In 1989, the Louisiana Mid-Continent Oil and Gas Association — the trade association for Exxon Mobil, Chevron, BP, Shell and the other majors — conducted a study of areas most damaged by coastal land loss. By then, the threat presented by land loss was well-known, state laws required that areas damaged by the energy industry be “restored to the pre-existing conditions” and Governor David Treen had tried and failed to pay for fixing the problem with a new Coastal Wetlands Environmental Levy on the oil and gas industry.
Perhaps Mid-Continent launched its study hoping for scientific support to allow the industry to escape liability. If so, it was disappointed. The study concluded that “canal development tend[s] to be the overwhelming cause of wetlands losses.”
What has the oil and gas industry done since 1989 to address the problem that was “the overwhelming cause” of land loss in the hardest-hit areas? Can’t think of anything? Exactly.
In 2006, looking at the severe land loss in the Barataria and Terrebonne basins, a study by the state’s Department of Natural Resources attributed an astonishing 76 percent of land loss to “oil and gas exploration and drilling.”
What has the industry done since 2006, when the state blamed it for 76 percent of the problem in those basins? Can’t think of anything? Exactly.
Meanwhile, at least another 500 square miles of Louisiana melted into the sea.
The industry’s responsibility for land loss varies dramatically from region to region, and certainly other causes, including the levees themselves, also have destroyed land. But pretending oil and gas played no role is like pretending Drew Brees doesn’t matter to the Saints offense. For years, the state has declined to enforce existing laws and regulations that since 1980 have required areas be “restored to the pre-existing condition.” To force the industry to obey the law, the Southeast Louisiana Flood Protection Authority filed its lawsuit against oil, gas and pipeline companies, basing its claim largely on federal law that prohibits doing anything to “impair the usefulness” of a levee and asking only that industry fix the part of the problem it created.
Ever since that lawsuit was filed, the industry has said the suit threatened industry’s cooperation with those trying to preserve the coast. What cooperation? Well, Chevron, which (through Texaco, which it now owns) probably caused more damage than anyone else, brags about supporting a project that will create 293 acres in South Lafourche. But there are 640 acres in a square mile, and the state has lost nearly 2,000 square miles.
And SLFPAE filed only after — eight months after — SLFPAE president Tim Doody and I told Garret Graves, then the governor’s coastal adviser, what our board was considering and suggested we all go to Mid-Continent head Chris John and try to work out a voluntary agreement. Graves replied, “I already tried that. They’re not there yet.” He also made it clear that for political reasons the state would not sue the industry.
Now Judge Nannette Jolivette-Brown has dismissed the flood authority’s case, not because the industry successfully argued it didn’t destroy land but because Brown — using rather bizarre logic — ruled that the right to call the industry to account for impairing a levee’s usefulness belonged only to the federal government and does not “extend to the protection of a levee owner or operator.” The dismissal will be appealed but it will take months before a decision comes down. Stewart Simonson, an attorney uninvolved in the case who was a senior member of the Bush administration, said, “The Fifth Circuit is conservative and pro-business, and they expect a certain level of legal craftsmanship. This isn’t it. The board has a good chance of winning the appeal.”
For the moment, the lawsuit is in abeyance, but it already has a legacy, changing politics and public awareness of the industry’s role. National realities also are settling in. The state’s elected officials have always said they’d get money for the coast from Washington, i.e., from taxpayers. That was always a fantasy. The most pro-environmental president since Teddy Roosevelt just proved it: far from calling for more federal dollars for Louisiana’s coast, Obama called for cutting those dollars to zero.
All this opens the door to three questions.
First, the industry said it was ready to work collaboratively to solve the problem, if only that nasty lawsuit wasn’t in the way. So, industry, when are you going to collaborate — not building 300 acres, but on a scale commensurate with the many billions of dollars of damage your own studies concede you’ve done?
Second, will some politician have the guts to demand that the industry step up? Will the attorney general protect the future of Louisiana? Will someone else? Or will our anti-tax governor stick Louisiana taxpayers with all the costs? In fact, last year, state Rep. Stuart Bishop, another anti-tax conservative and the manager of the bill to kill the lawsuit, conceded that taxpayers would pick up the tab for industry-caused damage.
Or, third, will the coast and so much that makes Louisiana Louisiana simply disappear?
The lawsuit was never the problem; it was filed to solve the problem. Let’s solve the problem. The land loss is the problem.
John M. Barry is the former vice president of the Southeast Louisiana Flood Protection Authority-East and president of Restore Louisiana Now.