In Louisiana, an environmental lawsuit brings hope for a new chapter
A lawsuit against oil and gas companies for damage to the coast has become a symbol of the state’s environmental future
Oil and gas companies have cut countless canals through Louisiana’s wetlands in order to move oil and gas.
Louisiana is being slowly devoured by water. Hardly anyone disputes that. But beyond a shared sense of creeping panic, there’s little common ground in the state.
As over 2,000 miles of coast have been eaten away over the last 80 or so years, the state and federal government, oil and gas companies, activists and residents battled and bickered over funding the future of the state’s coast. So far, little has been accomplished.
John Barry, an author cum activist, hopes to change that.
Last July, Barry — then a member of the Southeast Louisiana Flood Protection Authority–East (SLFPA-e), a small Louisiana agency that oversees flood protection systems around New Orleans — helped lead the authority in filing suit against nearly 100 oil and gas companies. He and his cohort alleged that the companies, which ranged from state-based pipeline service providers to subsidiaries of multinational corporations like ExxonMobil, were responsible for decades of degradation to Louisiana’s coast. They said through exploration, canal dredging and drilling, the companies destroyed much of the state’s coast. And they claimed that as the governmental body tasked with overseeing flood protection for the New Orleans area, they had a responsibility to restore that coast in order to better prevent Louisiana's low-lying areas from being inundated during storms.
Over the last seven months, the lawsuit has burgeoned from a shot in the dark to a symbol of Louisiana’s future. Supporters say the suit proves that Louisiana is ready to move beyond an era when Texaco’s flag flew above the state Capitol. Detractors say it will scare away investment from the state.
Now as Barry waits for a federal judge to decide whether the suit should proceed in federal or state court, the government of Louisiana is in a race to stop the lawsuit in its tracks. With a new legislative session beginning this week and several bills that would kill the lawsuit slated for votes, he and his supporters fear they are running out of time. They say their only hope is that a judge gets to the lawsuit before legislators do.
“This is what the law is for,” said Barry, whose former life as a mostly reclusive author has been overtaken by his current role as the lawsuit’s most vocal defender. “The principal of American society is everybody is equal before the law. The idea that the legislature could intervene and kill the lawsuit — that, frankly, is a little daunting.”
John Barry at a news conference in November 2013.Gerald Herbert/AP
In December at the most recent court hearing for SLFPA-E v. Tennessee Gas Pipeline Co. et al. (the list of defendants is a page long), Barry sat in the first row of the courtroom, squished into a corner with the lawsuit’s second-biggest supporter, longtime flood safety advocate Sandy Rosenthal. Over 50 representatives and lawyers of the oil and gas industry took up the rest of the benches as the judge heard arguments for and against keeping the suit in state court or boosting it to federal court.
After the hearing, Barry and Rosenthal walked across the street to the Pan American Life Center and took the elevator to the 26th floor to the glass-walled offices of Jones, Swanson, Huddell & Garrison, the law firm representing SLFPA-E, to have a brief discussion about how the court appearance went.
The office has clear views of all of downtown New Orleans. Down Poydras Street is the district court where the lawsuit is currently held up. Around the block is the 5th Circuit Court of Appeals, where the suit may eventually be shot down. And just a few blocks away is the Mississippi River, where massive tankers carrying oil and gas snake their way daily up from the rapidly disappearing marshes in the Gulf, past the offices of Jones, Swanson, Huddell & Garrison and past New Orleans to the refineries on a strip known by many in Louisiana as Cancer Alley.
A little farther up the Mississippi is the capital, Baton Rouge. There, in the offices of Gov. Bobby Jindal and state lawmakers, is where the lawsuit might meet its fate.
“Oil and gas companies know if this stays in court, they’re going to lose,” Barry said. “The fight over this is going to be in the legislature.”
Jindal has made no secret of his disdain for Barry and his ilk.
But his words haven’t been enough to persuade the SFLPA-E to stop the lawsuit. In recent months, Louisiana’s government has tried to undermine the lawsuit, challenging its ability to hire outside lawyers, mounting a campaign against the state’s attorney general for supporting the suit, replacing authority members with people more in line with Jindal and even attempting to change the rules of how people are appointed in order to give the governor more control.
State lawmakers seem to be largely on Jindal’s side.
Shortly after the suit was filed, state Rep. Sam Jones put his allegiance bluntly, saying, “This House will probably not be punitive to the oil companies.”
And state Sen. Robert Adley, who co-owns an oil and gas consulting firm, said of the lawsuit, “the actions of the Louisiana attorney general and the Southeast Louisiana Flood Protection Authority–East might be the worst case of neglect and lawbreaking I have witnessed.”
Three bills introduced by Adley, which await votes in the next months, would effectively kill the lawsuit. One would allow the governor to reject any proposed member of the SLFPA-E for any reason, meaning Jindal could eventually stack the authority in his favor. Another would require any government authority to get the permission of the governor and attorney general before hiring outside council and would apply retroactively. The third would limit agencies from filing suits to force oil and gas companies to pay for work done under coastal use permits and would also apply retroactively.
Adley said he submitted the bills at the request of Jindal’s office.
“We’re outnumbered,” said Rosenthal. “When you’re filing legislation where the not-subtle-at-all purpose is is to stack the Flood Authority with people who are pro–oil and gas ... it’s like being hit by a two-by-four.”
The fate of Adley’s bills won’t be known for weeks or months, but the governor and his allies have already made inroads in their quest to stop Barry and his lawsuit.
In September an independent committee seen by many as closely aligned with the governor chose not to reappoint Barry to the SLFPA-E. His replacement and two others appointed to the authority by Jindal in October voted against reaffirming the authority’s commitment to the suit. Luckily for Barry and his supporters, the other five members voted in favor of the suit, but those members could be replaced if Adley’s bill passes.
Jindal cut $500,000 in funding to the SLFPA-E in November.
Adley’s and Jindal’s offices did not return requests for comment on this story.
Officials from the Coastal Protection and Restoration Authority, the agency responsible for maintaining and restoring the coast, have come out against the lawsuit, saying it would interfere with its $50 billion multifaceted plan to restore the coast.
Barry and other environmental activists have lauded the CPRA’s efforts, but he points out that no one knows where that $50 billion would come from. He said the SLFPA-E lawsuit could make a dent in that tab.
Sunset over wetlands in Barataria Bay in 2011.Mario Tama/Getty Images
But even if the CPRA or Barry somehow managed to get $50 billion to restore the coast, there’s a lot of disagreement over whether that would really fix the problems Louisiana faces. Even if all the canals were filled, plants and animals trucked in and sediment replaced, Louisiana would still lose miles of land every year.
Almost everyone agrees the oil and gas companies are responsible for some of Louisiana’s wetland loss, but it’s impossible to know just how much. Some say 30 percent of the damage can be pinned them; others say the number is closer to 80 percent.
Whatever the percentage is, there are still factors that are out of the control of the state government and have little to do with the oil and gas industry.
The first factor is global warming, which helps put miles of coast around the world underwater each year.
The second factor is the U.S. Congress, which mandated in 1954 that the U.S. Army Corps of Engineers keep the Mississippi River flowing in the same channels in perpetuity. The corps accomplishes this through a complex system of levees, gates and dams.
The diversion of the Mississippi is perhaps one of the greatest engineering achievements of modern times, but it also guarantees that much of the sediment that the Mississippi could take down to Louisiana’s marshes never makes it there. That means even if Barry’s suit helps the coast get fully restored to its former glory, the process of erosion will start all over again.
As Louisiana State University professor of coastal sciences Robert Twilley put it, “The reasonable thing we can do is find a footprint that’s more sustainable. But no matter what, the coast is never going to be restored back to what it was.”
But Barry thinks the Army Corps is almost irrelevant to the lawsuit. He and everyone else acknowledge that the suit won’t fix all of Louisiana’s coastal crisis. But he says the suit isn’t about solving every problem; it’s about changing an age-old dynamic in the state.
Rosenthal pointed to a poll commissioned by Barry’s nonprofit Restore Louisiana Now, which was set up to support the lawsuit after Barry was booted from the Flood Authority. The poll found that a clear majority of New Orleans–area residents thought oil and gas companies should help pay for coastal restoration.
“Twenty years ago, people didn’t even know what wetlands were,” Rosenthal said. “The poll is a clear indication the public believes the wetlands are in a crisis.”
In a state where activists have long been accustomed to losing their battles against oil and gas, Barry’s lawsuit and the support for it have been a jolt of energy for those who work on environmental issues. Despite the legislative onslaught to kill it, Barry and the SLFPA-E have many thinking that Louisiana has entered a new stage in its history unimaginable just a few years ago.
“There were many of us that thought that this was a hopeless cause,” said Marylee Orr, who runs the Louisiana Environmental Action Network and has worked on environmental issues in the state for 27 years. “Now we realize we’re on the precipice of one of the most important points in Louisiana’s environmental history. In 27 years, this has been our biggest moment, with the biggest potential to do substantive change.”