Opinion: Public Policy Via Lawsuits Delivers Zero Dollars For Louisiana Coastal Restoration

Of all the various tactics used by oil and gas industry opponents to block its activities, one of the most noteworthy has been the incessant, decades-long stream of class-action lawsuits in Louisiana. Unfortunately, that cottage industry has been successful in depressing the state’s oil and gas sector and in enriching plaintiffs' firms while failing miserably in its’ stated objective of raising funds to help with the pressing problem of the ongoing loss of lands and wetlands throughout the Mississippi River delta region.

In a new study released on August 8, the U.S. Chamber Institute for Legal Reform (ILR) contends that the latest round of land loss litigation, which Governor John Bel Edwards has aggressively supported, threatens the future of oil and gas in Louisiana, an industry which has long been Louisiana’s major driver of economic growth. The study captures the essence of the state’s current conundrum with its title: “Litigation vs. Restoration.”

“The coastal land loss situation is at a critical point. We are in a situation where we’ve had 6 years of litigation, lots of headlines, many millions paid in legal fees, and these lawsuits have not done anything to help the coast,” Melissa Landry, a consultant who has been involved on the defendant side of some of the lawsuits, told me on Friday. “Litigation is not a viable strategy for restoring the coast.”

The Louisiana courts have long provided friendly, fertile ground for plaintiff trial lawyer firms looking to bring class action suits on a contingency-fee basis. A new era dawned for this longstanding cottage industry in 2013, when the Southeast Louisiana Flood Protection Authority-East (SLFPA) brought a suit against a raft of oil industry defendants, in an effort to hold them liable for the erosion of the lands that were created by the flooding and silting processes of the Mississippi River. After several years of protracted litigation, the levee board lawsuit was dismissed in federal court.

Although the defendants challenged the legal basis for that suit and won, the filing of it by a government entity opened the floodgates for similar suits to be filed by a raft of parish commissions, city governments and other local/regional government organizations. The effort was further encouraged starting in 2016 after the election of current Governor Edwards, who has urged more municipalities to file lawsuits and attempted to allow his agencies to hire trial lawyer firms on contingency fee contracts to intervene in and support these lawsuits.

As the ILR report points out, the industry now finds itself in the current position of having to defend against no fewer than 43 separate lawsuits, all based on legal arguments against these companies that even Gov. Edwards’s own appointee to be the Chairman of the Louisiana Coastal Protection and Restoration Authority (CPRA), Chip Kline, has indicated have little validity. Here is what Kline said in a recent letter published in the Baton Rouge Advocate:

“This spring, the flood waters will stay out of our homes and businesses, but in exchange, the sediment and fresh water needed to feed our starving wetlands will stay inside the levees until it reaches the continental shelf. This fundamental contradiction between the needs of the natural system and those of the man-made system are what has led us to the loss of nearly 2,000 square miles of wetlands since 1932.”

The year 1932 is key in this discussion because that was the year the U.S. Army Corps of Engineers, at the state’s request, began building the extensive system of levees and dikes on the Mississippi in the wake of disastrous flooding that had occurred in prior years. Here’s what he CPRA’s website has to say on the matter:

One of the most significant causes of land loss is the straitjacketing of the lower Mississippi River with huge levees to control the river and protect communities, economic infrastructure and other resources from river flooding. The problem is the delta’s wetlands were and still are built and sustained by sediment delivered by the river. Leveeing of the river cut the tie between the sediment-filled river and its delta, stopping the cycle of new wetland growth.

The lands and wetlands that are disappearing today were actually built over thousands of years through the flooding and resultant silting by the Mississippi River. Is it any wonder then that they are now disappearing mainly because that flooding and silting no longer takes place?

However, there is no doubt that the industry’s activities – all of which have been conducted over decades under permits issued by the Louisiana state government – have also had an impact, as have the frequent major hurricane events that hit the area and other factors. But the idea behind these lawsuits is to force the “deep pockets” of the oil and gas industry to essentially foot the entire bill for about $50 billion worth of coastal restoration projects, at last count.

So, six years into this process, exactly how many dollars has this lawsuit cottage industry provide for such projects? Not one.

Meanwhile, as the ILR report points out, far more has been done to address land loss on the coast and fund hurricane restoration during those 6 years as a result of funding produced by oil and gas activity in the state. In fact, that funding – through fees, taxes and royalties - has been the state’s primary source for funding coastal restoration projects. In addition to that base of support, industry companies are also voluntarily engaged in an array of collaborative restoration and conservation projects with various local governments.

Landry, who has lived her entire life in Louisiana, put it this way: “Litigation that slows oil and gas down produces less money for restoration – it’s hurtful. And this could go on for another decade- can we really wait that long for litigation that has very little chance of succeeding?” After a pause, she added, “This is not good public policy.”

Given the results thus far, that seems to be a pretty fair assessment.

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