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

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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  • Chris McLindon

    Melissa Landry, executive director of the Louisiana Lawsuit Abuse Watch wrote an article entitled “Levee Board Lawsuit Latest Chapter in Trial Lawyer Greed” in the July 31 Louisiana Record. Daniel Fisher, who specializes in law and finance for Forbes Magazine wrote and article entitled “Swamp Thing: Lawsuit Blaming Oil Companies for Wetlands Loss Might As Well Blame the Plantiffs”. Lisa Rickard, president of the U.S. Chamber Institute for Legal Reform, wrote an article in Nov 5th Shreveport Times entitled “Lawsuit Abuse Jeopardizes Bright Energy Future for LA”. All of these articles do an excellent job of discussing the fallacies of the lawsuit, but they all also miss a much larger point. The elephant in the room in this conversation is that coastal restoration doesn’t work. The suit seeks monetary judgement against oil companies in order to fund coastal restoration projects that are supposed to rebuild the marsh and provide flood protection to residents of within the levee district. Coastal restoration projects have been operational within the district for decades, and they can all be characterized in the same way – they are complete and total failures. This cannot be refuted with sound scientific data. The Caenarvon, Davis Pond, Bayou Dupont and the West Bay Diversion are the largest restoration projects in the district. The have cost something approaching half a billion dollars, and not a single one of them can be said to have reduced the risk of flooding to residents in any way. There is no sound scientific reason to believe that any of the proposed restoration projects which this suit seeks to fund will perform any differently. The one thing that John Barry and Garret Graves have in common is that they are both being disingenuous in stating that coastal restoration projects have or ever will reduce the risk of flooding. The people of Louisiana deserve better than that.

  • John

    You are correct that there is no set of projects which will create enough new marsh to stem the tide of constant erosion. You are incorrect that the current and future projects are not worthwhile, they can and do slow erosion and in some cases rebuild actual marsh. Slowing the land loss is of value and does reduce the risk of flooding, this is a rather obvious point which you completely ignore. Have there been design problems, cost overruns and operation issues on these early projects, yes, but this is not an exact science and is certainly not reason enough to just give up. Let’s fall into the Gulf in 200 years, not 40!

  • Chris McLindon

    The Davis Pond Diversion cost over $200 million and the Corps reported last year that it failed to create any new marsh (pre-construction estimate was 9,000 acres). The West Bay Diversion cost $25 million to construct and an additional $12 million to dredge the downstream Pilottown Anchorage (likely to be a common reoccurence). It has created 11 acreas of emergent land during the 2011 flood, but this was a 100 year flood, and it is unlikely to maintain that pace (pre-construction estimate was also 9,000 acres). The Caenarvon Diversion cost $25 million in 1992; it has created no new marsh, and Gene Turner from LSU has deternined that the concentration of land loss around its outflow channel during Katrina was due to the excess nutrients carried by river water being introduced into the salt marsh weakend the roots bases, and they were ripped up by the current. Bayou Dupont is a marsh creation project that has built up 360 acres on land adjacent to the River by pumping sand from the River into the marsh. It cost $27 million, and is generally considered to be too cost inefficent to pursue. The wetlands are subsiding at a rate of 17 square miles per year. These type of projects, which the suit intends to fund, are completely hopeless in the face of this rate of submergence. The marshes of south Louisiana have been “falling into the Gulf” for thousands of years. The history of human interaction with the River and the coast is that every time we attempt to improve nature, we make it worse. Coastal restoration is no different.

  • John

    The Davis Pond Diversion was never intended to create new marsh, it is a freshwater diversion and carries no sentiment. It’s intended to rebuke saltwater intrusion. There has never been any estimates that 9,000 acres of marsh would be created by any of these individual projects, where are you getting these figures? Based on your presumptions the marsh should not exist because fresh water and sentiment doesn’t create marsh, but that’s all the river ever supplied. Diversions have been costly and have had design issues, maybe they are not the answer, that’s for the geologists and hydrologists to determine.

    If you knew what you were talking about concerning this suit you’d know that it is also intended to defray the increased costs of insurance paid by Louisiana residents because of the negligence of the defendants. If you believe companies should be allowed to dredge canals without permits or fail to follow the requirements of permits issued, such as restoring the areas they abused while drilling, then that’s your position. You are in the minority. I’m no fan of trial lawyers, but as a fisherman in east Plaquemines the last 30+ years I’ve seen firsthand what’s transpired as a result of man made canals and laying of pipeline. If there is no solution to the marshes collapse then all property south of the lake will not be insurable, and thus worthless in 50 – 100 years. The oil and pipeline activity has greatly increased the rate of the marsh collapse according to any recognized expert on the matter.

    We have land sickness with approaching death caused greatly by identified companies. If that’s not a liability which should be examined in court then I don’t know what is?

  • Chris McLindon


    The West Bay Sediment Diversion is diverted into open water, it is clearly intended to create new marsh. The projected net benefit was 9831 acres in 20 years. After 10 years it has created 11 acres – a long way to go. The obvious question is – if you can’t build new marsh with a diversion just above head of passes, how will you possilbly build it anywhere else?
    The Davis Pond claimed to “preserve” 33,000 acres of marsh by the introduction of water and sediment. The ponding area (where one might logically assume new marsh from the sediment was intended to be created) is 9311 acres. No new marsh has been created, no marsh has been preserved. Like the Caenarvon, it is most likely that the introduction of polluted river water is actually damaging the marsh.