Guest commentary: Why is lawsuit such a bad idea?

Louisiana legislators, still searching for a reason to quash the New Orleans levee board’s you-broke-it-you-fix it lawsuit against major oil companies, have turned up instead a canard. They have apparently learned that South Louisiana is sliding into the Gulf of Mexico (who knew?), and, therefore, the 10,000 oil and gas canals that have torn up the coastal zone could not have caused the zone’s sudden demise. After all, they reason, you can’t kill a dying man.

They have it wrong five different ways. First of all, you can kill a dying man, and I prosecuted folks who did just that for several years. We are all mortal, yet we go to great lengths to perpetuate our lives and those around us. I do not think we are ready to write off the 5 million acres of wetlands that used to buffer us from the Gulf of Mexico and have provided so much bounty.

More to the point, this subsidence has been known since at least the 1970s, when I first started studying the coast. The first thing one learns is that it has been going on for millennia, over the very time that the coast was created. The rate of growth outpaced the rate of subsidence, which is not hard to understand, but upon understanding it one is left to look for other reasons that America’s largest land-gainer turned into its largest land-loser, virtually overnight.

Which brings us to the third error. Two new phenomena came along at the start of the last century and changed everything: the big levee systems, and a stunning network of oil and gas pipelines and access canals. A map tracing them is simply a mass of lines. Both the levees and the canals have had the same effects, cutting off sediments, nutrients and fresh water on which this landscape survives. At this point in time, no one could not know this.

And now for the fourth error. Blame-it-all-on-subsidence conflates the time scales involved, millennia as compared to the past 80 years, and also leads to a conclusion, were it correct, that our legislators would hardly endorse. If we are sliding into the Gulf so inexorably and rapidly, then there is no room for coastal restoration. It’s time to throw in the towel, turn out the lights, sayonara. Fortunately, the pace is not so rapid; there remains time.

Not much time, though, because of the beast whose name our legislators have trouble mentioning as well: sea level rise. Every time it is measured, the rates go up. Right now relative rise at Grand Isle is projected at four feet, and this does not include sudden melting at both poles. At some point, nature may throw in the towel for us, but the best science today says we can save parts of the zone, at least, if we act strategically and concentrate our resources. Which means having the resources we need.

Which brings us to the fifth and final error, and it is colossal. Louisiana will require major funding to hold whatever line it can. It projects $50 billion for a first stab, and upwards of $100 billion to actually restore. State taxpayers will pay part of this, and the nation’s taxpayers part more, but one big player is missing: the one that created much of our predicament (most conservative estimates start at one-third of coastal loss), made large sums of money so doing and has so far avoided paying any part of the bill: The oil and gas industry.

That is all the levee board suit is asking: not that this industry be heaped in blame, not that it pay for all harm, just that it pay its share. If our legislators wanted to get real about this, instead of killing the messenger they would arrange a settlement in which all contribute commensurate with the damage they’ve caused. Please remind me: Why is that such a bad idea?

Oliver Houck is a professor of law at Tulane University.