Ex-flood authority leader picks apart arguments against suing oil interests

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John Barry

John Barry, oustwd as Flood Protection Authority vice chair, plans to continue pressing lawsuit against oil and gas interests.

John Barry, ousted as Flood Protection Authority vice chair, plans to pursue a lawsuit against oil and gas interests.

From the moment that the Southeast Louisiana Flood Protection Authority—East filed its lawsuit against 97 oil, gas, and pipeline companies, the state has opposed the lawsuit with all its energy. Governor Bobby Jindal has gone so far as to replace three board members who supported it—including me.

Since a 6-3 majority of the board still supports the suit, he has also promised to push legislation to kill the litigation when the Legislature convenes next year.

Yet each public comment by the administration seems to make our case rather than undermine it, and with each passing day the reasons for the state’s opposition seem weaker and weaker — and more convoluted. Increasingly, the state’s reasoning resembles an Escher drawing more than a logical argument.

The latest comments come from Garret Graves, head of the state Coastal Protection and Restoration Authority and the governor’s coastal adviser. Earlier, speaking about the industry’s destruction of coastal land, Graves said, “I’m the first one to say there’s liability there. The scars are on the land.” Now, when asked to respond to a report in The Advocate that Plaquemines and Jefferson parishes may file similar lawsuits, he said, “Businesses should be operating in compliance with existing regulations.” (Editor’s note: The suits were filed Tuesday, according to LaPolitics.)

As a statement of fact, the oil companies have not complied with regulations. That of course is a principal cause of action in the Flood Protection Authority’s  legal case; the goal of the suit is to make the industry comply. Once again, it seems that Graves agrees with the authority’s position. Once again, his opposition to its lawsuit makes no sense.

According to The Advocate, Graves justified his position by “stress[ing] several differences between the cases that would be brought by the parishes and the one filed by the Flood Protection Authority.” In reality, he identified distinctions without differences.

For one thing, he cited the fact that any parish action would be led by elected, rather than appointed, officials. That’s true, of course. But what difference does it  make? The Flood Protection Authority was established by a constitutional amendment which passed with 81 percent of the vote, and it is an independent entity with both legal standing and the authority to file suit. Its in-house counsel, the attorney general’s office, and the attorneys it hired to pursue the case all looked at this question independently and all independently concluded the board had the necessary standing and authority.

The governor did tell the press that the board lacks the authority to sue, and in response the board invited the state to challenge its authority in court. The state has declined. Even when, under Graves’s guidance, the state Coastal Protection and Restoration Authority passed a resolution opposing the lawsuit, the resolution did not authorize a legal challenge. There has been no court challenge to the board’s authority because the state knows it would lose and look foolish.

Graves, according to The Advocate, also noted that “state law allows parishes to enforce coastal regulations and force companies to comply with permits, and the parishes would not attempt to ‘apportion blame for coastal land loss,’ an apparent reference to the parishes’ focus on specific damage by specific companies.”

This suggests that the Flood Protection Authority’s lawsuit is somehow rhetorical and non-specific. If Graves believes this, he is entirely unfamiliar with the suit.

The board bases its case largely on permit language and state law — neither of which has the state ever even pretended to enforce — and the suit is specific in the extreme. The authority’s attorneys have analyzed down to the square foot which specific company operated in which specific area, for what specific length of time, what each specific permit said, what each specific drawing attached to each specific permit application describes, how wide each specific canal became, and so forth. Rhetoric may be good for press releases; specifics work better in court.

Finally, Graves also drew a distinction between the legal contracts signed by the parishes and the contract between the authority and its attorneys. The story reported that Graves claimed legal contracts “in the parish cases would not rely on contingency fees for the lawyers, while he said the flood protection authority’s suit … gives lawyers a sizable percentage of any proceeds.”

This is technically accurate but highly misleading. The fees for the parish attorneys will be determined according to well-defined guidelines; in past cases these guidelines have always led to legal fees ranging from 25-to-40 percent of the money recovered. The contract for the Flood Protection Authority attorneys pays them from 32.5-to-22.5 percent, declining as the amount of recovery increases.

There is one more twist to the story — perhaps the most important one. The moment another lawsuit is actually filed, especially if a parish files it, the political equation forever changes. It will become vastly more difficult to kill the Flood Protection Authority’s lawsuit in the Legislature. And as more suits are filed, it will be more difficult still.

Ironically, the more suits are filed, the more likely it also becomes that none will be decided in court — for the best of all reasons. The Flood Protection Authority has standing to sue only for its own jurisdiction, but the problem is statewide.

All of us who voted for the suit always hoped that the board’s action would precipitate a statewide solution to a statewide problem. Virtually every public comment by any member of the board has called upon the governor to bring the oil and gas industry to the table and resolve the problem. As the number of lawsuits mounts, oil companies will eventually recognize that it is in their interest to sit down and work out a solution, with or without the governor’s leadership. That’s what I and my former colleagues on the board have always wanted: to solve the problem.

The governor seems to think the Flood Protection Authority’s lawsuit is the problem. He’s wrong. Coastal land loss is the problem. Let’s fix it together.

John Barry, levee expert and author of Rising Tide, the acclaimed history of flood control in the Mississippi River Valley, was ousted by Gov. Bobby Jindal from the Southeast Louisiana Flood Protection Authority-East after spearheading the agency’s lawsuit seeking damages from the mineral extraction industry for coastal destruction.     

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