Quin Hillyer: Board shouldn’t sue, but should be independent

The state Legislature is considering several wrongheaded bills to undermine the political independence of some levee boards — but that doesn’t mean all the bills reining in the levee boards are misguided. The Legislature would be right to explicitly limit the boards’ authority to file outrageous lawsuits, such as the suit trying to hold oil companies liable for coastal wetlands loss.

My column two weeks ago explained only a few of the reasons why one Louisiana levee board’s lawsuit against oil companies is shamefully ludicrous. We’ll consider several other reasons momentarily.

But first, let’s be clear: When several levee boards were merged, post-Katrina, into the Southeast Louisiana Flood Protection Authority-East and the SLFPA-West, it was a supremely worthwhile reform. The boards were professionalized, forced to focus on flood protection instead of lucre-inducing sidelights, such as managing airports, and stripped of vast patronage powers that bred corruption. In short, they were largely and wisely depoliticized.

A few pending bills, such as SB79 and SB629, would reverse these gains by giving the governor too much control of the boards, notably by changing the way board members are appointed and by folding the boards into the Coastal Protection and Restoration Authority. Such concentration of power is ill-advised; the boards’ semi-autonomy is quite valuable and should be preserved.

On the other hand, SB547 and SB553, to rein in the boards’ ability to file lawsuits, are well aimed. It’s not just that the current lawsuits are so wrongheaded. More broadly, to allow a nonelected, subsidiary part of government to file such suits in contradiction of the policy of elected branches is to violate numerous important tenets of republican (small R) political theory, and it also inhibits practical governance.

Even if the boards should have the power to sue — which they shouldn’t and probably already don’t — the suit against the oil companies is absurd. My earlier column noted that the levees themselves, probably far more than the oil pipelines, are significantly responsible for coastal erosion, so it’s hypocritical for the levee board to sue anybody else for wetlands loss. I also argued that oil companies already have paid for whatever portion of wetlands damage is their fault, by forking over billions of dollars in taxes and royalties through the years, not to mention employing many tens of thousands of workers.

Louisianans have only themselves to blame if they haven’t sufficiently used those proceeds to mitigate wetlands loss. Ditto, their refusal to take other, legitimate measures to raise money from the oil companies, such as the Coastal Wetlands Environmental Levy pushed for decades by former Gov. Dave Treen.

The actual demands in the suits are far more unreasonable, though, than my earlier column detailed. Again and again, the plaintiffs demand “backfilling and revegetating each and every canal dredged by (the oil companies)” (emphasis added). In the vernacular, this is flat-out nuts.

During the course of the “nearly a century” of oil production cited by the levee board, all of which was leased and regulated by the state, former and current oil companies have laid pipelines in many thousands of “canals.” The cost of “revegetating” each of them would be insanely prohibitive, not to mention that in many cases the task would be a physical near-impossibility. Absent a multifaceted effort of the sort CPRA already is engaged in, one can’t revegetate areas that long since have become open water.

But that’s effectively what the suit demands — that the companies in essence do the entire work of the state’s Restoration Authority. It asks courts to force the companies to undertake “all manner of abatement and restoration activities deemed to be appropriate, including, but not limited to, extensive wetlands creation, reef creation, land bridge construction… (on and on the list goes).”

Nowhere does the suit explain why the oil companies uniquely — rather than loggers who destroyed vast swaths of cypress swamps or the shipping companies using the Intracoastal Canal or whoever released voracious nutria into the swamps — should bear these costs.

The suit doesn’t stop there; it also asks for substantial, but undefined, financial payments from the companies to the levee board — and, of course, to the clever trial lawyers driving the lawsuit.

Last December, 16 of Louisiana’s 17 levee boards voted to demand that the SLFPA-East drop this naked attempt at securing jackpot (in)justice. The Legislature should honor those 16 by passing bills stopping this one rogue board from serving the trial lawyers to the detriment of common sense and of the state’s real interests.

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.