‘The idea of making the industry live up to its legal responsibility is not going to die.’
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| A refinery and wetlands near Myrtle Grove, La. Credit Jeff Riedel for The New York Times |
In Louisiana, the most common way to visualize the state’s existential crisis is through the metaphor of football fields. The formulation, repeated in nearly every local newspaper article about the subject, goes like this: Each hour, Louisiana loses about a football field’s worth of land. Each day, the state loses nearly the accumulated acreage of every football stadium in the N.F.L. Were this rate of land loss applied to New York, Central Park would disappear in a month. Manhattan would vanish within a year and a half. The last of Brooklyn would dissolve four years later. New Yorkers would notice this kind of land loss. The world would notice this kind of land loss. But the hemorrhaging of Louisiana’s coastal wetlands has gone largely unremarked upon beyond state borders. This is surprising, because the wetlands, apart from their unique ecological significance and astounding beauty, buffer the impact of hurricanes that threaten not just New Orleans but also the port of South Louisiana, the nation’s largest; just under 10 percent of the country’s oil reserves; a quarter of its natural-gas supply; a fifth of its oil-refining capacity; and the gateway to its internal waterway system. The attenuation of Louisiana, like any environmental disaster carried beyond a certain point, is a national-security threat.
Where
does it go, this vanishing land? It sinks into the sea. The Gulf of
Mexico is encroaching northward, while the marshes are deteriorating
from within, starved by a lack of river sediment and poisoned by
seawater. Since 2011, the National Oceanic and Atmospheric
Administration has delisted more than 30 place names from Plaquemines
Parish alone. English Bay, Bay Jacquin, Cyprien Bay, Skipjack Bay and
Bay Crapaud have merged like soap bubbles into a single amorphous body
of water. The lowest section of the Mississippi River Delta looks like a
maple leaf that has been devoured down to its veins by insects. The sea
is rising along the southeast coast of Louisiana faster than it is
anywhere else in the world.
The land loss is swiftly
reversing the process by which the state was built. As the Mississippi
shifted its course over the millenniums, spraying like a loose garden
hose, it deposited sand and silt in a wide arc. This sediment first
settled into marsh and later thickened into solid land. But what took
7,000 years to create has been nearly destroyed in the last 85. Dams
built on the tributaries of the Mississippi, as far north as Montana,
have reduced the sediment load by half. Levees penned the river in
place, preventing the floods that are necessary to disperse sediment
across the delta. The dredging of two major shipping routes, the
Mississippi River Gulf Outlet and the Gulf Intracoastal Waterway,
invited saltwater into the wetlands’ atrophied heart.
Beneath
the surface, the oil and gas industry has carved more than 50,000 wells
since the 1920s, creating pockets of air in the marsh that accelerate
the land’s subsidence. The industry has also incised 10,000 linear miles
of pipelines, which connect the wells to processing facilities; and
canals, which allow ships to enter the marsh from the sea. Over time, as
seawater eats away at the roots of the adjacent marsh, the canals
expand. By its own estimate, the oil and gas industry concedes that it
has caused 36 percent of all wetlands loss in southeastern Louisiana.
(The Interior Department has placed the industry’s liability as low as
15 percent and as high as 59 percent.) A better analogy than
disappearing football fields has been proposed by the historian John M.
Barry, who has lived in the French Quarter on and off since 1972. Barry
likens the marsh to a block of ice. The reduction of sediment in the
Mississippi, the construction of levees and the oil and gas wells
“created a situation akin to taking the block of ice out of the freezer,
so it begins to melt.” Dredging canals and pipelines “is akin to
stabbing that block of ice with an ice pick.”
The
oil and gas industry has extracted about $470 billion in natural
resources from the state in the last two decades, with the tacit
blessing of the federal and state governments and without significant
opposition from environmental groups. Oil and gas is, after all,
Louisiana’s leading industry, responsible for around a billion dollars
in annual tax revenue. Last year, industry executives had reason to be
surprised, then, when they were asked to pay damages. The request came
in the form of the most ambitious, wide-ranging environmental lawsuit in
the history of the United States. And it was served by the most
unlikely of antagonists, a former college-football coach, competitive
weight lifter and author of dense, intellectually robust 500-page books
of American history: John M. Barry.
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‘What took 7,000 years to create has been nearly destroyed in the last 85.’
Credit
Jeff Riedel for The New York Times
|
When Hurricane Katrina made
landfall in Louisiana on Aug. 29, 2005, John Barry was a year and a
half into writing his sixth book, “Roger Williams and the Creation of
the American Soul,” about the puritan theologian’s efforts to define the
limits of political power. Barry is not a fast writer; his books take
him, on average, eight years to complete. “I tend,” Barry says, “to
obsess.” Earlier in his career, he spent nearly a decade as a political
journalist, writing about Congress, an experience he drew upon for his
first book, “The Ambition and the Power.” But after that book’s
publication, he quit journalism and cocooned himself in research,
reading and writing. He took on vast, complex episodes in American
history that in his rendering become Jacobean dramas about tectonic
struggles for power. “The Ambition and the Power” would make an
appropriate subtitle for any of his books — particularly “Rising Tide,”
his history of the 1927 Mississippi River flood, the most destructive in
American history.
Barry’s research
for “Rising Tide” had made him an amateur expert on flood prevention,
and in the days after Hurricane Katrina, he received requests from
editors and television-news producers for interviews. He accepted nearly
every one of them and within days of the storm had become one of the
city’s most visible ambassadors in the national press. “I felt I had an
obligation,” Barry told me, “to convince people that the city was worth
rebuilding.”
Like many others,
Barry was frustrated that he couldn’t figure out why New Orleans had
flooded so catastrophically. When he studied the numbers — the wind
shear on Lake Pontchartrain, the storm surge, the inches of rainfall —
they didn’t add up. After making calls to some of his old sources, he
concluded that the levees hadn’t been overtopped, as officials from the
Army Corps of Engineers assumed, but had collapsed because of design
flaws. (He was among the first to draw attention to this fact in an
Op-Ed article published in The New York Times that October.) Barry
concluded that just as in 1927, people died because of cynical decisions
made by shortsighted politicians drawing on bad science. For Barry,
Hurricane Katrina was not the story of a natural disaster; it was a
story of politics, science and power.
It
seemed like the ideal basis for a John Barry book, but Barry decided
not to write a book. Instead, on the cusp of his 60th birthday in 2006,
he entered public life. He wrote editorials for The Times, The Los
Angeles Times, The Washington Post and USA Today. He joined state
committees charged with improving flood control. He called a friend in
Congress who sat on the Appropriations Committee and met with other
lawmakers and their staffs. He toured flood-management systems in the
Netherlands. He began to resemble Andrew Humphreys, a conflicted hero of
“Rising Tide,” who arrived in New Orleans in 1850 to study flood
control: “The work obsessed him, unbalanced him, pushed him to the
margin. He stopped writing . . . because it distracted him. . . . He
himself talked to reporters. He basked in their attention, basked in
their portrayal of him as a major figure.”
In
Washington, where Barry lives for part of the year, he met with a
freshman representative from the state’s First Congressional District,
which includes much of southeastern Louisiana: Bobby Jindal. He begged
Jindal to demand action from the White House. New Orleans couldn’t count
on its mayor, or on the governor, he said; the city needed a hero on
Capitol Hill. After speaking for two hours, Barry recalled, Jindal said
that taking a leadership position on Hurricane Katrina “didn’t fit his
timing for running for governor.” (Jindal, who declined to comment for
this article, was elected governor in 2007.) “I left in total disgust,”
Barry said.
Barry has a special
talent for disgust. His face at rest conveys a pained forbearance. A
lifetime spent studying the behavior of powerful people motivated by low
ambitions has made him quick to skepticism. He is a master of winces,
grimaces and exasperated smiles. His voice is gravelly and low, though
indignation amplifies it fivefold. At 67, Barry is 5-foot-9 and
powerfully built — he participated in national weight-lifting
competitions as recently as 1998. He played football at Brown and, after
dropping out of a Ph.D. history program, joined Tulane University’s
football team as a receivers’ coach. In his office in downtown New
Orleans, the most prominent wall decoration is a laminated
Times-Picayune newspaper from 1973 that celebrates the first Tulane
victory over Louisiana State in 25 years. When discussing his public
battles, he often summons football metaphors. “Writing is pretty
isolated,” he said. “I enjoy the action. I like to fight.”
In
the miasma of incompetence after Hurricane Katrina, Barry’s
intellectual gravity and combativeness elevated him rapidly in the
public trust. When the Louisiana Legislature created a regional levee
board, Barry was urged by several local leaders to apply for a seat. The
board — the Southeast Louisiana Flood Protection Authority-East, or
Slfpa-E — would be responsible for overseeing all flood-management
projects in its jurisdiction, which includes nearly all of New Orleans.
Because the continued existence of the city depends on its ability to
manage floods, this was no small responsibility. Some of the nation’s
leading experts on flood protection were appointed to the board, among
them California’s flood-plain-management chief, a former president of
the American Society of Civil Engineers and the marine scientist
responsible for one of the first efforts, in the late ‘80s, to restore
coastal Louisiana. Barry was appointed in 2007 and functioned as the
board’s spokesman.
Barry was
curious to see how the past would inform the decisions about the city’s
future. Like many historians, he is fond of quoting George Santayana:
“Those who cannot remember the past are condemned to repeat it.” But he
never quotes Santayana without quoting Hegel: “The only thing we learn
from history is that we learn nothing from history.” For Barry, the
battle for New Orleans’s survival would be fought along the
Santayana-Hegel axis.
 |
It soon became clear
to Barry that despite its grand mission, the board was, as its
president, Stephen Estopinal, liked to joke, an “authority without any
authority.” It could not write policy, enforce law or mandate levee
construction. It could serve only as a consultant to other agencies,
particularly the Army Corps of Engineers — a body not particularly known
for welcoming outside help. (Those interested in a history of the
corps’ stubborn, hidebound nature should read “Rising Tide.”) The corps
invited the levee board to meetings, but the relationship soured when
the board’s experts raised objections to the corps’ flood-protection
plans. “They got tired of being criticized,” Barry said. “It was a
natural human response.”
Although
the board had questions about the quality of the levees being rebuilt
around the city, of far greater concern was the condition of the marsh
south of New Orleans. As the marsh disappeared, even weak storms would
inundate the city, no matter what condition the levees were in. The
board realized that it was focusing on the wrong thing: The marsh, not
the levees, had to be the priority. The board soon found itself pushing
most aggressively for work as many as 75 miles south of New Orleans.
The
state did have a plan in place to rebuild the barrier islands and
coastal wetlands. Originally published in 2007 and revised in 2012, the
so-called Coastal Master Plan was endorsed by scientists, as well as the
oil and gas industry. It listed 109 flood-risk-reduction and
land-building projects that, if executed in the next half-century, would
“create a sustainable coast”; some land loss would still occur, but not
nearly as much as currently projected. The state estimated that these
projects would cost $50 billion. (A Tulane University study estimated
the cost at $94 billion.) The state, however, had not figured out how it
was going to finance the Coastal Master Plan. The main source of
funding would be the settlement from the BP Deepwater Horizon oil-spill
lawsuits, which is expected to be as much as $20 billion. That would
leave about $30 billion.
Barry
believed that other oil and gas companies should also contribute. His
argument was simple: Because the industry conceded responsibility for 36
percent of land loss, it should pay its part: $18 billion would be a
start. The industry, unsurprisingly, preferred that the master plan be
funded by taxpayers. “Industry recognizes its role,” Chris John, the
president of the Louisiana Mid-Continent Oil and Gas Association, a
lobby that represents the major energy conglomerates, wrote in an
editorial published in The Times-Picayune. “However, our idea of a
solution is very different than that of the Southeast Louisiana Flood
Protection Authority-East.” (In an email, John claimed that “the
scientific consensus is that controlling the Mississippi River through
the levee system is the primary reason for wetland loss, not canals and
wells.”)
Barry did not believe
that the industry would willingly contribute billions of dollars to
coastal restoration. But he wondered whether it had any legal obligation
to fund the master plan. When it ice-picked the marsh, did it break any
laws? Barry thought it had. He knew that nearly every company that has
operated in the marshes since the 1920s has used permits obliging them
to maintain and repair any environmental damage it caused. In 1980,
Louisiana began adhering to a federal law that required companies
operating in the marsh — a list that includes ExxonMobil,
ConocoPhillips, Shell, BP, Chevron and Koch Industries — to restore “as
near as practicable to their original condition” any canals they dredge.
After consulting with legal experts, Barry became convinced that most
companies never filled in their canals and that the state had failed to
enforce the law. In fact, many of the projects listed in the Coastal
Master Plan called for plugging canals that should have been restored
years ago.
 |
“The reality is that our case is
overwhelming,” Barry told me. “You look at the photographs of the
damage, and you say, What the heck?” (This and the following quotation
are paraphrases; indignation not only raises the volume of Barry’s
voice, it also makes his language unfit for print.) “Are you out of your
mind? They violated the terms of their contract. They broke the law!”
The
levee board couldn’t enforce the law. But Barry believed that there was
one way around its impotence: It could sue every single oil and gas
company that had scarred the marsh in the last century. The complexity
of such a case would be daunting, baroque. Lawyers would have to
determine who dug every foot of the 10,000 miles of canals and pipelines
and then quantify, in dollars, the extent to which each endangered New
Orleans’s flood defense. The academic centers and environmental groups
Barry contacted, while sympathetic to the cause, lost interest when they
estimated how many millions of dollars would have to be spent on expert
witnesses and coastal surveys. “We didn’t only need legal ability,”
Barry said. “We needed the resources to take on Exxon, Shell, Chevron
and BP — all at once.”
He compiled
a list of private lawyers who have had success bringing major
environmental lawsuits. It was a very short list. The first name on it
was Gladstone N. Jones III, an attorney based in New Orleans who in 2006
won the largest judgment against the oil industry in the history of
Louisiana: $57 million in damages for pollution and marshland loss
caused by ExxonMobil. Jones, who resembles a midcareer Fred Gwynne and
has the deep, cajoling voice to match, didn’t need to think long about
taking the case. “It’s a pretty easy one to try, because the damage is
so clear,” he told me. “I’ve never had a case where the industry
acknowledges damage in their own papers. The science is irrefutable. The
cause is irrefutable. The oil companies didn’t fill in the canals. Why?
Because it cost money.”
Jones’s
team of coastal experts, biologists and lawyers ultimately concluded
that 97 corporations violated their permits over the last century. They
hoped, perhaps quixotically, that after filing their lawsuit, other
parishes and levee boards across the state would join the effort, with
the goal of achieving a larger settlement with the entire industry.
Barry thought the New Orleans levee board would serve as a “heat shield”
to absorb the industry’s furor, providing other parishes the cover to
file their own lawsuits. And cover was needed — there was no precedent
for an environmental lawsuit of this scope and complexity. “There are
few cases of this type in American history, where an environmental
injury produced such significant human risk,” said Oliver Houck, a
Tulane law professor who specializes in environmental law. “There’s
nothing out there like this — not in the extent of the damage or the
extent of the compensation claimed.” Jones couldn’t think of any
precedent either. “New Orleans and the greater area will largely
disappear over the next 50 years if nothing is done,” he said. “That’s
not lawyer talk or political talk. It’s reality.”
On
the morning of July 24, 2013, Barry announced the lawsuit at a news
conference held in the Orleans Levee District’s safe house, a structure
elevated 20 feet off the ground inside a warehouse built to withstand
180-mile-an-hour winds. Barry was unnerved by the ceremony of the event.
He was a veteran of book tours and television interviews, but this was
different. When it came time to deliver his main declaration, he
stumbled, announcing that the board had filed a lawsuit against “97 oil
and gas attorneys,” when he meant to say “companies.” He cursed into the microphone and reread the statement.
“From
now on,” one of his lawyers said when they convened afterward, “I’m
going to have my interns start my car.” Everyone laughed, except Jones.
“This is going to get dirty,” he said.
“What are they going to do?” Barry asked. “Not buy my next book?”
Jones
figured there would be a period of quiescence while the industry
decided how to respond. Within hours, Jindal, who was in Aspen, Colo.,
at a meeting of the Republican Governors Association, released a
statement. “This is nothing but a windfall for a handful of trial
lawyers,” Jindal said, arguing that the suit came “at the expense of our
coast and thousands of hardworking Louisianians who help fuel America
by working in the energy industry.”
The
fight over the lawsuit had entered a new phase. “I wasn’t surprised
that Jindal opposed the suit,” Barry said, “but I was surprised by what
happened next.”
‘There’s nothing out there like this — not in the extent of the damage or the extent of the compensation claimed.’
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| A damaged oil facility near Lafitte, La. Jeff Ridel for the New York Times
“Louisianians who
make money in oil buy politicians, or pieces of politicians, as
Kentuckians in the same happy situation buy racehorses. Oil gets into
politics, and politicians, making money in office, get into oil. The
state slithers around it.” These sentences, written by A. J. Liebling in
1960 at the dawn of the deep-water offshore-drilling era, seem quaint
when read today. Louisiana no longer slithers in oil; it drowns in it.
It is also high on natural gas, thanks to the recent boom in hydraulic
fracturing. And at some point along the way, the state, which has the
oil and gas, ceded political control to the industry, which needs the
oil and gas. Environmental activists have referred to Louisiana as “a
petrocolonial state,” but for much of the last century, the
petroimperium has largely been seen locally as a benign patriarch. Oil
and gas is one of the state’s largest industries, responsible for 65,000
jobs. (An industry estimate, which takes into account “indirect”
economic impacts, puts the figure at 300,000.) “If you want to know what
the Louisiana economy might be without oil,” said Andy Horowitz, a
history professor at Tulane, “look at Mississippi.”
Barry
did not expect the support of Jindal, who has received more than $1
million in campaign contributions from the energy industry. But he did
expect that Jindal would respond in a spirit of “malevolent neglect” —
that Jindal would publicly oppose the lawsuit while grudgingly
acknowledging his constitutional inability to block it. Jindal, after
all, has been under pressure to fund the Coastal Master Plan, which he
has promoted as “the largest effort in the nation to protect and restore
a coastal landscape.” He had already directed state officials to commit
every dollar of funding for the Restore Act — a federal law dedicating
80 percent of the fines paid by BP under the Clean Water Act — to the
master plan.
A number of people
close to the proceedings have said there were indications that some of
the defendants were amenable to a settlement. Louisiana’s attorney
general, Buddy Caldwell, suggested that discussions about a settlement
were underway. A one-time contribution to the master plan might benefit
the industry’s image and resolve any uncertainty about liability for
coastal land loss. “They want to get all this stuff off their books,”
Caldwell, referring to the energy industry, said on a local radio show.
“And I believe after this legislative session, we’re going to see some
big-time movement.”
 |
But soon after the lawsuit was
announced, Jindal, who is widely expected to run for the Republican
presidential nomination in 2016, indicated that he would go to unusual
lengths to ensure that a settlement would never be negotiated. The
nine-person levee board had been designed to gather experts and insulate
them from political meddling. Now Jindal declared that he would refuse
to appoint any candidates who supported the lawsuit. “To be very clear,”
Garret Graves, then the chairman of the Coastal Protection and
Restoration Authority, told a local reporter, “the governor has said
that the lawsuit is a litmus test — period.” As it turned out, the
chairman of the independent committee responsible for nominating
candidates to the levee board, Jay Lapeyre, was the board chairman of
ION Geophysical, a large oil and gas technology-service company.
Barry
happened to be one of three members who was up for reappointment.
Lapeyre began the next nomination meeting in October 2013 by saying he
was under no pressure from Jindal’s office, but noted that Barry’s
qualifications had to be reconsidered because the lawsuit had thrust him
into “the political world.” “I don’t think there is any doubt that,
except for the lawsuit, John Barry would be a shoo-in,” Lapeyre said.
(Lapeyre has since confirmed this account.) The board did not vote to
nominate Barry again.
In his place
and for the other two seats, Jindal selected candidates who opposed the
lawsuit and had little or no expertise in flood protection. Barry’s
successor was Lambert Hassinger Jr., a New Orleans lawyer whose firm,
Galloway Johnson, boasts of representing “several of the largest
drilling contractors and pipeline-transportation companies in the world,
as well as companies engaged in all phases of oil and gas production.”
Once these appointments were made, a third of the levee board opposed
its own lawsuit.
Barry might have
concluded that after eight years of public service, it was time to focus
his energies elsewhere. His book on Roger Williams had finally been
published; for the first time in years, he could consider a new book.
Instead, within days of being replaced on the board, he created his own
nonprofit group, Restore Louisiana Now. Its mission was to “[preserve]
the lawsuit and [prevent] opponents from getting the Legislature to
intervene in what should be a court process.” He raised money for
gasoline and a part-time assistant and set off on what resembled a
statewide book tour, only instead of a book, he promoted the lawsuit. A
lobbyist advised him to visit Rotary Club gatherings and the editorial
boards of local newspapers. His tour took him to Monroe, near the
Arkansas border; Lake Charles, near the Texas border; Houma, Lafayette
and Shreveport. More than 300 people showed up at the Rotary Club in
Baton Rouge, 60 in Ruston, seven in Chalmette. He delivered a
presentation in which he explained the lawsuit’s rationale and showed
before-and-after photographs of the marsh. He believed that he was
making a difference. “We take seriously the responsibility we have to
protect people’s lives,” he told Rotarians. “But how can we do that when
we don’t have any resources?”
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| Canals dredged by the energy industry south of Lafitte.
Jeff Ridel for the New York Times |
This March, the
battle over the levee board’s lawsuit moved to Baton Rouge, where the
Louisiana Legislature was entering session. Jindal appeared fixated on
having the Legislature produce a bill that would kill the lawsuit before
the courts could adjudicate it. But to do so, the bill would have to
eliminate the right of the levee board to file a lawsuit in the first
place. The bill would also have to go into effect retroactively, because
the suit had already been filed. And the bill would have to pass in the
next three months, after which the Legislature would be out of session
for another year.
There are 105
seats in the Louisiana House of Representatives and 39 seats in the
Senate. During the term, about 70 lobbyists from the oil and gas
industry were in the legislative chambers. They worked in concert with
the governor’s staff to secure support for a bill that would void the
lawsuit. “They turned on the fire hose,” one veteran energy lobbyist
said. “It was the best organized effort I have ever seen,” another said.
Opposing them were 10 lobbyists hired by the law firms representing the
levee board and the Sierra Club, which helped finance the effort. They
were joined in Baton Rouge by Barry, Gladstone Jones and several other
members of the board’s legal team.
Despite
being so severely outnumbered, having little experience in state
politics and being seen as an outsider even by members of his own
coalition, Barry remained optimistic. If he could sway hostile crowds at
Rotary Clubs, shouldn’t he be able to persuade enough legislators to
kill a bill? Besides, legislators didn’t have to come out in favor of
his lawsuit; they only had to agree to let the courts, not the
Legislature, decide the case. There were other reasons to suspect that
he had an advantage too. He had survived a smear campaign — he was
called an “environmental extremist” (“That’s the worst smear they can
think of in Louisiana”) and an “aspiring author” — and direct-action
campaigns were being staged across Louisiana, criticizing the oil and
gas industry’s meddling in state politics. Virtually every newspaper
that published an editorial on the issue condemned the state’s effort to
kill the lawsuit, including traditionally industry-friendly papers like
The Lake Charles American Press, The Houma Courier and Acadiana
Business. Three former governors of Louisiana came out in support of the
lawsuit, as did a majority of southern Louisianians, by a margin of
more than three to one — at least according to a poll commissioned by
Restore Louisiana Now.
The
intensity of the industry’s lobbying effort seemed to be backfiring,
rousing the suspicion of some legislators, particularly those who were
practicing lawyers. “If the industry doesn’t believe the levee authority
has any standing to file a lawsuit,” said Representative John Bel
Edwards, a Democrat from Roseland who is running to succeed Jindal as
governor, “then they should go to court and file a motion. But rather
than go to the courts, they ran to the Legislature. That was the first
indication that the levee board’s claims were not frivolous at all, but
had merit.” Senator Daniel Martiny, a Republican from Jefferson Parish
who opposed the effort to destroy the lawsuit, put it more directly.
“The bottom line is the oil industry has been a big supporter of a lot
of people, myself included,” he said. “At times, I was even one of their
heroes. And I had people way up in the oil-industry hierarchy tell me,
We know you’re right about this, but we don’t have any other way to stop
this.”
One by one, throughout the
spring, bills written to kill the lawsuit failed — more than a dozen in
all by the last week of the legislative session. Some of the bills were
seen as overly broad, raising the fear that they might endanger the
incipient BP settlement; others were voted down over constitutional
concerns. In the final week of May, a lobbyist for the lawsuit told
Barry, “If we voted today, we’d win.”
‘There
are a whole lot of people in this state that have raised their children
and got their education based on their experience in the oil and gas
industry.’
 | ||
| An oil facility operated by the Hilcorp Energy Company. |
Louisiana grants its
governor more powers than nearly any other state in the nation. One is
the ability to veto any project in the state’s operating budget. During
the final days of the legislative session, Barry watched helplessly as
legislators who had pledged support for the lawsuit seemed to
mysteriously change their minds. According to one pro-lawsuit lobbyist,
Representative Gene Reynolds, a Democrat from Minden, told him that
funding for a new roof for a V.F.W. hall in his district would be
eliminated if he didn’t support a bill against the lawsuit. (Reynolds
disputes this account. “My vote was based on information from my
district,” he wrote in an email, “which depends heavily on oil and gas
and the related benefits.”) Another pro-lawsuit strategist claimed that
Senator David Heitmeier, a Democrat from Algiers who is an optometrist,
had pledged his support for the lawsuit. When the time for the vote
came, however, Heitmeier opposed the suit; a week later, Jindal signed a
bill allowing optometrists to perform some minor eye surgeries — a pet
cause of Heitmeier’s. (Heitmeier did not respond to repeated queries.)
While
this was going on, oil executives with local political influence showed
up in the legislative chambers “to watch, to be muscle,” as the
lobbyist put it. The Houma delegation was visited by a senior BP
lobbyist. Although Houma is the seat of Terrebonne Parish, one of the
most endangered of the coastal parishes, all of its legislators emerged
from their conversations in favor of the bill. “You could feel the
weight coming down,” Barry said. “You could see them getting peeled off
one at a time, through threats or promises. It was disheartening.”
Many
legislators didn’t need to be persuaded. In late May, Senator Robert
Adley, a Republican from Benton, told one reporter: “I think it’s absurd
to say that the oil and gas industry has damaged the coast. They did
what they were told to do.” This is a claim that most industry
representatives have not been brazen enough to make. Then again, Adley
himself is an industry representative. Since 1993, he has been the owner
of the Pelican Gas Management Company, and before that he was the
president of ABCO Petroleum for 20 years.
Adley
is not the only one. State legislator is a part-time job, and many work
in the oil and gas industry, too. Representative Gordon Dove, a
Republican from Houma who is the chairman of the Committee on Natural
Resources and the Environment, owns Vacco Marine, which provides vacuum
trucks for the cleaning of oil tanks and has received many complaints
from environmental regulators. Representative Neil Abramson, a Democrat
from New Orleans, is a lawyer who has defended oil and gas companies in
environmental-damages lawsuits. Representative Jerome Richard, an
independent from Thibodaux, is a sales manager for Byron E. Talbot, a
contractor employed by Chevron. Representative James Morris, a
Republican, is an independent oil producer from Oil City.
But
many of these legislators also live in coastal parishes and have
watched for years as the lands they represent steadily disappeared.
Richard’s district includes Lafourche Parish, which has suffered some of
the most extreme land loss in the state, with an especially high
proportion of that loss coming from canals dredged by the industry.
Richard didn’t like the idea of a bill that would kill a lawsuit already
in progress and pledged his support to Barry. But he ultimately decided
that such a bill would be constitutional, and everyone else in his
delegation opposed the lawsuit, so he went along. “I didn’t want to be
the only one voting against it,” he told me.
Adley
spoke for many critics of the lawsuit when he said he was convinced
that none of the 97 oil and gas companies had done anything illegal. He
cited as proof testimony given before a Natural Resources Committee
meeting by J. Blake Canfield, an attorney for the state’s Department of
Natural Resources, who said, “We do not have any evidence that the
permits have been violated.” Canfield, however, also added that the
state had not looked into permits older than 1980. Chris John, the
president of the L.M.O.G.A., the industry lobby, makes a different
argument. The lawsuit, he wrote to me in an email, will endanger the
Coastal Master Plan: “Litigation will actually slow the process of
addressing coastal land loss. This is a bad result for the community.”
I
asked Adley whether he thought his position as an oil executive might
constitute a conflict of interest. After all, Senator Eric LaFleur, a
Democrat from Ville Platte and a lawyer at the firm that represents the
Louisiana Oil and Gas Association, recused himself from all votes
related to the lawsuit for this reason. Adley’s voice sharpened: “I’m
elected by the people in my district. They know who I am. They know what
industry I’m in. They choose to send me there. It’s their right to make
that decision — not yours, not anyone else’s. People in the oil and gas
industry do support me because, yes, I’ve been in the industry and,
yes, I understand them. That’s important to them.” He continued: “Let me
tell you something: There are a whole lot of people in this state that
have raised their children and got their education based on their
experience in the oil and gas industry. At one time, 70 or 80 percent of
our entire budget and employment came from that industry. If you took
all those people out of the government here, you wouldn’t have much
left.”
| |
| Canals dredged by oil industry Lafite La Jeff Ridel for the New York Times |
Jindal’s best remaining
chance to kill the lawsuit took the form of a bill that was introduced
by Senator Bret Allain, a Republican from Franklin, and written
primarily by Jimmy Faircloth, Jindal’s former executive counsel. But
when it looked as though it would not make it out of the Senate
Judiciary Committee, Adley, a member of that committee, pulled off an
unusual — and, Gladstone Jones has since argued before the Federal
District Court for the Eastern District of Louisiana, unconstitutional —
maneuver. He reassigned it to Allain’s Natural Resources Committee.
There it replaced the text of a different bill. The switch occurred so
quickly that those who were sitting in the Natural Resources Committee
room, including Barry, were told that no written copy of the bill was
available for public review, but the committee voted to send the bill to
the full Legislature. Allain was candid about the intent of his bill.
Just as Jindal spoke openly about his determination to prevent the
lawsuit from proceeding and just as Lapeyre admitted that Barry’s role
in the lawsuit was sufficient to deny him renomination, Allain announced
that his goal was “to kill the lawsuit.”
Once
it became clear that the bill would pass, some peculiar votes — or
nonvotes — followed. Abramson, the oil and gas lawyer from New Orleans,
declined to vote. Senator J. P. Morrell, another New Orleans lawyer and a
Democrat, voted for the bill and later said that he had not been
present for the vote and that his machine had malfunctioned. Senator
Gregory Tarver, a Democrat from Shreveport, told a pro-lawsuit lobbyist
that he had voted for the bill by accident. No one who voted against the
bill claimed it was by accident.
One
peculiarity about the fight over the lawsuit is that few industries are
in greater need of coastal restoration than oil and gas. The next major
hurricane that hits the Gulf Coast will put at risk billions of dollars
of industry infrastructure — refineries, oil tanks, terminals and
pipelines. This is why the industry endorsed the Coastal Master Plan. A
second oddity is that Jindal, a hero of the anti-tax faction of the
national Republican Party, who last year tried to eliminate the state’s
corporate and income taxes, has now put himself in the position of
allowing the largest single bill facing his state — for the balance of
the Coastal Master Plan — to fall almost entirely upon taxpayers.
The
industry, by trying so strenuously to destroy the lawsuit through an
act of the Legislature, may have finally overplayed its hand. “Louisiana
has lost a couple of its gods in the last decade,” Oliver Houck, the
Tulane law professor, told me. The first god was the Army Corps of
Engineers, which once could do no harm. Hurricane Katrina put an end to
that. The BP oil spill, and the company’s inept early response in its
aftermath, shook local confidence in the industry for the first time in
generations. The fight over the lawsuit represents a new milestone.
“There’s been a sea change in public opinion,” Houck said. “I don’t
think [the industry will] ever recover the kind of uncritical acceptance
that they have enjoyed in Louisiana for the last century.” As Barry
said: “The idea of making the industry live up to its legal
responsibility is not going to die.”
The
lawsuit, however, might. Gladstone Jones has requested that a federal
judge rule on whether the bill signed into law by Jindal is
constitutional and indeed restricts the lawsuit from proceeding. Judge
Nannette Jolivette Brown of Federal District Court will hear that
motion, along with motions filed by energy companies to dismiss the
suit, on Nov. 12. At the same time, Jindal continues his effort to
replace levee-board members with lawsuit opponents. He has appointed
four board members so far, which leaves the board with a slim 5-to-4
majority, at least for now, in favor of its own lawsuit.
‘The idea of making the industry live up to its legal responsibility is not going to die.’
 |
| The oil facility operated by Hilcorp Energy Jeff Ridel for the New York Times |
Should the lawsuit
fail one way or another, Jindal will find himself under tremendous
pressure to offer an alternative method of funding the master plan. Even
Jerome Zeringue, the current chairman of the state’s Coastal Protection
and Restoration Authority, acknowledges that the oil industry will have
to make a significant contribution. “We’re in no way denying the fact
that there’s some culpability,” he told me. “Obviously they recognize
this and have admitted there’s a liability based upon that.” Without the
threat of a lawsuit, Jindal will have to negotiate a deal with the
industry himself. Or he can delay until his second term ends, in January
2016, and let his successor deal with it.
A
backup plan would be for the attorney general, Buddy Caldwell, to file a
lawsuit on behalf of the state. This is the path advocated by Houck,
Representative Richard and many others, but few in the state expect
Caldwell to do any such thing. Another possibility is for a group of
residents to file a class-action lawsuit demanding restitution from the
industry. Though no specific path seems as effective as the original
lawsuit, Barry remains optimistic. He has spoken privately about his
backup plans. He refers to them as Plan B, Plan C, Plan D and Plan E.
“Plan F,” he said, “is moving out of New Orleans.”
Barry
originally pledged not to write about the lawsuit, mainly because so
many opponents accused him of having ulterior motives for joining the
levee board in the first place. (“I believe that this entire issue is
really put together for a few trial attorneys and one guy who’s writing a
book,” Senator Adley told me. “Today you and I have had the pleasure of
adding one more chapter to his book.”) Barry forced himself not to take
notes about his experiences over the last several years to avoid the
temptation to write a book.
He is
now reconsidering. The book would be a kind of sequel to “Rising Tide,”
about “the interplay between the river, the sea, politics and oil over
the last century.” Though it would “be about a lot more than the
lawsuit,” he said, the story would most likely culminate with the battle
to make the industry pay for its share of the Coastal Master Plan. In
this climactic chapter, a figure named John Barry would appear on the
scene. But John Barry, John Barry insists, would be just a minor
character.
Map source: Jamon Van Den Hoek, NASA's Goddard Space Flight Center.
Map note: Land areas are derived from Landsat imagery.
Digital Design: Meghan Louttit
Map note: Land areas are derived from Landsat imagery.
Digital Design: Meghan Louttit
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