The Louisiana Coast: Last Call
7:30 am
Mon September 9, 2013

John Barry, On Why The Levee Board Has Sued The Oil And Gas Companies

In July a landmark lawsuit was filed against the oil and gas industries for their role in the destruction of Louisiana’s coastal wetlands — a lawsuit that many people have been waiting decades to see.

But this suit didn’t come from an environmental group or a private landholder. It came from the Southeast Louisiana Flood Protection Authority – East, an agency charged with maintaining the huge hurricane protection system recently built around the metro New Orleans area.

The Authority says the wetlands that once cushioned storm surge are gone, raising the level of that surge that reaches their levees and floodwalls and increasing the cost to protect the city.

Leading that suit was John Barry, vice-president of the authority. Barry is best known as the author of bestselling books, including Rising Tide: The Great Mississippi Flood of 1927 and How it Changed America. We reached him at his home in Washington, where he lives when he’s not in New Orleans.

Why did the board sue the oil and gas companies?

John Barry: It’s clear that they have contributed to the land loss. There is a pretty large study — which included industry scientists — which said that, statewide, the land loss attributable to oil and gas production was 36 percent. That’s sizeable. In addition, the industry, in nearly all cases, those permits require them to repair any damage that they caused and to minimize the damage that they could not avoid. They haven’t done that. We’re desperate for funds to protect people’s lives and property. They’re the wealthiest industry in the world. And they haven’t kept their part of the bargain.

When did the board first decide to take this path?

John Barry: You, of course, can never vote in executive session, but we discussed it for a month. We had a meeting — which we invited Garret Graves of the CPRA [the Coastal Protection and Restoration Authority of Louisiana] to attend, and he did attend — in January, but we did not actually conduct a vote until June. Interestingly, in all of our discussions, while there were some very hard questions asked of attorneys, at the end of the day in every one those discussions I believe we were unanimous about going forward. Again, we never took a vote — but seemed to me there was total consensus on what action to take.

Would you tell us the three issues that are named in the suit, and how that affects your job protecting the city and the area?

John Barry: The first is that the companies — in the overwhelming majority of cases when they were operating under permits — agreed as a condition of getting the permit that they would minimize any problems, and that when they abandoned an area they would restore it. And they have not done that. Their defense seems to be that nobody made them keep their word and keep their promises before, so why should they keep their promises now?

If they were operating under a permit by the state or the federal government, and neither one of those authorities have sued them or taken them to court, wouldn’t that say that they did the work properly and they abided by the terms of the contract?

John Barry: Our role is as a third party beneficiary, or in this case injured party. Operating according to a permit does not relieve someone from the obligation not to inflict damage on somebody else; that’s as a general principle of law. Again, I’m not a lawyer, I may have misstated it — but it’s somewhat along those lines.

So, the second issue?

John Barry: The second is the Rivers and Harbors Act of 1899, which prohibits doing anything which will “impair the effectiveness of a levee.” If you send any increased storm surge against it — if you do anything that brings more wave energy upon a levee — you are impairing that levee’s effectiveness. The third, it’s called “servitude of drain” (which goes back to the Romans), and has been in Louisiana’s legal code for a couple of hundred years. If we can demonstrate that there’s any increased storm surge, then they need to fix all of what might increase that storm surge. That’s pretty powerful.

Under “servitude of drain,” do the properties have to be contiguous?

John Barry: They do not have to be contiguous — the limits are whatever the science shows. There’s already in case law in Louisiana an instance where a party thirty miles apart from where the activity was conducted that was ruled as, even though thirty miles apart, still a valid complaint. Again, it would be as far as the science goes — it might be ten miles, it might be fifty miles.

One of the criticisms leveled against the suit by Governor Jindal has been, repeatedly, that it’s just trying to “line the pockets of trial lawyers.”

John Barry: Well, I was trying to find people who would do it pro bono — and at least one of these was a good-sized entity — but you’re talking about thousands, if not tens of thousands, of hours in total of legal work; you’re talking about millions and millions of dollars out-of-pocket expended for scientific research to buttress your legal arguments. It takes a heck of a lot of resources to carry this on, and the only way you could get anybody to do this was on a contingency basis. Remember, if they don’t win they don’t get anything. They not only have lost all the time they’ve put into it — I can’t imagine that they would spend less than $5 million out of pocket cash on this stuff; they could easily go way over the $10 million mark and quite a bit higher — that’s a lot of cash to lose. It’s not entirely unreasonable that, for someone willing to take that kind of gamble — in reality these firms could conceivably even go bankrupt if the cost of this case got up there enough — if you’re willing to risk bankruptcy, then I think it’s reasonable to expect a pretty good return.

To be certain and clear about this: You were not approached by attorneys?

John Barry: Quite the reverse. I asked for recommendations from people I have high regard for and are internationally known in environmental litigation, and the first name on the list was Gladstone Jones. II called him and he was interested. I think the industry serves an obviously not only useful, but necessary function in society. It certainly provides a lot of benefits to the state of Louisiana. A lot of jobs. This is not going to cost any jobs from oil and gas — they’re going to stay as long as the oil and gas is there. When it’s gone, they’re going to leave. They’re not going to leave because of this lawsuit. All I’m asking, all we are asking, is for them to fix the part of the problem that they caused. So, to ask them to obey the permits, to do what they promised to do when they got the permits to take that oil and gas out of the ground. I just don’t see what’s controversial about that! The issue isn’t popularity, and the issue isn’t politics, the issue is trying to protect people’s lives. Early in this process, another reporter asked me why am I doing this, and I thought for a second and I said: “Because I love New Orleans, and I want it to survive.”

Support for The Louisiana Coast: Last Call comes from the Greater New Orleans Foundation, an organization that addresses the challenges facing people who live and work in the coastal communities of Southeast Louisiana.

The Louisiana Coast: Last Call is written and reported by Bob Marshall of The Lens, and produced by Fred Kasten.