An Ambitious Lawsuit and Unresolved Problems Along the Gulf Coast

Coastal wetlands are among Earth’s most important ecosystems, yet are rapidly lost due to human activity as well as natural processes. In recent years, wetlands along the Gulf Coast were substantially impacted by Hurricane Katrina and the BP oil spill. As a result, there was significant devastation of the wetlands along the Mississippi River delta. This destruction affected the $23 billion dollar fishing industry, oil and gas infrastructure in the region, and the habitat of millions of species.

Coastal wetlands cover over forty million acres of land in the continental United States. Coastal wetlands are important to our ecosystem and provide a number of services. They protect upland areas from flooding caused by rising sea levels and storms. They absorb the impact of the ocean current on the land thereby controlling the amount of erosion that occurs. Additionally, coastal wetlands provide food and habitat to many wildlife species and are important to commercial fisheries, which produce fifty-percent of the nation’s fish and shellfish supply. The wetlands also play an important role in our water quality by filtering chemicals and sediment out of water before it goes into the ocean.

Causes of Decline

The oil and gas industry created over 50,000 wells along the Gulf Coast region since the 1920s. In addition to that, they laid over 10,000 miles of pipeline to connect the wells to the canals and refineries. Over time, seawater has seeped into the marshes and expanded the canals larger than they historically. These operations introduced air pockets into the land and increased the land’s subsidence significantly over time. The oil and gas industry contributes to at least thirty-six percent of coastal wetland loss in southern Louisiana. An estimated $470 billion in natural resources were pumped out of that region in the last twenty years alone, and they are mostly unopposed at the state and federal government levels.

The effect of the oil and gas industry on the land is perhaps most prevalent after a storm. As a hurricane moves in, it causes flooding and a rise in water levels. Heavy surf breaks down soft sediment in the marshes and rushing water displaces grass and mud, pushing it to more interior shorelines. While after most hurricanes the water level usually recedes back to where it started from, powerful hurricanes like Hurricane Katrina flood the land so much that the water never recedes, resulting in land loss. After Katrina, marsh plants that tried to grow back were uprooted in subsequent storms including Rita, Gustav, and Ike. Increasing human development and activity along the coastlines exaggerates the effect that strong hurricanes have on the wetlands, making recovery after storms much more difficult. From 2005-2009, hurricanes caused about 328 square miles of coastal land loss. This land loss affects over two million people and millions of species.

Katrina’s Impact on an Influential Individual

The catastrophic loss of coastal wetlands after Hurricane Katrina struck a chord among historian John Barry. Author of Rising Tide, a historical account of the 1927 Mississippi flood, one of the most destructive floods in history, Barry is considered an expert in flood prevention. He was approached by editors and television producers to answer many questions after Katrina hit. Barry was confounded at the amount of damage that Katrina did to the coastline and did extensive research to determine what went wrong. He determined that it was not overtopping of levees as the Army Corps of Engineers had presumed, it was a failure to regulate laws put in place since the 1920s to preserve the integrity of the wetlands.

To prevent another devastation of the land in the future, the Louisiana Legislature created a levee board called the Southeast Louisiana Flood Protection Authority-East (“Board”), of which Barry became a member. The Board is responsible for overseeing all flood management projects in its jurisdiction. However, the Board was not able to write policy, enforce laws, or mandate levee construction, it was primarily a consultant to agencies like the Army Corps of Engineers. Although the original focus of the Board was to improve the quality of the levees built around the city, a new focus arose: the need to preserve the marshes.

In 2007, the state created a Coastal Master Plan to restore the coast which was backed by scientists and the oil and gas industry. Over one hundred projects were listed within the Master Plan that would help rebuild the coastline, but the next pressing issue was who would fund the projects. The state estimated that it would cost $50 billion to fund the master plan, $20 billion of which would come from the BP Deepwater Horizon oil-spill settlement. Barry thought that the oil industry should fund the rest of the plan as well, but the state decided to look towards taxpayers instead. It was then that Barry decided to research whether the oil companies had a legal obligation to fund the plan.

In order to dredge canals and put pipelines into the land, oil companies have needed to obtain permits since the 1920s. In 1980 the Louisiana Administrative Code put in place a provision that require mineral extracting companies to restore land “as near as practicable back to their original condition upon termination of operations.” Failure to restore the land back to this condition has furthered the devastation caused by storms. In 2013, Barry and the Board filed suit against ninety-two oil companies seeking damages and injunctive relief in the Civil District Court for the Parish of New Orleans. The Board alleged that the oil and gas operations contributed to coastal erosion which has made Louisiana more vulnerable to severe weather and flooding. Additionally, the Board alleges that these actions “exacerbated direct land loss by failing to maintain the canal network.” This failure caused canals to erode and expand beyond their permitted widths.

The Board contends that the oil and gas companies failed to adhere to the Rivers and Harbors Act of 1899, Clean Water Act of 1972, and Coastal Zone Management Act of 1972. Together, these acts create a standard of care that preserves the land’s integrity.

Critics of the Lawsuit

Critics of the suit contend that the oil and gas companies have done what they have been told to do. They provide millions of people with an essential resource and were not doing anything illegal. The attorney for the state’s Department of Natural Resources, J. Blake Canfield, stated that they had no evidence that any permits were violated, but also stated they did not look into permits that were older than 1980. The president of the oil industry lobby group, Louisiana Mid-Continent Oil and Gas Association contends that litigation in this area will affect the Coastal Master Plan. Spending excessive amounts of time on litigation will further prolong the plan to rebuild the coast. This is an effect that we ultimately want to avoid so that wetland loss does not continue to worsen.

The oil and gas industry has a significant stake in the Coastal Master Plan. It, too, is reliant upon this plan because it has billions of dollars of infrastructure along the coast that is also vulnerable to storms, a risk that increases with coastal wetland loss.

Possible Effects of the Lawsuit

The oil industry’s lobbyists tried to pass bills through the last legislative session that would destroy the suit before it had the possibility of being adjudicated. In June 2014, Bobby Jindal, governor of Louisiana, finally signed into effect Senate Bill 469, which will bar the board from continuing in its lawsuit. The bill states “no state or local governmental entity shall have, nor may pursue, any right or cause of action arising from any activity subject to permitting under R.S. 49:214.21 et seq., 33 U.S.C. §1344 or 33 U.S.C. § 408 in the coastal area as defined by R.S. 49:214.2, or arising from or related to any use as defined by R.S. 49:214.23(13), regardless of the date such use or activity occurred.” The Board plans to challenge the constitutionality of this bill in court.

A court will address the lawsuit again this year. Should the Board’s claims fail, the problem of funding the Coastal Master Plan will arise. The estimated $30 billion dollars more that it needs to move on will somehow need to be funded through taxpayer dollars. Should the suit prevail, the oil companies will be responsible for damages for the harm that they have caused to the coastline. This also poses a tedious task. Research will need to be done to determine exactly how much damage each of the ninety-two companies has caused and how much each of them subsequently should owe. Whatever the outcome, it will still be a long road to complete funding of the Coastal Master Plan. Meanwhile, more wetlands are lost every day.

 

The title image features a shot of Louisiana wetlands along the coast of the Gulf. This image was created by the Fish and Wildlife Service and as such is part of the public domain.

 


Sources:

Coastal Wetlands, Environmental Protection Agency, http://water.epa.gov/type/wetlands/cwt.cfm (last visited Feb. 10, 2015).

Nathanial Rich, The Most Ambitious Environmental Lawsuit Ever, New York Times Magazine, (Oct. 14, 2014) http://www.nytimes.com/interactive/2014/10/02/magazine/mag-oil-lawsuit.html?_r=0.

Signs of Progress for the Mississippi River Delta, Environmental Defense Fund, http://www.edf.org/ecosystems/signs-progress-mississippi-river-delta (last visited Feb. 10, 2015).

Status and Trends of Coastal Wetlands, National Oceanic and Atmospheric Administration, http://www.habitat.noaa.gov/protection/wetlands/ (last visited Feb. 10, 2015).

Monica Palaseanu-Lovejoy, How Hurricanes Shape Wetlands in Southern Louisiana, Smithsonian Museum of Natural History, (Nov. 5, 2013) http://ocean.si.edu/blog/how-hurricanes-shape-wetlands-southern-louisiana.

Bd. of Comm’rs of the Southeast La. Flood Prot. Authority-East v. Tenn. Gas Pipeline Co., LLC, 29 F. Supp. 3d 808, (E.D. La. 2014).

John M. Barry, Suing Exxon, http://www.johnmbarry.com/bio.htm (last visited Feb. 17, 2015).

Alan Neuhauser, Bobby Jindal Signs Bill to Block Lawsuits Against Oil and Gas Companies, U.S. News, (June 6, 2014) http://www.usnews.com/news/articles/2014/06/06/bobby-jindal-signs-bill-to-block-lawsuits-against-oil-and-gas-companies.

SB 469, http://www.legis.la.gov/legis/ViewDocument.aspx?d=913687 (last visited Feb. 17, 2015).

La. Admin. Code. tit. 43:I, § 719 (2014).