Baton Rouge, Louisiana
The April 15 evening session of the Louisiana Senate began with a presiding officer working his way through a calendar of congratulatory resolutions. Senators wandered from the floor to the galleries adjacent to the art deco chamber, talking with staffers, conferring with lobbyists, and backslapping with visitors. The workaday chaos continued even as the presiding officer began a series of votes for final passage of bills.
Then a short balding Republican from northwestern Louisiana walked toward the front of the chamber. By the time Robert Adley was recognized by the chair, the body had come to order and senators were at their desks.
Adley, who until 2012 owned a gas-distribution company and is a consultant with deep ties to the industry, was introducing one of 10 related bills promoted by Republican Governor Bobby Jindal. The bills would undermine the independence of a flood-protection authority that had committed an act of political heresy in a petro-state: it sued oil, gas, and pipeline companies to compel them to repair tens of billions of dollars in damages they had done to coastal wetlands that buffer storm surges.
Adley’s Senate Bill 553 would retroactively require the approval of the governor and a legislative committee to pay private attorney fees. As neither Jindal nor Republican majorities in the Legislature would approve, the bill would effectively kill the lawsuit and cost the state $50 billion (or more) in reparations the industry would have to pay to restore coastal wetlands. (Louisiana’s total budget for Fiscal Year 2013-2014 is $25.4 billion.)
The lawsuit was filed in state court last year, then removed to federal court on a motion filed by Chevron, one of 97 defendants named by the flood-protection authority. A state district court has already ruled one challenge to the suit by an oil and gas association as frivolous. New Orleans Federal District Judge Nannette Jolivette Brown is deciding whether the case will be tried in state or federal court.
Louisiana’s flood-protection authority had committed an act of political heresy in a petro-state: it sued oil, gas, and pipeline companies to compel them to repair tens of billions of dollars in damages.
Against the tide
John Barry’s office sits atop Tulane University’s Health Sciences Center on Canal Street, a short walk from the French Quarter. Barry is an author, most widely known for Rising Tide, an account of the great Mississippi flood of 1927. The lawsuit Governor Jindal has resolved to kill was Barry’s idea.
After Hurricane Katrina, activists in New Orleans promoted a constitutional amendment to create a flood-protection authority. In a city rebuilding after an unprecedented natural disaster—made worse by political and engineering failures—the amendment won by 94 percent. Statewide, it carried 81 percent of the vote.
To insulate the Southeast Louisiana Flood Protection Authority-East (SLFPA-E) board of directors from political influence, voters approved a nominating committee dominated by deans of engineering colleges and leaders of scientific associations. The committee submits nominees to the governor.
Barry, who immersed himself in the arcana of Mississippi River levees (and regional politics) to write Rising Tide, was the only non-scientist on the original board.
The SLFPA-E board also included the chief of floodplain management for the California Department of Water Resources; a University of North Carolina engineering professor who spent 20 years developing a widely-used storm-surge modeling system; and a former president of the American Society of Civil Engineers.
Board members recognized coastal land loss as a serious problem. Over 75 years, 1,900 square miles of coastal marshland and islands have washed into the Gulf of Mexico. The U.S. Geological Survey reports that 16.57 square miles of coastal wetlands continue to disappear each year. Islands and marshland that once buffered Gulf storm surges are gone.
Thirty-six percent of that marshland, according to studies cited by Barry, has washed into the Gulf through ever-widening canals that oil companies dredged and failed to backfill when drilling operations ceased.
Barry told me that in 2012, while he was still on the board (his term expired and the governor did not reappoint him), he contacted Garret Graves, then Jindal’s “coastal czar.”
“I told him we were thinking about filing a lawsuit and suggested to him that we go to Chris John, the former congressman who heads the [Louisiana] Mid-Continent Oil and Gas Association, and talk about sitting down with the oil companies and discussing a statewide deal.”
Graves had already approached oil and gas executives. He told Barry: “they are not there yet.”
“He goes to the industry and says why don’t they help clean up the problem they created,” Barry said. “And they say, ‘Take a hike.’”
The SLFPA-E board unanimously voted to sue and retained three Louisiana law firms on a contingency fee basis. In July 2013, they named 97 oil, gas, and pipeline companies as defendants in a civil suit that would require them to fund a restoration project that could cost as much as $100 billion if fully implemented.
Off the board, Barry created the nonprofit Restore Louisiana Now, and is relentlessly defending the lawsuit.
“A lawsuit with nobody to prosecute it”
Jim Swanson is a partner at one of the firms hired by the flood-protection authority. Suing multiple corporate defendants—ExxonMobil, BP, ConocoPhillips, Koch Industries, to name a few—is beyond the capacity of one assistant attorney general assigned to SLFPA-E. Swanson told me that the three firms already have 1,200 to 1,300 hours—and by his estimate $1 million—in the case.
The fee agreements they signed are similar to arrangements states made with private attorneys hired to sue the tobacco industry in the mid-1990s. The lawyers do not bill the state, but if they prevail, they earn large contingency fees.
Thirty-six percent of that marshland has washed into the Gulf through ever-widening canals that oil companies dredged and failed to backfill when drilling operations ceased.
Swanson said the law and the facts make for a strong case against the industry.
For more than 100 years, Louisiana courts have ruled on a principle known as “servitude of drainage.”
“When what you do on your property creates an unreasonable burden on another property owner, you are called upon to restore it to its original condition,” Swanson said.
Aerial slides of coastal wetlands the attorneys have collected depict a progressive loss of marshland and islands that begins with one or two oilfield canals dredged through a marsh and ends with extensive stretches of wetlands dissolving, sometimes into open water.
The attorneys have also gathered permits issued for drilling operations in the coastal wetlands.
“When you look at the language in those permits, in many cases very specific language, what you find is that at the end of the operation the companies were required to plug the canals,” Swanson said. “They didn’t do so.”
Swanson said oil companies are not responsible for all the coastal erosion.
But he points to “30 peer-reviewed studies done by universities, by state and federal agencies, and by the oil industry itself … [E]very single one found that the oil and gas industry was a significant contributor to the loss of coastal wetlands.”
If legislators and a governor aligned with oil and gas abrogate the agreements signed a year ago, the result will be “a lawsuit with nobody to prosecute it,” Swanson said. And no money to pay for wetlands restoration.
A Coastal Protection and Restoration master plan has identified $50 billion in projects, some urgent because of ongoing flooding. The plan is not funded. If the industry cannot be compelled to pay, taxpayers will pick up the tab.
Jindal has his own plan, according to The Gambit, New Orleans’ alternative weekly. The governor wants to sue the U.S. Army Corps of Engineers, a long shot, to compel the federal agency to pay for restoration, shifting costs to taxpayers in all 50 states.
The vote on Adley’s contingency fee bill pitted senators from north Louisiana against senators from south Louisiana, Democrats against Republicans, and black senators, most of whom represent districts south of Interstate 10, against white senators.
But it was a Republican who had once served as an appellate court judge who warned that a bill that retroactively abrogated contracts was illegal and that the Legislature was inserting itself in a dispute that “should by all rights be resolved in a court of law.”
Senator Bob Kostelka’s amendment that would have stripped the retroactive measure from the bill failed 20-17 and the bill went on to pass 23-15.
General Honoré’s army
For most Americans over 30, the iconography of Hurricane Katrina remains vivid: thousands of (mostly black) New Orleanians huddled in desperation around the Superdome; families stranded on roofs of homes immersed in flood water; George W. Bush looking down on the city from the comfort of Marine One, and using the St. Louis Cathedral as a backdrop for a floodlit media event in a city where not even hospitals had electrical service.
Then there was Lt. General Russel Honoré, the cigar-chomping Creole in combat fatigues and a black, Army-issue beret, who led federal troops into the chaotic city.
Honoré was more than a man on horseback who demonstrated that the federal government could take on big problems.
He has traced his family history back to enslavement on the Destrehan Plantation. He attended segregated schools in Pointe Coupee Parish. The commanding officer of Joint Task Force Katrina recognized the race and class subtext in national media reporting on the aftermath of the storm.
Honoré complained about cable news channels’ perseverating rebroadcast of clips of black men breaking into stores.
“They call it looting, I call it survival,” he said.
He rode around the city, ordering soldiers to “point those damn guns down.”
The general the media called “the ragin’ Cajun” (ignoring racial and cultural distinctions between Cajuns and Creoles) changed the narrative. Troops were in New Orleans on a humanitarian relief mission.
At six-two, in khaki pants and shirt, and a khaki Army cap, Honoré was easy to pick out in a crowd at an Earth Day event at Louis Armstrong Park in New Orleans in mid-April.
After 37 years in the Army, the retired general has found a new mission.
“Almost a year ago, I got a call from Bayou Corne,” Honoré told me.
Bayou Corne is a small community west of New Orleans, where a 30-acre sinkhole that opened up two years ago continues to grow and seep natural gas. More than 350 residents have been forced out of their homes.
“Those people down there were abandoned by the state government, the federal government, and the company [Texas Brine] that created the sinkhole,” Honoré said. “They called me because they thought I could bring some attention to their situation.”
After he took up the cause of residents of Bayou Corne, Honoré began to get calls from environmental victims in other communities: New Orleans, Lake Charles, Baton Rouge, and Mossville.
He now leads a coalition of environmental groups he calls the Green Army and is working to create a new narrative: “Clean air, clean water, and clean food are human rights. The culture of this state has to be changed.”
Honoré is a one-question interview. Ask him about his organization and he describes a state that functions like a minerals-extraction colony.
“The two agencies that regulate the industry, the Department of Natural Resources (DNR) and Department of Environmental Quality,” Honoré said, “they promote oil and gas companies and provide them exceptions to the Clean Water Act and Clean Air Act. That’s what they do.”
Regulators working in collaboration with industry, Honoré said, put peoples’ lives at risk.
Honoré has visited Mossville, a small historical freedmen’s community near Lake Charles. Fourteen industrial facilities surround the town, yet the Jindal administration is providing $2 billion in incentives for a $21-billion expansion of a South African chemical plant in one of the most polluted towns in the nation.
“In February, the Department of Health tested the water,” Honoré said. “It is the color of tea, and it smells. They said it’s fine to drink. But they’re not drinking it.”
On another front, the Green Army is backing a bill in the Legislature to stop ExxonMobil and Georgia Pacific from pumping from the aquifer Baton Rouge residents use for drinking water.
Russel Honoré: “In February, the Department of Health tested the water. It is the color of tea, and it smells. They said it’s fine to drink. But they’re not drinking it.”
“Together they use 50 million gallons of water a day, more than five parishes,” he said. “Georgia Pacific, a company owned by the Koch brothers, says that if we make them use water from the river, they will close their plant and take 1,200 jobs with them.”
Using river water would cost “pennies on the dollar,” yet both companies refuse.
Louisiana, Honoré said, is run “by and for the oil and gas industry.”
“There are 6,000 unplugged oil wells in the state,” he said. “The drilling companies are required by law to plug them when they finish drilling. But the DNR lets them leave them, because of a provision that says if you might come back to them, you don’t have to plug them. They’re called ‘orphan wells.’ You tell me, how the hell does an oil well become an orphan?”
Honoré referred to Adley’s attempt to bust the fee agreements in the coastal wetlands lawsuit.
“You saw what happened to [Senate Bill] 553 last week,” he said. “They are going to let the wealthiest industry in the history of mankind walk away from what it did on the coast.”
“Senator Adley goes up to Baton Rouge for three months, collects his $18,000 salary. But he’s an oil and gas man, he might as well be a lobbyist for his day job. He ought to recuse himself. How much money has he taken from the industry? More than $100,000?”
Adley, in fact, has received $120,000 from oil and gas interests; Jindal, $1 million.
Honoré said he will take no salary, raise no money, nor rent an office. He is an organizational and educational nexus, the point man for existing environmental groups, traveling the state in a long-term campaign to “change the culture.”
“General Honoré makes a phone call and gets a meeting with Exxon,” Rolfes said. “We can’t do that.”
Honoré’s stump speech addresses themes larger than the oil industry.
“Why is Louisiana the third-largest energy producer, but the second-poorest state in the nation?”
“There’s 100 refineries and chemical plants between New Orleans and Baton Rouge. They’re making money. Where’s all that money going?”
“Why don’t our kids have broadband in their schools?”
“Why are we ranked 46th in public education?”
“Why do we have some of the lowest health care standards in the nation?”
“This is not politics,” Honoré said, “this is warfare.”
During the week I spent in Louisiana, Honoré had addressed a group of retired professors and a Green Army meeting in Baton Rouge. He was the marquee name at the New Orleans Earth Day event on Sunday, then returned to Baton Rouge to work the Legislature on Monday and Tuesday.
I asked Honoré if he would consider building a gubernatorial campaign around his message.
“I’m asked that all the time,” he said. “They haven’t pissed me off enough yet.”
“We’re washing away”
If that’s all that’s holding him back, perhaps this session of the Legislature will make him a candidate.
Toward the end of the Senate debate on Robert Adley’s contingency fee bill, a Democrat-turned-Republican delivered an impassioned floor speech about life on the coast.
“When you come from Terrebonne Parish like I do, when you are elected by a chain of events, couple of hurricanes that put water up to my waist in my house that my daddy built and died in! We take this seriously where I come from,” Norby Chabert said, his voice rising in emotion.
But Chabert, who calls himself “Mr. Oil and Gas,” said the wetlands in his district were too far gone, and that the flood-protection authority should focus on protecting people, not trying to hold the oil industry accountable for erosion that started in the 1800s.
Yet Chabert’s 20th Senate District grows smaller each year, as erosion eats away coastal marshes and several of its towns are included on the inventory of communities that will have to be abandoned within 10 years due to rising water.
Seven years ago, the director of the Barataria-Terrebonne National Estuary Program warned that without wetlands remediation, Gulf waters will reach the suburbs of New Orleans. Open water where there was once marshland will impact the oil and gas industry that created the problem, in particular during tropical storms. And the estuaries that are dissolving into open water produce half of the nation’s wild shrimp and a third of its oysters and blue claw crabs, according to The Times-Picayune, $103 billion in assets at risk.
Senator Chabert represents several communities that are sinking into coastal bays, but he also represents Houma, the largest oil-exploration town in the South.
“Very few people in my district would say that pipeline canals cause coastal erosion,” Chabert said during Senate debate.
The Pointe-au-Chien Indian community is a string of 75 houses and trailer houses on a narrow peninsula where the land ends in south Terrebonne Parish. Most structures sit atop tall wooden pilings. A French-speaking tribe of 600, the Pointe-au-Chien have lived in South Louisiana since the 1800s.
I found Pierce Billiot, a burly gray-haired man with a gnarled weathered face, working on a shrimp boat dock on Pointe-au-Chien Bayou. I asked him about erosion and subsidence in the area.
Without wetlands remediation, Gulf waters will reach the suburbs of New Orleans.
“There’s a cemetery right down this bayou,” he said. “Near a community where people used to live. My granddaddy is buried down there. The water goes up past him now. He wasn’t underwater when we buried him down there.”
“Every year, the land gets lower and the water gets higher,” Billiot said.
Billiot led me to the home of Donald Dardar, the second chairman of the tribe. Dardar, a short wiry man with graying hair, is a commercial fisherman.
I spoke with him under his large elevated house between fiberglass boats on the front lawn, a small chicken coop, and an old wooden pirogue that looked like it might still float.
“The oil companies have been cutting canals where there used to be solid land,” Dardar said. “They gutted that place with their rig canals. Then the land started washing away.”
Saltwater intrusion has killed trees and grass as tides flow into what was once a freshwater or brackish estuary.
“We got so much salt water,” Dardar said, “that we got no more mosquitoes. It’s killing them off.”
“We used to have islands out there to protect us,” he said. “But right now there’s no more islands. Now, it’s almost open water all away to the Gulf.”
Dardar no longer believes that Baton Rouge or Washington will act fast enough to save the land the tribe lives on. The industry that dominates the state always has its way.
“We’re washing away slowly,” he said.
“One storm after another, we’re washing away.”
Lou Dubose is the editor of The Washington Spectator.