John M. Barry

In 2005, after Hurricane Katrina, Louisiana voters approved a constitutional amendment that created the Southeast Louisiana Flood Protection Authority-East. This board oversees levee districts protecting the east bank of the greater New Orleans area and its members are professionals whose expertise includes engineering, storm surge modeling, coastal science, river hydrology, levee history, risk communication and meteorology.

The authority takes its mission to protect the public seriously. Because of that, with reluctance but unanimous agreement, on July 24 we filed a lawsuit against Exxon Mobil, Chevron, BP, Shell and 93 other oil, gas and pipeline companies for destroying the land and marsh buffer that once provided natural protection to New Orleans from hurricanes.

Destruction of buffering coastal lands by the industry is even greater west of the river, and we hope and expect that any final resolution of the issue will help not just greater New Orleans but also those areas damaged even more than ours. For this lawsuit is not about money. It’s about survival. And I would like to propose a solution outside the courtroom.

As most readers know, approximately 1,900 square miles of Louisiana’s coastal lands have disappeared in the past 80 years. This land loss is continuing and, coupled with sea level rise, if nothing is done most of Louisiana’s coast will simply disappear. This would be disastrous for the country and the state — and particularly the defendants in the suit.

Chris John, head of Louisiana Mid-Continent Oil and Gas Association, wrote in The Times-Picayune and last week that coastal lands “protect critical oil and gas infrastructure from storm surge,” adding that “our viability depends on” the coastal buffer.
Several factors have contributed to land loss, and the oil and gas industry is by no means responsible for all of it. But even the industry recognizes it is responsible for much of it. The industry has dredged 10,000 miles of canals and pipelines through the marsh, allowing saltwater intrusion, killing plants. Without their root structure holding the land together, it melted into the ocean. In addition, the extraction of an immense volume of oil and gas from beneath the surface has caused the surface of the land to sink. Scientific studies, which included industry representatives, concluded that the industry caused an estimated 36 percent of the land loss statewide. And Chris John conceded, “Industry recognizes its role” in the loss.

By destroying the land buffer that once protected populated areas, the industry has made the levee board’s task far more difficult and far more expensive. Don’t take our word for it. In 2006, when the state of Louisiana sued the federal government for revenue from off-shore production, Bob Bea, one of the most respected flood experts in the world and formerly Shell’s chief offshore engineer, stated that the industry “contributed significantly to the loss of natural defenses such as barrier beaches, wetlands, and marshes. In several important cases, it was the loss of these natural defenses that contributed to the unanticipated breaches of flood protection facilities that protected the greater New Orleans area during Hurricane Katrina and led to the repeated flooding during Hurricane Rita.”

Our suit asks the industry to fix only the part of the problem it created — a problem that continues to worsen. It is obligated to do so under the law. In most cases, industry operations were conducted under permits requiring companies to limit damage and restore the area when operations end. We ask them to abide by these contractual requirements, which they voluntarily agreed to. Louisiana also has a civil law tradition, and civil law doctrine since Roman times and Louisiana statutes include “servitude of drain,” which prohibits one party from sending more water onto another party. By destroying the buffering land, the industry has sent more storm surge against our levees.

We want the industry to restore the land buffer it destroyed where possible; for areas where restoration is impossible, we ask compensation so we can improve the flood protection system.

The industry strongly supports coastal restoration and participated in the state’s development of a Master Plan — widely praised by scientists and environmentalists — to address the problem. Despite admitting its responsibility for much of the problem and despite the fact that its “viability” depends on a healthy coastal buffer, however, it has made minimal contribution to fixing it. The wealthiest industry in the world instead wants taxpayers — readers of this column — to repair what it destroyed, and what it promised in writing to repair itself.

No one has attacked the substance of our claims. Gov. Jindal has charged that we lack authority to sue. We do have authority. We are an independent body created by a constitutional amendment, which passed with 81 percent of the vote. No lawyer “hijacked” us. The suit was our idea, and I personally engaged in a long search for the best lawyer I could find. The industry forced us to sue by refusing to take corrective action itself.

On Aug. 14, the Joint Transportation Committee had a hearing to learn more about the lawsuit. At the hearing my board colleague Steven Estopinal — an engineer whose home and business were utterly destroyed by Katrina — and I explained our reasons for acting. No member of the committee disputed that the industry had caused substantial damage.

I also noted that the governor had called for legislation to block the suit. I said we hoped the governor would intercede to solve the problem. And we are not the problem. The problem is the disintegration of the entire Louisiana coast. Our suit addresses only New Orleans. The entire Louisiana coast needs help. The governor has been good for the coast. I asked the governor to be great for the coast. I asked the governor to negotiate a solution that involves a substantial contribution from the industry, and gives the industry something in exchange. I would personally support such a negotiated solution. I hope the governor and the Legislature would, too. The possibility may now exist.

Before filing the suit I talked to someone who opposed our action and who told me he had suggested to an industry leader that it make a voluntary contribution to fixing the coast. I asked him what the response was. He shook his head sheepishly and said, “They’re not there yet.”

Perhaps now, facing this litigation, they’ll get there.

John M. Barry is vice president of the Southeast Louisiana Flood Protection Authority East and the author of Rising Tide: The Great Mississippi Flood of 1927 and How It Changed America. Barry spoke in Lafayette in March 2006 as part of IND Monthly's Lecture Series.

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