With the ink barely dry on a massive lawsuit accusing nearly 100 energy companies of devastating Louisiana’s coast and increasing the risk of catastrophic damage during a hurricane, political maneuvering over the case has already begun.
Gov. Bobby Jindal blasted the suit Wednesday, just hours after it was filed by Southeast Louisiana Flood Protection Authority - East, accusing the levee board of overstepping its authority and calling for its commissioners to drop the case. At the same time, the head of a major oil and gas industry association in the state raised the possibility that new legislation could be filed next year to strike at the suit through state law.
Meanwhile, levee board commissioners were digging in, preparing for a fight that they argued might not be popular in an oil-rich state but which they said is necessary to protect the New Orleans area.
In a statement late Wednesday afternoon, Jindal said the board was going beyond its authority and interfering with work being done by the state’s Coastal Protection and Restoration Authority.
“We’re not going to allow a single levee board that has been hijacked by a group of trial lawyers to determine flood protection, coastal restoration and economic repercussions for the entire state of Louisiana,” Jindal said.
While Jindal’s denunciation left little room for doubt on where the governor stands on the issue, the administration has no plans to directly interfere with the suit at the moment, Coastal Protection and Restoration Authority Chairman Garret Graves said. Instead, officials plan to talk to board members in hopes of convincing them the lawsuit will conflict with other efforts.
Graves also said that even if the board is successful in extracting billions from the oil companies, it won’t go far toward protecting the coastline, considering the state estimates it will cost $2 billion annually just to keep the coast from deteriorating further.
But Commissioner John Barry dismissed those claims, arguing the board must act or leave the New Orleans area in jeopardy.
“The board takes its responsibility to protect the lives and property of those within our jurisdiction very seriously,” Barry said. “To continue to ignore an obvious cause of damage to the coast would, in our board’s opinion, be a dereliction of our duties.”
The wetlands in and around St. Bernard and Plaquemines parishes and near Lake Borgne have been developed by oil and gas companies since the 1930s, and the areas are marked with the lines of canals and pipelines used to connect and support their wells. Those projects have long been considered a major source of coastal erosion, either by directly undermining the wetlands or because they allow salt water into the area that kills the vegetation that would otherwise slow the loss of land.
At least 10,000 miles of canals have been dredged in the state to support oil and gas extraction. Scientists have estimated the canals could be responsible for between 35 and 42 percent of the land lost to coastal erosion in Louisiana, with some estimates placing that figure significantly higher.
In turn, the loss of land — roughly 2,000 square miles of coastal wetlands have been lost over the last century — has been blamed for an increased risk of flooding in the New Orleans area since hurricanes lose power when they travel across land and the power of a storm surge can be blunted by wetlands and other barriers.
That trait is a key element of the levee board’s suit, which focuses on the increased cost of flood protection in a region that lacks those natural defenses.
The suit turns on three legal elements. In the vast majority of cases, energy companies were allowed to work in the wetlands under permits that required they maintain their canals and restore them to their natural state after they were no longer needed. None of those permits has been “closed,” which would signal that restoration had been completed, said Gladstone Jones, one of the attorneys in the case.
In addition, the suit references a 1899 law that forbids any projects that impair the effectiveness of federal levees.
Finally, the flood protection authority has argued they can sue under a centuries-old doctrine, known as “servitude of drainage,” that allows for damages to be awarded if a project increases the flow of water onto property owned by someone else. Because the levees would be impacted by additional storm surge, that principle — which does not require the properties to be adjacent — would come into play, Jones said.
The board is being represented by Jones, Swanson, Huddell and Garrison of New Orleans; Veron, Bice, Palermo and Wilson of Lake Charles; and Fishman, Haygood, Phelps, Walmsley, Willis and Swanson of New Orleans. The Fishman, Haygood firm represented The Advocate in a recent public records lawsuit against Louisiana State University.
Barry praised the previous efforts of Jindal and Graves to protect and restore the coast as he announced the lawsuit Wednesday morning, and in an emailed statement late in the day, said it “personally pains me to be at odds with them over this.”
“But our board is independent and arrived at its position based on its collective scientific and policy judgement,” Barry said.
The levee board’s independence may prove to be a crucial issue in the budding dispute. In its early responses, the administration has treated the flood protection authority as a rogue state agency acting without the authorization — and against the larger strategy — of other arms of the executive branch.
But the flood protection agency, which was built from long-standing levee boards in the wake of hurricanes Katrina and Rita, is treated under state law as an independent entity able to make its own policies.
That issue came to the fore in one of the contentious issues raised by the administration in its objection to the suit. In Jindal’s release, the governor raised questions about whether the board was empowered to hire special counsel without him signing off on the terms. State boards and commissions are required to get approval, in writing, from both the governor and attorney general.
However, state law treats the flood protection authority differently, lumping them together with school boards in a statute that requires only that the attorney general approve the terms of the contracts and verify if the lawyers hired are in good standing. That approval was granted on July 16.
Sen. Mary Landrieu, D-La., said she would wait to see how the suit played out but stressed the importance of a wide range of efforts to boost coastal restoration efforts, including legislation that would increase the state’s share of federal oil revenues and previous laws such as the Gulf of Mexico Energy Security Act and the RESTORE Act, which was passed in the wake of Deepwater Horizon oil spill.
“We need justice for the coast, our people and our communities,” Landrieu said. “Some of our local officials believe this suit has merit and time will tell.”
Sen. David Vitter, R-La., had not yet had a chance to review the suit on Wednesday and wanted to see the claims before commenting on them, according to his staff.
Jindal and Graves also noted that other methods should be pursued to improve the state’s coast, including holding the U.S. Army Corps of Engineers “accountable” for damage caused by the channelization of the Mississippi River, considered to be a major source of coastal erosion. In addition, they also promoted an increased share of federal revenue for the state.
Louisiana Mid-Continent Oil and Gas Association President Chris John, whose members are nearly all included in the suit, said the suit unfairly singles out the oil industry for activities that have been encouraged by both the state and federal governments and will contribute to a climate that could scare businesses away from Louisiana. Barry has dismissed that argument, saying that oil and gas companies would come to the state as long as there was oil to extract.
Legislation to pre-empt the suit could be coming, but with the next regular legislative session not set to begin until March, John said it’s not clear what kind of bills could be filed.
“As this suit plays out there certainly could be some legislation filed in the next session,” John said. “I don’t have any idea what that could be but I suspect there’s going to be some discussions about that.”
With a case that could stretch on for years, a delay of a few months before new legislation is passed would likely not prevent it from affecting the suit.
Jones said he and the board were preparing for whatever political fight might be brewing.
“I never underestimate my opponents and in this particular case that’s particularly true,” Jones said. “They have an extraordinary amount of political power and it would not surprise me if they attempt to use that political power in this instance. We’ll use every resource available to us to address the issues as they present themselves.”