Big, bold gestures often crash and burn, and as of now, it seems as if a New Orleans-area levee authority’s audacious lawsuit seeking to force the oil and gas industry to fix the environmental damage it caused will go down as one more disappointment.
U.S. District Judge Nanette Jolivette Brown’s dismissal of the suit was a surprise, given that the former New Orleans city attorney and President Barack Obama appointee was widely expected to at least hold a trial.
The lawsuit’s not officially dead. Lawyers for the levee authority say they’ll appeal, and based on the complicated way this was all set up, the decision does appear to be mainly theirs, not their client’s (although at this point, suit supporters on the board still hold a slim majority). They claim Brown’s decision is badly reasoned, although it’s hard to share their optimism; the highly conservative 5th Circuit Court of Appeals may well agree with her contention that the plaintiffs were asking the court to “expand the law.”
Still, now seems a good time to pause and ask whether it was all worth it.
Certainly the high-stakes gambit to tap into the powerful industry’s vast profits to repair Louisiana’s vanishing coast — and with it the storm-surge barrier that Southeast Louisiana Flood Protection Authority-East members contend is vital to their mission of defending populated areas from future hurricanes — exacted some costs.
Topping the list is the loss of political independence. The levee authority was born of a post-Hurricane Katrina reform movement aimed at professionalizing storm protection. It’s stocked with experts in designated fields who are supposed to be free of political ties and allegiances. But as soon as the board voted unanimously to sue back in 2013, Gov. Bobby Jindal and his allies set about trying to dismantle the pro-suit majority. He refused to reappoint author John Barry, the suit’s most prominent advocate, and other key members, replacing them with opponents. Garret Graves, then Jindal’s chief coastal adviser and now a newly elected member of Congress, came right out and called potential board members’ opinions on the suit a litmus test.
Then there’s the message all the maneuvering has sent to the industry.
It wasn’t just the Governor’s Office that scrambled to block the legal process. The Legislature joined in, too, passing a bill to kill the suit even as it was working its way through the courts. Many an industry advocate suggested that the suit sent a chilling signal to businesses considering locating here, but that was always hogwash. If the suit’s aftermath served as a loyalty test to oil and gas interests, well, Louisiana’s politicians passed with flying colors.
Those are the downsides.
On the upside, the board’s decision to hire the lawyers on a contingency basis was vindicated. Much has been made of the windfall they would earn should the case be successful, but the lawyers also took on all the financial risk. They, not the board, are on the hook for the cost of researching and filing suit, an investment they say has run to nearly $2 million so far. If it ends here, then you have to say the board tried its best to find a cash stream to fund badly needed restoration without putting public money on the line.
But the biggest potential benefit, absent a decision by the 5th Circuit to revive the case, is that the whole episode will change the conversation. Just filing the suit highlighted the industry’s contribution to coastal erosion, largely through decades of canal cutting and other practices that companies were supposed to remediate but generally didn’t. Sure, there are other factors, from levee construction to overall subsidence, but commerce has to be part of any honest assessment of the mix.
The lawsuit drew national publicity, and it should create pressure for all those companies to show that they’re good corporate citizens and come to the table. But will it?
The reluctance of most politicians to support the cause was distressing, if not surprising. They rely on campaign cash from the industry and also recognize that it employs many a constituent and fuels the local economy. Strikingly, the only big-name politicians to endorse the suit were a trio of former governors, Republican Buddy Roemer and Democrats Kathleen Blanco and Edwin Edwards. What they have in common is that they don’t have to worry about the next election.
It’s now abundantly clear that any pressure for change, for accountability, will have to come from outside the political structure, from those who aren’t worried about playing defense. Or to put it another way, it will have to come from people who are out to defend something much more important than their own skins.