed the levee board's lead and filed law suits, and the governor has joined in those suits and may take much more aggressive action. Meanwhile, private landowner suits against the oil industry over land loss have won important decisions. The goal was always to bring enough pressure on the industry to compel them to reach a vaoluntary agreement. The story continues...

Below are three op eds which summarize the substance of the issue. The first two I wrote in July and August 2013, shortly after we filed the lawsuit, explaining the basis of it and what we hope to accomplish. The third was written in February 2015 after the federal court decision.

Meanwhile, if you skipped the bio page, here's my relevant personal background: After Hurricane Katrina, the Louisiana congressional delegation asked me to chair a bipartisan working group on flood control. In 2006 the National Academy of Sciences invited me to give the 2006 Abel Wolman Distinguished Lecture, an honor given for contribution to water-related science. (I'm the only non-scientist ever to give that lecture. In 2007 I was appointed to the Southeast Louisiana Flood Protection Authority East, which oversees several levee districts in the metropolitan New Orleans area, and the Louisiana Coastal Protection and Restoration Authority, which is responsible both for the state's hurricane protection and for rebuilding the 2100 square miles of land the state has lost in recent decades. I've talked about these issues in such venues as Meet the Press, NPR, and the BBC, and written about them for The New York Times, Time Magazine, USA Today, The Washington Post, The Smithsonian, and elsewhere.

Here are the three op eds about the lawsuit: the first was published in The Advocate (the main Baton Rouge paper, and which also appears in New Orleans, and Lafayette) July 24, 2013, the day the suit was filed; the second ran in the Times-Picayune (New Orleans) August 11, 2013, after the governor demanded we withdraw the suit, etc., with a proposal. The third ran in The Advocate February 24, 2015.

From The Advocate, July 24, 2013

Why We're Doing It

After Katrina, Louisiana voters overwhelmingly approved a constitutional amendment to allow the creation of the Southeast Louisiana Flood Protection Authority East, the board which oversees levee districts protecting the east bank of the greater New Orleans area. This board is composed of professionals with expertise in engineering, storm surge modeling, coastal science, river hydrology, and meteorology.

The authority takes its mission to protect the public seriously. Because of that, with reluctance but with a unanimous vote, today we are filing a law suit against 97 oil & gas and pipeline companies over the industry’s contribution to coastal land loss.

The issue is simple. Levees and floodwalls are the last line of defense against a hurricane storm surge. The first line of defense is the buffer of barrier islands, marsh, and land between the ocean and the levee system, all of which lessens the surge which attacks the levee system.

The industry is certainly not responsible for all of the land loss. There are multiple causes for that. But the industry is responsible for a significant part of the land loss. Numerous scientific studies attest to that, and the industry itself acknowledges it. Throughout the state the industry dredged 10,000 miles for canals and pipelines through coastal lands, every inch of which allowed saltwater intrusion that weakened or destroyed the landscape. We ask that the industry fix the part of the problem they caused.

We believe they are obligated to do so for three reasons. First, in most cases permits issued allowing the activity required the company to repair whatever environmental damage the activity caused. Company officials, voluntarily and of their own free will, promised to comply fully with these requirements and obligations. They haven’t.

Second, federal law prohibits any activity which “impairs the effectiveness of a levee.” Without doubt, any increase in storm surge makes a levee less effective.
Third, a well-established principle of civil law, going back to the 1400s, is “servitude of drainage.” The applicable part of that principle here prohibits one person from increasing the flow of water on someone else. Again, loss of coastal land sends more water against the levees.

We recognize the controversial nature of this law suit and regret its necessity. But the industry has had years to do what it should do, and what in most instances agreed to do. Areas the industry has dredged and abandoned must be backfilled and re-vegetated, as the law requires and as the companies agreed to do as a condition of their activities. And the industry must pick up its fair share of the increased costs of the more robust flood protections required to offset the loss of coastal wetlands and the vital storm protection they provide.

If nothing is done, the state Coastal Protection and Restoration Authority estimates that statewide flood damages will rise to an average of a staggering $23.4 billion a year. For the wealthiest industry in the world to shift the burden of preventing these costs to the citizens of Louisiana is unfair to say the least . The way forward is to make partners of the responsible parties, precisely as the law requires, and to ensure that those who have contributed to the problem now contribute to the solution.

The op ed below ran in the Times-Picayune August 11, 2013

What the levee authority really wants for Louisiana's coast: John M. Barry

The Southeast Louisiana Flood Protection Authority East -- the levee board responsible for protecting metropolitan New Orleans east of the Mississippi River -- filed suit July 24 against Exxon Mobil, BP, Shell and 94 other oil, gas and pipeline companies for destroying the land and marsh buffer that once provided natural protection to New Orleans from hurricanes.

Destruction of buffering coastal lands by the industry is even greater west of the river, and we hope and expect that any final resolution of the issue will help not just greater New Orleans but also those areas damaged even more than ours. For this lawsuit is not about money. It's about survival. And I would like to propose a solution outside the courtroom.

As most readers know, approximately 1,900 square miles of Louisiana's coastal lands have disappeared in the past 80 years. This land loss is continuing and, coupled with sea level rise, if nothing is done most of Louisiana's coast will simply disappear. This would be disastrous for the country and the state -- and particularly the defendants in the suit. Chris John, head of Louisiana Mid-Continent Oil and Gas Association, wrote in The Times-Picayune and NOLA.com last week that coastal lands "protect critical oil and gas infrastructure from storm surge," adding that "our viability depends on" the coastal buffer.

Several factors have contributed to land loss, and the oil and gas industry is by no means responsible for all of it. But even the industry recognizes it is responsible for much of it. The industry has dredged 10,000 miles of canals and pipelines through the marsh, allowing saltwater intrusion, killing plants. Without their root structure holding the land together, it melted into the ocean. In addition, the extraction of an immense volume of oil and gas from beneath the surface has caused the surface of the land to sink. Scientific studies, which included industry representatives, concluded that the industry caused an estimated 36 percent of the land loss statewide. And Chris John conceded, "Industry recognizes its role" in the loss.

By destroying the land buffer that once protected populated areas, the industry has made the levee board's task far more difficult and far more expensive. Don't take our word for it. In 2006, when the state of Louisiana sued the federal government for revenue from off-shore production, Bob Bea, one of the most respected flood experts in the world and formerly Shell's chief off-shore engineer, stated that the industry "contributed significantly to the loss of natural defenses such as barrier beaches, wetlands, and marshes. In several important cases, it was the loss of these natural defenses that contributed to the unanticipated breaches of flood protection facilities that protected the greater New Orleans area during Hurricane Katrina and led to the repeated flooding during Hurricane Rita."

Our suit asks the industry to fix only the part of the problem it created -- a problem which continues to worsen. It is obligated to do so under the law. In most cases, industry operations were conducted under permits requiring companies to limit damage and restore the area when operations end. We ask them to abide by these contractual requirements, which they voluntarily agreed to. Louisiana also has a civil law tradition, and civil law doctrine since Roman times and Louisiana statutes include "servitude of drain," which prohibits one party from sending more water onto another party. By destroying the buffering land, the industry has sent more storm surge against our levees.

We want the industry to backfill and replant where possible; for areas where restoration is impossible, we ask compensation so we can improve the flood protection system.

The industry strongly supports coastal restoration and participated in the state's development of a Master Plan -- widely praised by scientists and environmentalists -- to address the problem. Despite admitting its responsibility for much of the problem and despite the fact that its "viability" depends on a healthy coastal buffer, however, it has made minimal contribution to fixing it. The wealthiest industry in the world instead wants taxpayers -- readers of this article -- to repair what it destroyed, and what it promised in writing to repair itself.

No one has attacked the substance of our claims. Gov. Jindal charges only that we lack authority to sue. We do have authority. We are an independent body created by a constitutional amendment, which passed with 81 percent of the vote. No lawyer "hijacked" us. The suit was our idea, and I personally engaged in a long search for the best lawyer I could find. The industry forced us to sue by refusing to take corrective action itself.

The governor called for legislation next year to interfere with the suit. I ask the governor this: Why not solve the problem? Our suit addresses only New Orleans. The entire Louisiana coast needs help. The governor has been good for the coast. I ask the governor to be great for the coast. I ask the governor to negotiate a solution acceptable to everyone. I would support this. I hope the governor and the Legislature would, too.

Not long ago I talked to someone who suggested to an industry leader that it make a voluntary contribution to fixing the coast. I asked him what the response was. He shook his head unhappily and said, "They're not there yet."

Perhaps now, facing this litigation, they'll get there.

The Advocate, February 24, 2015

In 1989, the Louisiana Mid-Continent Oil and Gas Association — the trade association for Exxon Mobil, Chevron, BP, Shell and the other majors — conducted a study of areas most damaged by coastal land loss. By then, the threat presented by land loss was well-known, state laws required that areas damaged by the energy industry be “restored to the pre-existing conditions” and Governor David Treen had tried and failed to pay for fixing the problem with a new Coastal Wetlands Environmental Levy on the oil and gas industry.

Perhaps Mid-Continent launched its study hoping for scientific support to allow the industry to escape liability. If so, it was disappointed. The study concluded that “canal development tend[s] to be the overwhelming cause of wetlands losses.”

What has the oil and gas industry done since 1989 to address the problem that was “the overwhelming cause” of land loss in the hardest-hit areas? Can’t think of anything? Exactly.

In 2006, looking at the severe land loss in the Barataria and Terrebonne basins, a study by the state’s Department of Natural Resources attributed an astonishing 76 percent of land loss to “oil and gas exploration and drilling.”

What has the industry done since 2006, when the state blamed it for 76 percent of the problem in those basins? Can’t think of anything? Exactly.

Meanwhile, at least another 500 square miles of Louisiana melted into the sea.

The industry’s responsibility for land loss varies dramatically from region to region, and certainly other causes, including the levees themselves, also have destroyed land. But pretending oil and gas played no role is like pretending Drew Brees doesn’t matter to the Saints offense. For years, the state has declined to enforce existing laws and regulations that since 1980 have required areas be “restored to the pre-existing condition.” To force the industry to obey the law, the Southeast Louisiana Flood Protection Authority filed its lawsuit against oil, gas and pipeline companies, basing its claim largely on federal law that prohibits doing anything to “impair the usefulness” of a levee and asking only that industry fix the part of the problem it created.

Ever since that lawsuit was filed, the industry has said the suit threatened industry’s cooperation with those trying to preserve the coast. What cooperation? Well, Chevron, which (through Texaco, which it now owns) probably caused more damage than anyone else, brags about supporting a project that will create 293 acres in South Lafourche. But there are 640 acres in a square mile, and the state has lost nearly 2,000 square miles.

And SLFPAE filed only after — eight months after — SLFPAE president Tim Doody and I told Garret Graves, then the governor’s coastal adviser, what our board was considering and suggested we all go to Mid-Continent head Chris John and try to work out a voluntary agreement. Graves replied, “I already tried that. They’re not there yet.” He also made it clear that for political reasons the state would not sue the industry.

Now Judge Nannette Jolivette-Brown has dismissed the flood authority’s case, not because the industry successfully argued it didn’t destroy land but because Brown — using rather bizarre logic — ruled that the right to call the industry to account for impairing a levee’s usefulness belonged only to the federal government and does not “extend to the protection of a levee owner or operator.” The dismissal will be appealed but it will take months before a decision comes down. Stewart Simonson, an attorney uninvolved in the case who was a senior member of the Bush administration, said, “The Fifth Circuit is conservative and pro-business, and they expect a certain level of legal craftsmanship. This isn’t it. The board has a good chance of winning the appeal.”

For the moment, the lawsuit is in abeyance, but it already has a legacy, changing politics and public awareness of the industry’s role. National realities also are settling in. The state’s elected officials have always said they’d get money for the coast from Washington, i.e., from taxpayers. That was always a fantasy. The most pro-environmental president since Teddy Roosevelt just proved it: far from calling for more federal dollars for Louisiana’s coast, Obama called for cutting those dollars to zero.

All this opens the door to three questions.

First, the industry said it was ready to work collaboratively to solve the problem, if only that nasty lawsuit wasn’t in the way. So, industry, when are you going to collaborate — not building 300 acres, but on a scale commensurate with the many billions of dollars of damage your own studies concede you’ve done?

Second, will some politician have the guts to demand that the industry step up? Will the attorney general protect the future of Louisiana? Will someone else? Or will our anti-tax governor stick Louisiana taxpayers with all the costs? In fact, last year, state Rep. Stuart Bishop, another anti-tax conservative and the manager of the bill to kill the lawsuit, conceded that taxpayers would pick up the tab for industry-caused damage.

Or, third, will the coast and so much that makes Louisiana Louisiana simply disappear?

The lawsuit was never the problem; it was filed to solve the problem. Let’s solve the problem. The land loss is the problem.