District Court Judge Janice Clark surely erred last week in ruling that a state law expressly designed to block a levee board’s lawsuit against 97 energy-related companies somehow does not actually block the suit. Either way, the best method to get energy companies to help finance wetlands restoration is through a forward-looking legislative process, not a radical lawsuit holding the companies liable, under a dubious theory, for alleged past transgressions.
Indeed, the best course of action would be to have all parties agree to a consent decree ending the lawsuit in return for legislation requiring the companies to pay a reasonable fee, going forward, for processing of oil and gas that traverses our wetlands.
Clark ruled that the law’s prohibition on such lawsuits by a “state or local governmental agency” doesn’t apply to the Southeast Louisiana Flood Protection Authority-East because the board is neither a state nor local agency, “neither fish nor fowl.” Nonsense. The board is an agency created by the state and is described in the part of the state constitution called “Local Government.”
The suit itself, as I’ve argued before, is ill-conceived both legally and morally. It tries to make energy companies alone pay for damage actually caused by a host of human and natural actors, and retroactively would make legally actionable something (the laying of pipelines and canals) that government itself originally approved. Nobody denies that pipelines and canals added to wetlands loss (although there is plenty of dispute about how large a percentage of the loss). Yet the people of Louisiana, acting through elected representatives, issued the permits anyway while deliberately rejecting the idea that oil-related companies should pay for the anticipated damage with anything other than severance fees and other ordinary taxes.
Former SLFPA-E Vice President John Barry and I have quite publicly disagreed about the lawsuit, but we joined forces this week to repropose an old idea for a fee for energy processing and transit through the wetlands. But although Barry certainly would differ (he wants both the billions from the lawsuit and billions from a new fee), I contend that the very fact that it is a re proposal, rather than a new proposal, is evidence that Louisianans already decided not to charge the energy companies for traversing and degrading our marshes. It’s unfair for the courts to force the companies to pay for activity the people of the state effectively ratified, for which the companies had no reasonable expectation they would be exorbitantly dunned.
The fact is that when then-Gov. Dave Treen in 1982 pushed with great fanfare for just such a fee, the Coastal Wetlands Environmental Levy, his proposal was soundly defeated. When Public Service Commissioner Foster Campbell campaigned on a similar idea while running for governor in 2007, he got nowhere. In short, the people of Louisiana could have set the rules differently, requiring payment for expected wetlands damage, but they didn’t.
Imagine if a development company asked for rights-of-way for sewerage lines for a new neighborhood, necessitating digging under existing concrete. Imagine the county government, fully desirous of the development’s economic benefits, providing the rights-of-way for only the cost of the actual digging and resurfacing of the concrete. Later, with the neighborhood fully populated, the county decides that its central waterworks system can’t handle the additional flow without costly improvements. Would the county be justified in suing the development company for the flow everybody knew would be created?
Of course not. It would be patently unfair.
The same logic should apply here. That which amounts to retroactive rules changes just isn’t fair.
But, to extend the analogy, it would be perfectly fair to charge the development company for any new sewerage lines or for new repairs to existing lines. Likewise, it would be fair — and sensible — for Louisiana to impose a CWEL-like fee going forward.
The defeat of CWEL in 1982 provides logical defense for the companies now. Passage of a new CWEL while ending the lawsuit would help Louisiana while providing the companies an honest, predictable and budgetable expectation of their costs to help protect wetlands — wetlands that provide protections not just for human habitation and wildlife but for the industry’s own infrastructure as well.
New Orleans native Quin Hillyer is a contributing editor for National Review. You can follow him on Twitter, @QuinHillyer. His email address is firstname.lastname@example.org, and he blogs at blogs. theadvocate.com/quin-essential.