A Student Perspective: Water law institute's work has had impact

Editor’s Note: Jonah Seligman researched the history and impact of the Tulane Institute for Water Resources Law and Policy as a third-year law student at Tulane Law School. A 2019 graduate, he is now a law clerk for Judge James Dennis of the U.S. Court of Appeals for the Fifth Circuit.

Coastal land loss in southeast Louisiana is “an existential threat, one of those the asteroid-is-coming kind of things,” Chris Dalbom (L ’12), Assistant Director of Tulane’s Institute on Water Resources Law & Policy said rather matter-of-factly. “This issue is unavoidable.”

I spoke with Dalbom at a conference table in his office in the Law School Annex on an afternoon when the spring weather had, characteristically, alternated between stormy and serene. Across the table sat Professor Mark Davis, the Institute’s Founding Director and a leading voice on water law in Louisiana. With decades of experience in the field, Davis has long reckoned with the doom-and-gloom forecasts about the coast’s future. Yet, he remains impressive, driven by a desire to inform the public and decision-makers about policy solutions to the problem of a vanishing coast.

Coastal Louisiana is disappearing at the rate of about a football field per hour. That’s on top of the nearly 2,000 miles of land that sank into the Gulf of Mexico over the past 80 years.

His motivation comes from a faith in the power of informed dialogue to bring about positive change. It’s an outlook that’s crucial for the leader of an outfit dedicated to producing legal and policy research on water issues and the coastal land loss crisis facing the state.

Davis started the Institute in 2007, in the wake of the devastation of Hurricanes Katrina and Rita. Those storms—which struck Louisiana in 2005 within a month’s span—prompted the university to take a greater role in shaping the future of the Gulf Coast.

With a front seat to the environmental problems facing the region, the Institute has led the way in educating the public and policymakers on these issues and, importantly, potential solutions—from how to fund Louisiana’s multi-billion-dollar blueprint to save the coast to how to resettle at-risk coastal communities to how New Orleans can learn to live with the reality of water in its midst. In this way, the Institute has tackled the toughest problems and charted a path forward.

Its pathbreaking work has had a real impact. During the last gubernatorial election, for instance, the four candidates participated in a debate on coastal issues. In discussing the cost of rebuilding the coast, every single candidate—three Republicans and the lone Democrat—put the price tag at $100 billion, a figure that came directly from the Institute’s research. The Institute’s reach is also felt in the accomplishments of the cadre of law students it has trained; these former research assistants and postgraduate fellows carry forth the Institute’s concern for environmental issues from their perches both in government practice and the private bar.

Yet, despite all its success, the Institute’s work has never been more urgent. Coastal Louisiana is disappearing at the rate of about a football field per hour. That’s on top of the nearly 2,000 miles of land that sank into the Gulf of Mexico over the past 80 years. In the decades to come, rising seas and a warming climate will hasten this coastal land loss. The consequences could be catastrophic.

Nevertheless, as Davis writes, it’s a “crisis in slow motion.” The most frightening effects have been far enough into the future that it can be easy for public officials to put off hard choices—those about funding coastal restoration or relocating communities—until another day.

The Institute’s efforts to delineate the magnitude of the problem, therefore, are crucial. What’s more, Davis and Dalbom have laid out, for both everyday citizens and government leaders alike, the choices available—and the trade-offs those choices entail. Like a trusted physician advising an ailing patient on treatment options, the Institute has set forth what can be done to mitigate—and live with—coastal land loss. Davis and Dalbom say that it’s up to us, our public officials, and our institutions to reflect on this counsel—and then act.

Paying the Tab: Financing Coastal Restoration

Fortunately for Louisiana, there’s a roadmap to stanch the sinking of the coast into the Gulf. This “master plan,” as the state calls it, is replete with public works to restore and protect the coast, from creating barrier islands, to rebuilding oyster shell reefs, to diverting Mississippi River sediment. Dozens of projects are already underway and dozens more are in the works.

Grounded in rigorous science and engineering, the plan is the state’s best, and the Institute believes its last, chance to slow the tide of land loss. The only problem? How to pay for it all.

Davis has calculated the cost of the master plan at around $100 billion. That’s $70 billion beyond what Louisiana has currently allocated. That gap—more accurately, a chasm—is more than double the state’s annual budget.  

The only dependable, large-scale financing source thus far has been money from a different sort of catastrophe, namely, the settlement from the Deepwater Horizon oil spill. Those funds, however, account for less than one-tenth of what’s needed. And, as Davis explains, such a financing stream is no better than “hoping you get run over, but not killed, by a wealthy motorist so that they’ll pay you a large settlement.”

Barring any similar calamities, Louisiana will have to get creative to scrounge up the rest of the funding for the master plan. Pinpointing these financing opportunities has been a crucial niche filled by the Institute.

Surprisingly, what Davis identifies as the Institute’s most important contribution to the puzzle of paying for coastal restoration does not involve spending a single dime. Instead, Davis and former Institute fellow Dean Boyer (L ’15), have argued that a substantial portion of the total cost of restoration—up to 20% based on Army Corps of Engineers estimates—could be eliminated by a simple change to the state’s property laws.

In the 2017 installment of the Institute’s series Financing the Future: Financing Options for Coastal Protection and Restoration in Louisiana, Davis and Boyer point out that coastal landowners, a group that’s largely composed of oil and gas companies, are interested mainly in the minerals that lie beneath the surface. Many of these property owners may be willing to donate the rights to use the land’s surface to coastal restoration projects as long as these activities don’t interfere with their company’s access to the oil and gas below.

The problem is that Louisiana law currently prohibits dividing surface rights from mineral rights. As Davis and Boyer write, “[o]wning wetlands is the key to owning the wealth beneath them.” To remedy this situation, the authors recommend amending the law to permit the separation of these rights, thereby promoting restoration efforts.

Amplifying the impact of his scholarly writing with action, Davis has worked with multiple state agencies for such regulatory changes. His words have carried weight. In 2018, the state proposed a new rule that largely implements Davis’s suggestions; the rule has moved all the way through the regulatory process and now awaits final agency approval before it becomes useable. Davis hopes the rule will be published by year’s end.  

In addition to advocating for substantive changes to policy, Davis and Boyer have also proposed ways the state can better “sell” the story of coastal land loss to attract funding for restoration. To woo more federal dollars, the authors propose framing the land loss issue in terms of national security. A disappearing coast threatens not only communities but also economic and military assets. Port Fourchon, for example, located at the southern tip of Lafourche Parish, is the entry point for almost one-fifth of the nation’s oil and 90 percent of the Gulf’s offshore oil and gas. The port has been identified as especially vulnerable to climate change.    

There are also major military installations in the region that will be impacted by a changing coast. The Marine Force Reserve headquarters in New Orleans serves as the command base for over 40,000 Marine reservists while the Naval Air Station Joint Reserve Base, located closer to the Gulf in Belle Chasse, is even more vulnerable to the risks of a receding coast line, including damaging hurricanes with fewer barrier islands and wetlands to reduce their power.

That said, Davis and Boyer have cautioned against expecting the feds to step in to bail out the state.

 “The federal government is not obliged to provide—or keep providing—any funding for the conservation, restoration, and protection of coastal Louisiana,” they wrote. Nevertheless, pitching the problem as a threat to national security might appeal to Washington, D.C.’s priorities, helping to garner much-needed funds. In short, as Davis says, the state needs “to be prepared to sell the story others are willing to hear.”

Davis and other Institute fellows have continue to work in this vein. Their shift from addressing state-level concerns to community-level concerns has led them to address issues of investment and insurability (with Katherine Van Marter, L ’16) and adaptation (with Kristen Hilferty, L ’17) for coastal towns and parishes that are expected to bear the brunt of sea level rise and coastal collapse. With a steady stream of postgraduate fellows providing the horsepower, expect them to continue to lead in this field.   

Facing Hard Truths: Resettlement of Coastal Communities

Eighty miles southwest of New Orleans lies Isle de Jean Charles, a dwindling spit of land that is home to around 30 families—a community with residents who will be among the nation’s first climate change refugees. Since the 1950s, a combination of sinking land, rising seas, and damaging hurricanes have cost Isle de Jean Charles over 98 percent of its land and much of its population. Heavy rains often submerge the sole road into and out of the community, trapping those who remain on the island. Intruding saltwater from the Gulf, which has already killed most of the island’s fruit trees, promises to come closer and closer to residents’ doorsteps.

Watch: CNN with Mark Davis, Isle de Jean Charles is disappearing.

Faced with this untenable predicament, the state requested federal funds in 2015 to move the residents of Isle de Jean Charles. Its application cited Community Resettlement Prospects in Southeast Louisiana, a white paper co-authored by the Institute’s Assistant Director Dalbom. Based on the state’s proposal, the Department of Housing and Urban Development (HUD) awarded $48 million in 2016 to resettle community members, who are mainly members of the Biloxi-Chitimacha-Choctaw tribe, from the land that had been home for generations. This is the first allocation of federal dollars to uproot an entire community because of climate change. 

Earlier this year, the state spent nearly one-fourth of its allotment to purchase a tract of land near Thibodeaux, Louisiana, around 40 miles inland from Isle de Jean Charles, to serve as the relocation site. Recently, however, some tribal members have voiced opposition to resettling over concerns that moving off the island may cause them to lose rights to their long-time homes. For now, it’s uncertain if this issue can be resolved and, thus, if the effort will succeed. Either way, it seems the residents of Isle de Jean Charles will have to abandon their ancestral home before long.

No matter how the story of Isle de Jean Charles ends, other communities in the region will soon confront the same anguishing choice of when to leave vanishing land that they have long called home. Dalbom says that populations in southern Terrebonne and neighboring Lafourche Parish are among those at the greatest risk of needing to be resettled—though precisely when is unknowable.

Like Isle de Jean Charles, these areas are rural and have substantial Native American populations—populations that are all too familiar with being forcefully uprooted by the government. Dalbom notes, however, that skepticism of government action extends to many coastal communities. He points to Louisiana’s corruption-plagued Road Home program, the post-Katrina home rebuilding initiative, as only the most recent example of government “letting down” a needy public.

Considering this history, Dalbom thinks that future government-managed migrations will face significant difficulty in gaining community buy-in. To fill this trust gap, he argues that communities must be actively engaged in their own relocation and that “special attention needs to given to the cultural, social, and personal needs of minority communities.” By probing past relocation missteps and failures, Dalbom has drawn lessons that can be applied to the relocations that are certain to be a part of the region’s and, indeed, the world’s near future.

The future of coastal Louisiana is yet to be written. What happens will depend on political choices as much as environmental forces. The staff of the Tulane Institute on Water Resources Law & Policy has identified those choices and analyzed their outcomes. They’ve provided a roadmap for how the state can afford the billions of dollars it will need to save the coast and highlighted the considerations that must be taken into account when relocating communities. As Davis says, “we don’t know how this turns out.” However, if coastal Louisiana survives, there will surely be a debt owed to the work of Davis, Dalbom, and the Institute.