Suing oil and gas interests to save the coast: author John Barry weighs in

Oil service canals in the Barataria Basin show the ravages of an industry that has given much and taken even more from Louisiana.

Dr. Terry McTigue / NOAA

Oil service canals in the Barataria Basin show the ravages of an industry that has given much and taken even more from Louisiana.

The Southeast Louisiana Flood Protection Authority-East has filed a controversial lawsuit seeking to extract a settlement from oil, gas and pipeline interests in compensation for the industry’s long-term damage to Louisiana’s fragile and rapidly collapsing coast. The administration of Gov. Bobby Jindal claims that the Flood Protection Authority lacked the authority to file the suit and wants it withdrawn on grounds that it is hostile to oil and gas interests and possibly inimical to other state efforts to secure funding for coastal restoration.

In recent days, author and Flood Protection Authority vice chairman John Barry has spoken in defense of the suit before a joint legislative committee and the Baton Rouge Press Club. His remarks have been edited and updated to include developments at a Wednesday meeting of the state’s Coastal Protection and Restoration Authority, of which Barry is a member:    

What we’re doing is simple: We want to save Louisiana, at least part of it.

First, the background:

We are an independent board, created by a constitutional amendment, which passed after Katrina with 81 percent of the vote. The amendment envisioned a board of experts who would try to prevent another such catastrophe — a board of experts independent of political influence.

John Barry, Flood Authority vice chair

John Barry

A special nominating committee was created, including deans of engineering schools in the state, representatives of engineering and scientific societies and good-government groups.

This committee sends nominees to the governor, who must appoint someone from the nominees, and the senate confirms.

To guarantee we see the big picture, that we are not parochial, the law requires us to have four members from outside our jurisdiction.

Our board has expertise in engineering, meteorology, coastal science, oceans and the history of the levees. From North Carolina we have the co-author of the most advanced storm-surge model in the world, from California the head of that state’s flood plain management, and another board member has written textbooks used in college courses. I have the least technical training of anyone on the board, but I routinely participate in working groups at the National Academies of Science. I am the only non-scientist ever to win an honor given by the National Academies for contributions to water-related knowledge. I also serve on advisory boards at MIT’s Center for Engineering Systems Fundamentals and Johns Hopkins’ School of Public Health Center for Refugees and Disaster Relief.

We all take our task very seriously and very personally. Two board members lost everything they owned in Katrina.  Several of us know people killed in that storm.

Flood protection has nothing to do with partisanship, I might add. We are a majority Republican board, including one vocal Tea Party member and at least one other member who leans that way.

With unanimous support, we filed the lawsuit seeking compensation from oil, gas and pipeline interests because we don’t want other people to die in a hurricane or have their homes and livelihoods destroyed.

Those who created the Southeast Louisiana Flood Protection Authority-East wanted to insulate us from political pressure — exactly the kind of pressure exerted on us by the governor and others in the past month.

We have gotten criticism from public figures but a lot of support from the public. We believe the public understands. The more people  hear what we’re doing and why, the more support we have.

The first point I want to make is that no one has criticized the substance of our lawsuit. Let me repeat: No one has criticized the substance of our lawsuit.

Problem uniquely our own

Louisiana isn’t like any other state. Twelve thousand square miles of Louisiana — all the way north to the Arkansas border and our entire coast — was formed by sediment coming from the Mississippi River.  We are not like Texas or Mississippi, and certainly not like Maine and Oregon.  We have no rocky cliffs on the coast.  We have mud held together by roots.  And that mud is melting into the ocean.

Our board has never said oil, gas and pipeline companies are solely responsible for the loss of nearly 2,000 square miles of our state in the past 80 years or so. There are multiple causes.

It’s the industry which likes to blame one cause — the levees — as the source of all problems, but it isn’t just levees. If it was, the western part of the state wouldn’t have lost any land at all. The western part of the state is outside the river’s flood plain. Even if there were no levees, floodwater from the river would never reach that area. If levees were the only problem, out west they would have no land loss. Instead, they have plenty of it.

In fact, the multiple causes for land loss include levees, six dams in Montana and the Dakotas which retain almost a third of the sediment that used to flow down the river, benefits for the shipping industry, such as the Gulf Intracoastal Waterway and the lethal Mississippi River Gulf Outlet — and the oil and gas industry.

The fact that there are multiple causes does not mean, however, that an entity responsible for part of the destruction should not be accountable for what it has done.

Let me quote something:  “Dredging canals for oil and gas pipelines … took a toll on the landscape … Canals and pipelines … criss-crossed south Louisiana marshes … The coastal marshes were lost when spoil banks were left randomly throughout the area, drastically altering the natural hydrology … Saltwater intrusion increased and more land was lost … Canal dredging has had one of the most dramatic effects on wetland growth and regeneration … The marsh is unable to regenerate itself. [All of this amounts to] “industrial negligence.”

What I just quoted isn’t from our lawsuit. It’s from the state’s Master Plan for a sustainable coast.

The truth is the truth. Every scientist agrees that the oil and gas industry has done extraordinary damage to our coast.  Even the industry concedes it. One U.S. Geological Survey study, a study that included input from industry scientists, concluded that 36 percent of the damage statewide comes from industry. Other estimates put it much higher.

It is also a truth that the industry operated under permits which required them to minimize damage and repair it when they finished.  The industry has failed to obey these requirements.

Those are the two fundamental facts which drove us to consider taking legal action. There is a third truth. Everyone on the board has wondered how we can meet our responsibilities. Our job is not simply to operate and maintain a levee system handed to us by the U.S. Army Corps of Engineers.  Our job is protecting people’s lives and property.

We just conducted a study of the land bridge extending into Lake Pontchartrain from New Orleans East. If that narrow spit of land disappears, the ocean will roar unchecked into the lake and threaten the lives and property of people who have never been threatened before. Reinforcing that alone would cost $1.2 billion.

We don’t have that money. As we look at the tremendous expenses necessary to maintain minimally adequate protection, we see nothing coming in.

One of our critics is quoted as saying: “We have a Master Plan.  Let’s give it a chance.” I absolutely agree with that statement.  Let’s give it a chance.  Nothing we do is at variance with the state’s Master Plan. We want to carry out the Master Plan.

Let me repeat: Nothing we’re doing is inconsistent with the Master Plan. What we’re doing will let us carry out the Master Plan in our area.

Here’s the problem: The Master Plan has no funding.

Overarching duty: protecting the public

The Flood Authority board believes that for our jurisdiction we have an absolute duty to pursue this case. If we don’t do it, we see no way to get the money needed to protect the public.

Our case is based on the fact that we are forced to maintain and possibly build more elaborate flood protection defenses because of land loss. The industry’s failure to comply with permits — its failure to do what they voluntarily agreed to do and to obey the law in exchange for taking hundreds of billions of dollars out of the state — has destroyed land.

That land loss means there’s no buffer to block storm surge, and that sends more water pounding against our levees. As the saying goes, the levees protect the people, and the land protects the levees.

The land is disappearing so fast that by 2100, if nothing is done New Orleans will be basically an island. The levees will be beach-front property. Much of the rest of the Louisiana coast will simply cease to exist.

Louisiana law also embodies a concept going back to the Romans called “servitude of drain.”  This prohibits one party from increasing the natural flow of water from its property onto another’s.  The destruction of land is sending more storm surge pounding against our levees.

We believe the oil and gas industry violated the law, and these violations have endangered the people we are responsible to protect.

Our suit does not ask that the industry restore the entire coast. But they must restore the part of the coast they destroyed. They must fix the part of the problem which they created.  That’s all we want: Fix the part they broke.

If some areas are impossible to fix, industry should compensate us so we can upgrade flood protection to take care of the increased risk they caused.

We decided unanimously to file the lawsuit, and we unanimously reaffirmed our decision last week.

We have been called a rogue board, but we first informed Garret Graves of our plans Dec. 4, 2012. Garret is head of the state’s Coastal Protection and Restoration Authority. He attended the Flood Authority’s executive session Jan. 17. We informed him several more times of our intent to proceed with a lawsuit. We’re an independent, non-political board. We want to work with everyone, but ultimately each of us is responsible to his own conscience, and we did not operate in stealth.

Suit attacked from many angles

We have been told we don’t have the authority to sue.  We welcome a court challenge to that.  You notice for all the talk — and there has been a lot of it — no one has filed for a declaratory judgment against us.  They know the court will uphold our authority.

We have been criticized for trying to collect from an industry which was complying with the law at the time it conducted its operations. We believe that they were never in compliance with the law.

We have been criticized on grounds that we are interfering with efforts to get a larger share of federal revenues from offshore drilling. We absolutely support that effort but don’t believe our lawsuit interferes with it. [Louisiana’s U.S.] Sen. Mary Landrieu, the sponsor of that legislation, has said Louisiana should pursue coastal restoration everywhere, including in the courts.

We have been told our suit may interfere with the BP trial. Our attorney checked with the attorney representing the state and was told our suit would not interfere.  How could it?  The BP trial will be over long before our trial starts. And at Garret’s request we waited until the first phase of the trial was over before filing suit.

We have been told the state has litigation plans of its own, which our lawsuit interferes with.  Those plans have been described to us, and in our board’s unanimous opinion our suit does not interfere; in fact it could complement the state’s strategy.

We have been told that we’ll cost the state jobs, but the reality is the oil and gas industry will stay as long as there’s oil and gas here.  Look at BP.  The state is suing BP.  Every parish is suing BP.  Hundreds of lawsuits have been filed against BP. And BP just sued the federal government to be allowed to bid on offshore tracts.

And as far as jobs go, no one talks about the jobs a major coastal restoration effort would create. These are not just construction jobs or transitory jobs.  We have the potential to be the world leader in the science and engineering of this kind of work.  We are the point of the spear, but every coastal area in the world will be dealing with problems like ours soon. We have the potential to produce great jobs, important jobs.  We can create a silicon valley of water-related expertise.

Every one of the criticisms comes down to one thing: politics. But we are currently an independent board, specifically designed to do what politicians will not or cannot do.

They used to say, “The flag of Texaco flies over the Louisiana capitol.” People have to ask themselves, is that still true?

Legally speaking, the Flood Authority’s action involves our jurisdiction only. We are not acting for the state or for any other parish or levee board. Ironically, our jurisdiction has lost much less land than others.  Much less.

Even industry’s future is at stake

What’s at stake is the future of Louisiana, the very existence of Louisiana as we know it. Everything is threatened. Our ports are threatened. Our way of life is threatened.

If you hunt anywhere near the coast, where will you hunt?  What will you hunt? What happens to all the migratory birds that use our marsh? If you fish, where will you fish?  Nearly every species in the gulf depends on the Louisiana marsh for some part of its life cycle. And if you live on the coast, where are you going to live?  What will happen to your community?   Because you won’t be able to live where you live now.

The U.S. Geological Survey is remapping the coast.  They’ve finished only one parish, Plaquemines.  They took 31 names off the map. These places no longer exist — 31 names in one parish, gone from the map. Many more names will come off the map as more parishes are mapped.

This lawsuit presents a choice:

Protect the industry from having to live up to its word and obey the law, or protect people’s lives and property from the crawling death of a vanishing shoreline and the violence of a hurricane storm surge. Protect the industry, or protect Louisiana’s way of life.

It’s really that simple.

Nearly everyone in Baton Rouge seems afraid of the oil and gas industry. They never talk about the elephant in the room, about the damage the industry has done to the coast. Our current status as an independent board allowed us to take the action we did. Because of it, the elephant isn’t in the room anymore.  Right now it’s stampeding down the street. The issue cannot be ignored any longer.

Too many people in Louisiana, too many things, are threatened.

The industry itself is threatened.  Chris John, head of Mid-Continent Oil and Gas Association, says the industry recognizes the need to “protect critical oil and gas infrastructure from storm surge,” adding that “our viability depends on” the coastal buffer.

The industry wants it fixed, but they want taxpayers to pay for the damage they did, either in taxes or flood insurance rates. If we succeed in getting a bigger share of offshore revenue, we’re getting it from the federal treasury.  From taxpayers in Rhode Island and Oregon — and in Louisiana. The industry won’t be paying a penny more.  If the money comes from state or parish funds, it comes only from Louisiana taxpayers.

The wealthiest industry in the world wants taxpayers to pay to fix what the industry broke. We say to the industry: Fix what you broke.

I am not against the industry.  I recognize it’s enormously important to the state and in the country.  I’m proud of our ability to produce gas and oil, to let Americans heat their homes and drive their cars with what we produce. Years ago, I worked for an oil company — one of our defendants. I also applied for and got a job at the American Petroleum Institute, though in the end I didn’t take it because I would have had to give up my writing. But I appreciate the industry for treating me well when I did work for it.

We’re not charging that the industry has done nothing to help.  They have done things to help. But they haven’t done enough. The industry isn’t responsible for all the land loss, but it is responsible for some of the land loss.  It has to fix the part of the problem it created.

Compared to the size of the industry, the wealthiest in the world, the burden will be small. To Louisiana, the benefit will be enormous.

The Master Plan has no funding.

BP money won’t be enough. Even if we win, our lawsuit won’t be enough either, not even for our area. But if you start putting different funding together, we may get enough —  enough to save what can be saved. If we don’t, most of the coast, most of the people who live there, will be gone.

Our board is not the problem. Land loss is the problem, and getting the industry to fix the part of the problem it created will go a long way toward the solution.

Task force proposed

The governor wants us to withdraw the lawsuit. Last Thursday our board unanimously passed two resolutions. The first affirmed the suit. The second said we’d consider a 45-day pause in the substantive part of the suit in return for a good faith effort to create a task force to address the problem.

A pause was Garret Graves’s idea. We had hoped the CPRA would look upon our proposal as what it was, an olive branch.

We proposed a process that would result in oil being at the table to discuss a resolution to save lives and property — including industry’s own property. Our lawyers had already agreed, in the event of a resolution in this working-group process, to have their fee determined in arbitration with industry — and paid by industry, not taxpayers — in accord with long-established principles of Louisiana law.

No lawyers hijacked this board. The idea came from us. With a task force in place, our lawyers would stand down in accordance with our resolution.

The Coastal Protection and Restoration Authority (CPRA) met Wednesday. But apart from my own comments offering this pause — again, a pause which Garret Graves had suggested — there was not a single mention of it in a three-hour meeting, not one. The meeting ended with CPRA voting to oppose the law suit. But they still did not authorize taking legal action against the law suit.

I still have hope for a resolution.

In return for a major contribution from the industry, there are many things the industry wants from the Legislature which I would personally support. This, of course, is not up to me.  It’s up to the governor. He’s got tremendous abilities. Whether you agree with all his policies or not, there’s no question that when it comes to the coast he’s been a good governor.

He can be a great governor for the coast — a great governor period — if he steps in, brings everyone together and solves this problem.  It might make him the greatest governor in Louisiana’s history.

That’s what I want.  I want the governor to be great.

John Barry’s books include “Rising Tide” and, more recently, “Roger Williams and the Creation of the American Soul.” A member of the Southeast Louisiana Flood Protection Authority-East, he also serves on the state’s Coastal Protection and Restoration Authority.

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  • La Vieux Carré Times

    Thanks, very informative; my environmentalist friend the late Donald Landry would have applauded the board’s efforts. To me, no amount of money will repair the damage to our coast caused by the Standard Oil man (oh, one note of caution: they snuffed-out Huey Long for suggesting what your suit seeks). Civil suit? No, I say criminal murder charges — not for killing Huey, although… — for the outright unconscionable slaughter of Louisiana’s coastline. Maintain their infrastructure? Quite the opposite — Louisiana needs a State takeover of the murderous oil and gas industry within our border and 3 miles out into the Gulf. Meanwhile, let’s take a moment to remember a little bird my musician friend saw land, and slowly die, “all covered in black” shortly after the BP spill: http://www.youtube.com/watch?v=qOgJupUcpkQ

  • Thad Daly

    Why are they suing the oil industry when by their own number oil industry caused only 36% of the damage and not those who caused the other 64%? Because they would have to sue the Corp of Engrs and to win would mean the closing of the Morganza and Bonne Carre’ flood control structures and each year every thing south of Baton Rouge would flood–
    Land bridge outer side of Lake Pontchartrain – the oil industry had nothing to do with it’s destruction– In fact, and read closely the report above has very little to do with the oil industry. Has anyone even consider other causes such as the subsidence of the sediment in the GoM sedimentary basin or rising sea levels– here is a link for a study that no one has even mentioned

  • Nolaresident

    Well it seems my comment disappeared.

    I said I saw a similarity in what the Levee Board East is doing and in what had to be done in Appalachia with the coal companies and strip mining.

    Until the passage of SMCRA,( The Surface Mining Reclamation and Control Act), there was little that could be done to the coal companies to force them to return the land to as closely as possible to what was originally there.

    requires the operator to restore the affected land to a condition
    capable of supporting the uses it could support before mining, or to “higher or better uses.”[1] The operator must also:

    1.restore the approximate original contour (AOC) of the land by backfilling, grading, and compacting;

    2. minimize disturbances to the hydrologic system by avoiding acid mine drainage and preventing additional contributions of sus­pended solids (sediments from erosion) to nearby streams and other water bodies;

    3. reclaim the land as soon as practicable after the coal has been extracted, and even as the mining operation moves forward; and

    4. establish a permanent vegetative cover in the affected area.

    If a site’s annual rainfall exceeds 26 inches, the operator must ensure that the land remains successfully revegetated for five years after all seeding, fertilizing, and irrigation has ended.
    If the annual precipitation is less than 26 inches, the operator is
    responsible for successful revegetation for 10 years. Some 15 other
    performance stan­dards apply to all surface mines. For example, standards are established for blasting, for wildlife protection, for road construction and mainte­nance, and for disposal of excess spoil material. In addition, special performance
    standards apply to particularly vulnerable areas — alluvial valley
    floors in the West, prime farmland (most commonly found in the coalfields of the Midwest), and steep slope areas (which dominate Appalachia).

    From: https://sites.google.com/site/stripmininghandbook/a-brief-review-of-smcra

  • Darryl Malek-Wiley

    Dear Thad Daly,

    Louisiana coastal scientist have estimated the impact of Oil & Gas Canals and the sinking wetlands due to extraction of the Oil & Gas at between 36% and 60%. Most news stories use the lower number.

  • Jeanne Nathan

    One of the more cogent, rational, and important advocacy statements I have ever read. Crosstown Conversations put the entire video of the news conference announcing the suit on our channel on You Tube. It is one of the most effective news conferences I have ever attended. See it to fully appreciate the power of the words in Barry’s statement here.

  • Thad Daly

    Still when will Morganza and Bonne Carre be closed– they rob the delta od sediment

    And who will be sued for natural subsidence and tectonic movement

  • dimdingledon

    There is no doubt that the oil industry has casued damage to our coast. There also is no doubt that the confinement of the Mississippi River to the limits of the levees for the benefit of the shipping industry, starving the marsh of fresh water and sediment has caused the majority of the land loss. There also is no doubt that the SLFPA-E has failed to provide the promised oversight of the new levee system and has allowed the Corps of Engineers to construct another system that fails to meet the promised level of flood protecion. We were promised multiple lines of defense and a system that would protect us agaisnt at least the 100-year storm. We got neither. And it was the direct task of the SLFPA-E to provide oversight of the Corps’ work to insure we received these. One year after this board was created scientists from LSU presented the scenario of land loss and the time Louisiana had to correct the effects of land loss (an estimated 10 year window of opportinity). The SLFPA-E sat for years and did nothing. As a result the problem continued to worsen. The Corps of Engineers was tasked by Congress to come up with a plan, but did not, Instead they just accepted the plan the state had. The problem with the CPRA plan is it fails to consider all options. Mainly the removal of levees along the Mississippi River south of New Orleans. Just another protection of another Louisiana sacred cow – the shipping industry. This option puts more fresh water and sediment into the marsh than any other option at a fraction of the cost. It also reduces the flood threat caused by storm surges traveling up the Mississippi River. The SLFPA-E has also failed to review the work of the Corps of Engineers from day one. For years they have just accepted whatever they were told by the Corps. The SLFPA-E did not even review the storm surge modeling of the Corps until years later even after the construction was completed. Had they done so, they would have seen the new levee system failed to provide the promised level of protection. So it is ironic that Barry and the SLFPA-E now claim to have the duty to protect life and property. They didn’t have that concern when they had the opportunity to review the storm surge modeling and the design of the new levee system. They just approved whatever the Corps submitted. Regarding this issue of the coast, one need only ask the SLFPA-E andd Barry what is the assumed coastline in the storm surge model and how does it compare to the levee loacations and the existing coast. The results will give the real level of committment of protecting our coast and protecting us from floods. First, the bathymetry used in the Corps modeling was outdated, so the levee designs were going to be based on faulty information, but the SLFPA-E allowed the system to be designed based on this faulty information. In fact at the next SLFPA-E Operations Committee meeting they will discuss new bathemtry surveys for Lake Pontchartrain. (Kind of late for the dance). Showing the alignment of the levees, the coastline assumed in the storm surge model, and the actual coastline will show whether the input into the model was relfective of the actual conditions or whether the storm surge model under estimated the storm surge heights based on incorrect data. This is something Barry and the SLFPA-E had direct control over reviewing and failed to perform that task. For this reason, Barry and the other four members of the SLFPA-E with expired terms should not be re-appointed.

  • dimdingledon

    Here it in their own words, how they have not performed the promised oversight of the Corps’ work and try to deflect responsability.


  • dimdingledon

    The oil and gas companies will probably ask each SLFPA-E board member that filed this suit one question, if land loss was so critical in providing flood prtection, why does your storm surge modeling and your proposed restoration plans not reflect that critical element? And if the SLFPA-E coach them up for an answer, the oil company attorneys need only look at the past actions/inactions and decisions of this board regarding land loss, modeling and levee designs. I think it will be embarassing for the SLFPA-E, the agency we were promised would be made up of expert scientists, but was eventually led by an accountant and ex-football coach.