Opinion: We Sued the Oil Industry So New Orleans Can Survive

After Hurricane Katrina, which struck eight years ago August 29, and the collapse of the levee system—a system entirely designed and built by the U.S. Army Corps of Engineers—Louisiana wanted a new kind of local levee board, one made up of flood experts instead of political appointees. So, with 81 percent of the vote, the state's citizens passed a constitutional amendment that created the Southeast Louisiana Flood Protection Authority East (SLFPAE), a reform board that oversees the levee system of greater New Orleans on the east bank of the Mississippi River, and of which I am a member.

The members of this levee board are nominated by a committee that includes deans of the state's engineering schools and representatives of good-government groups; the governor must appoint board members from a list provided by this committee. The members of other levee boards in the state serve at the governor's pleasure. To insulate them from politics, however, SLFPAE members cannot be removed except for cause. This distinction has suddenly become important.

On July 24, the SLFPAE filed suit against Exxon Mobil, Shell,* BP, Chevron, Atlantic Richfield, and 92 other oil, gas, and pipeline companies for destruction of the "buffer zone" of land and marsh that had historically protected the area.

We expected controversy. We got an uproar.

Coastal Louisiana's Land Problem

Before talking about the undisputed facts of the case, one needs to know a basic geological truth. By depositing sediment, the Mississippi River built all the land that stretches from Cape Girardeau, Missouri, (map) south to the Gulf of Mexico. The land created includes the entire Louisiana coast, all the way from Texas to Mississippi.

This coast has no rocks; in essence it's all a kind of mud held together by the roots of plants. Because of man-made interventions in natural processes, the land-building in Louisiana has reversed itself. Since 1932, Louisiana has lost nearly 2,000 square miles of coastal lands, an area roughly the size of Delaware. If you put Delaware between New Orleans and the ocean, the city wouldn't need any levees. Coastal land is the buffer that protects people from hurricanes.

There are multiple causes of Louisiana's land loss. They include levees, the shipping industry, and dams 2,000 miles upriver. The dams, which prevent upriver sediment from entering the river, are important; the river used to carry 400 million tons of sediment a year, but just six dams in Montana, North Dakota, and South Dakota retain more than 100 million tons a year.

And there's one more factor: the production of oil and gas. The industry dredged 10,000 miles of canals and pipelines through marsh, allowing saltwater intrusion and killing plants whose roots held the soil together, causing the land to melt into the ocean. In addition, so much oil, gas, and other materials have been extracted that the land has actually sunk to a point that is sometimes beneath the waves. Multiple scientific studies have concluded these oil and gas activities have caused extensive land loss, and even the industry concedes this point. One U.S. Geological Survey study, which included industry scientists, concluded that 36 percent of statewide land loss is the result of oil and gas production (see Table 3 here). Other studies say the share is higher.

There's a saying down here: "The levees protect the people, and the land protects the levees." The destruction of the land buffer means that greater hurricane storm surge pounds against our flood protection system.

The levee board is suing the oil, gas, and pipeline industry because of this increased storm surge, which forces us to expend more money to maintain and possibly build a more extensive flood protection system than would otherwise be the case.

For example, we just conducted a study of the land bridge extending into Lake Pontchartrain from New Orleans East. If that narrow spit of land disappears, the ocean will roar unchecked into the lake and threaten the lives and property of people who have never been threatened before. Reinforcing that alone would cost $1.2 billion. We don't have that money. We don't have a fraction of that money. And that's just one project. As we look to the future needs of protecting New Orleans, we see enormous expenses that we cannot possibly meet.

A Real-Life Pelican Brief

Legally, our case is based on two principles. First, most of the industry operations were conducted under permits that required the operator to minimize the damage they caused and restore the area to its pre-existing condition when operations ceased. We believe the industry did not comply with these permits. The second principle comes from Louisiana's unique legal tradition. The rest of the country's jurisprudence is based on English common law traditions, but Louisiana's is based on "civil law," which goes back to the Romans. For centuries, and included in state statutes for 200 years, is a concept called "servitude of drain." This prohibits one party from increasing the flow of water on someone else's property. By destroying coastal land, the industry increased the surge coming our way. It broke this law.

There is little question about the facts of the case. Bob Bea, formerly Shell's chief offshore engineer and head of a National Science Foundation study that investigated the failures during Katrina, stated in an affidavit for the state in another legal action, not for us, that industry "activities have contributed significantly to the loss of natural defenses . . . In several important cases, it was the loss of these natural defenses that contributed to the unanticipated breaches of flood protection facilities that protected the greater New Orleans area during Hurricane Katrina and led to repeated flooding during Hurricane Rita."

We want the industry to conform to the conditions they agreed to in the permits, and restore the land they damaged. If this is impossible, we want them to compensate us so we can augment the flood protection system.

To put it simply, we want the industry to fix the part of the problem they created. We want them to fix what they broke, and what they promised to fix. The industry also wants the coastal buffer restored to protect its own enormous investment in infrastructure—pipelines, wells, and 20 percent of the nation's refining capacity. Chris John, head of Louisiana Mid-Continent Oil and Gas, an industry trade association, says "our viability depends on" the buffer. But the industry wants taxpayers to pay for a problem it, the most profitable industry in the world, created.

Ironically, our part of Louisiana's coast has actually suffered much less from oil and gas operations than areas to our west. If other levee districts also sue, it could become the largest environmental action ever. So far those other levee districts have shown no sign of taking legal action. The industry is very strong in their areas—it's the biggest employer there. But if we go to trial and win, they will have to follow suit.

The question is whether we can ever get to trial. They used to say, "The flag of Texaco flies above the Louisiana capitol." Texaco has been absorbed by Chevron, and the industry remains the single most powerful political force in the state. Environmental groups have charged that Governor Bobby Jindal has accepted more than $1 million in campaign donations from the industry, and the governor has demanded that we withdraw the lawsuit. His administration is doing everything in its power to stop it. The governor personally, his cabinet members, and state agencies have condemned us.

They have called us a rogue board, promised to "reform" us—a body created as a post-Katrina reform board—next year when the legislature meets. They claimed we lacked authority to sue and threatened legal action against us—although, since we do have authority, they have not actually filed legal action. The governor personally said we were "hijacked" by trial lawyers, and his deputies have claimed—untruthfully—that we violated open meetings laws and that our attorneys will make $2 billion in fees. We were not hijacked. We conducted our meetings in conformity with the advice of an assistant attorney general. The idea for the lawsuit came from the board. No such attorney fees will be paid—and if they were, it would only be because we won $10 billion to pay for flood protection.

The terms for three of our nine board members, including mine, have expired; because the board involves public safety, the law requires us to serve until replaced. For other reasons, a fourth seat on the board may become vacant. In late September, the nominating committee will decide whether to submit our names to the governor for reappointment. If we're renominated, the governor will choose whether to reappoint us.

But even if he rejects four of us, the five remaining board members will retain a majority for at least another year. That means there will be a huge battle in the state legislature to try to dismantle this independent board, this board formed after Katrina to do what it thinks is right. If the board survives that battle with five votes in favor of the suit, our attorneys will have time to make enough progress in the courts to make it impossible to withdraw.

When this suit was first filed, I was asked why we were doing this, why we were suing. The answer is simple: It's because we love New Orleans and want it to survive. And we believe if we do not take action, it will not survive.

*Shell is sponsor of National Geographic's Great Energy Challenge initiative. National Geographic maintains autonomy over content.

John M. Barry is vice president of the Southeast Louisiana Flood Protection Authority East and author of Rising Tide: The Great Mississippi Flood of 1927 and How It Changed America.