Canals created for navigation and oil and gas pipelines cut through the marsh off the coast of Louisiana, seen in 2010.
The prognosis for the Louisiana coast is grim: fast disappearing, industry canals widening, sea levels rising, storm floods increasing, and a state agonizing slow to acknowledge even the fact of climate change. Responses have come on two fronts, in lawsuits seeking restoration monies from oil and gas companies for their contribution to coastal loss (up to 80 percent of it in some parishes), and in state master plans that, with increasing focus, attempt to stem the tide. Both feature Tulane law alums on all sides.
THE LITIGATION: GOOD IDEAS STAY ALIVE
When last seen, the New Orleans levee board (now, the Southeast Louisiana Flood Protection Authority) had filed a lawsuit against 87 oil and gas corporations over the impacts of a host of oil and gas pipelines, access canals and drilling sites between the City and the Gulf. It alleged what has become a commonplace here, that these activities destroyed the 50-mile storm buffer below New Orleans, putting City protections going forward at increasing cost … and risk.
As things turned out, the case never got to trial. Removed from state to federal court (on the dubious proposition that state tort and nuisance issues were federal), it was then dismissed on the grounds inter alia that there was a “lack of propinquity” between the wetland loss and the City’s levees, and that a statute specifically protecting levees (although contained in a flood control act) applied only to navigation structures instead. . Which would have ended the matter, but didn’t.
Starting long before the levee board case, private landowners had begun suing oil and gas companies for similar damage to their own wetlands. These “legacy” cases dribbled forward with mixed results until two major verdicts against Shell and Exxon-Mobil awards shook the state into action, pitting two state icons against each other, private property rights versus oil and gas. In compromise, these cases continue but under conditions for state approvals that soften the remedies.
Following this precedent, coastal parishes also began filing claims for harms to parish resources. The latest count is up to six parishes, with two more pending in Lafourche and New Orleans. Governor John Bell Edwards (a former state senator who at one point in the debate over industry proposals to kill these suits turned to his colleagues and asked (rhetorically): “Who runs this place?”), moved to intervene in them on the parishes’ side, and after a kerfuffle with the Attorney General, has formally joined them.
And so, the battle continues. Amidst the fray it is easy to lose sight of a principle rather elemental to law and a fair society: You break it, you fix it. Whether this applies to the most powerful industry in Louisiana remains to be seen.
THE MASTER PLAN: NEW IDEAS GROW HARD
The first plan to save the coast was not prepared by the State of Louisiana. Rather, it was put together in the 1980’s by several coastal scientists, environmental lawyers (including the undersigned) and public interest groups. Called “Here Today and Gone Tomorrow”, it proposed three remedies: open up the levees, backfill the old canals, and limit the new ones. All remain available today.
In 2017 the state issued its third, 5-year coastal master plan and it does one thing well: It tells the truth about sea level rise and it is daunting. Even were the plan executed (estimated cost: $50 billion), we will experience a net loss of over 2,000 square miles in the next forty years. Touted as a “Blueprint for Success”, this is apparently what success means. Even if the needed monies, magically, appear.
A major element of the plan, indeed its most expensive project, is a $15 billion (and rising), 50-foot high,100 mile long, levee along the Gulf of Mexico, sticking out into the water like a glass jaw. The probabilities of building and maintaining such a structure on sinking soils, against rising seas, and facing major hurricanes are at best conjectural, but big-ticket items have their own momentum. Seemingly beside the point is that the levee threatens over 100,000 acres of wetlands, more than the entire plan aims to restore. .
There are also items that the new plan, like its predecessors, fails to touch at all. One is oil and gas, where its section on financing describing every possible source of support mentions no contribution from industry at all. Nor does the Dead Zone at the mouth of the Mississippi, which reached an historic high this past year, fare better. Louisiana has even gone to court to prevent the federal government from curbing the nutrients from upstream states that are causing the problem, which simply perpetuates the problem.
Most problematically, the master plan fails to address the consequences of the very thing it is predicting. Sea levels are rising. The rates of rise are rising The coast is sinking. Communities are already at risk. The best the 2017 plan can offer them is an unspecified, unfunded, community “dialogue”. What they need is a real option so that they too can plan. One hopes that the next five-year plan, in 2022, will offer it to them.
Oliver Houck
