Some well-motivated people working for a good cause have filed a lawsuit almost absurd in its contentions, without authority to file such a suit, while hurting, in both political and practical terms, the very cause they intend to advance.
These lawsuits should sink into the swamp from which they came.
At issue is the dreadful loss of coastal wetlands that has plagued Louisiana for at least a century. The losses must be mitigated and, we all hope, eventually reversed. The lawsuits by the Southeast Louisiana Flood Protection Authority-East and at least two southern Louisiana parishes aim to force as many as 97 energy-related companies to rebuild the wetlands and pay for past damages.
The ill-considered suits have produced, in reaction, the strange-bedfellows pairing of Gov. Bobby Jindal and U.S. Sen. Mary Landrieu in opposition. Jindal said on Thursday that the suit is an illegitimate “overreach of authority,” while Landrieu said the suits “will not save the coast of Louisiana” but could detract from other efforts to do so, including securing federal funding.
Jindal is right on the authority, Landrieu is right on the politics — and the plaintiffs, while trying to solve a legitimate problem, are probably wrong on the law.
First, it is doubtful that either the Flood Protection Authority or the parishes have legal standing to sue. None of those bodies has responsibility for permitting or reviewing the pipelines and canals created by the energy companies, for which the plaintiffs want to recoup damage payments, or for penalizing transgressions related thereto. Those responsibilities belong to the state Department of Natural Resources and/or the U.S. Army Corps of Engineers.
Second, it is virtually impossible to apportion “blame” to the companies. It is well established that the pipelines and canals have exacerbated the problem — but there are numerous other causes, too, ranging from dredging to hurricanes to the building of the Intracoastal Canal to deforestation of cypress swamps to the ravages of nutria and agricultural runoff. And, probably greatest of all, to the construction of a vast system of levees that, while protecting populations against floods, also cut off the resupply of soil that otherwise would feed and maintain the wetlands.
Yes, those levees: the ones maintained by the Flood Protection Authority and other levee boards. Maybe they should sue themselves.
As it is, the biggest public advocates for the suits, in a massive public relations campaign whose funding sources are unclear, can’t get their own stories straight about what percentage of the damage should be apportioned to the energy firms. In one advertisement, the noisy Lt. Gen. Russell Honoré claims the figure is “between 36 and 88 percent.” In another, Honoré pegs it at “35 to 80 percent,” and in a January forum, another advocate said it was within the absurdly broad range of 10 to 70 percent.
A court of law assessing damages needs numbers far more specific than that.
Then there’s the little problem of whether the oil companies are actually liable for whatever percentage of the damage they caused. They operated according to permits. The state knew what they were doing. The state chose to allow the projects, knowing they would bring jobs and vast riches to Louisiana. In short, the pipelines themselves were legal, and the bodies (DNR and the Corps) charged with policing them never raised a peep. Since when does American law allow for retroactively making something illegal or legally actionable that was approved by government in the first place?
Finally, for now, practical and political considerations make these suits counterproductive. The state has made great strides, with full and helpful cooperation from the energy industry, in creating a “Master Plan for a Sustainable Coast.” These suits create an adversarial relationship with the industry just when the companies are acting constructively. Also, as Landrieu notes, the suits make it harder for her to convince Congress to do its part when congressmen from other states can punt their responsibilities to courts and the oil giants.
This topic begs much further scrutiny. For now, know this: Sometimes, if one desires just solutions, the courts of law can turn into giant sinkholes, eroding and then destroying the soil of common ground.
New Orleans native Quin Hillyer is a contributing editor for National Review. You can follow him on Twitter, @QuinHillyer. His email address is Qhillyer@theadvocate.com.