Barry: Industry legally obligated to help fix coast

By John Barry

After Hurricane 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 unanimous agreement, we have filed a lawsuit against 100 oil and 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 to keep a hurricane storm surge outside the city. 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 that 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 fact, 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 it 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 lawsuit and regret its necessity. But the industry has had years to do what it should do, and what in most instances it said it would do. Everyone else has stepped up. The citizens of Louisiana passed a constitutional amendment guaranteeing that all the money from Outer Continental Shelf energy production would go to coastal restoration and protection. The state government is devoting vast sums to the coast. Even the federal government has recognized the damage the Mississippi River Gulf Outlet caused, and the Army Corps of Engineers has delivered a plan to repair that damage. The one party missing from this conversation is the energy industry.

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 appropriate 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.

John Barry is vice president of the Southeast Louisiana Flood Protection Authority-East and author of “Rising Tide,” a book about the Mississippi River flood of 1927.