on August 10, 2013 at 7:15 AM, updated August 10, 2013 at 9:45 PM
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The Southeast Louisiana Flood Protection Authority East — the levee board responsible for protecting metropolitan New Orleans east of the Mississippi River — filed suit July 24 against Exxon Mobil, BP, Shell and 94 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 NOLA.com 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 off-shore 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 which 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 backfill and replant 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 article — 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 charges only 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.
The governor called for legislation next year to interfere with the suit. I ask the governor this: Why not solve the problem? Our suit addresses only New Orleans. The entire Louisiana coast needs help. The governor has been good for the coast. I ask the governor to be great for the coast. I ask the governor to negotiate a solution acceptable to everyone. I would support this. I hope the governor and the Legislature would, too.
Not long ago I talked to someone who 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 unhappily 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.