Saltwater incursion and wetlands loss associated with industrial use of coastal Louisiana have worsened the exposure of populated areas to flooding, according to official reports and scientific studies. Now a flood protection board representing much of the New Orleans area is suing energy companies demanding a contribution of “billions” of dollars, though its spokesman acknowledges that government actions were also responsible for weakening the natural environmental buffer. John Schwartz quotes me in his New York Times report today, though without the chance to study the suit’s contentions it was hard for me to make any more than the most preliminary observations.
P.S. More details emerge in an expanded version of the story as well as in a Thursday Washington Post report. The agency is suing “about 100” energy companies. Canal construction and other actions taken by the U.S. Army Corps of Engineers were important contributors to the environmental losses, but principles of sovereign immunity restrict suits against the Corps. Republican Louisiana Gov. Bobby Jindal said “that the levee agency had usurped his authority and that the suit would enrich trial lawyers” and demanded that the Southeast Louisiana Flood Protection Authority “cancel contracts with the four law firms that had agreed to handle the case on a contingency basis.”
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Although the canals, produced waters pits, and other O & G activites have harmed the swamp south and east of NOLA, which increases vulnerability to a storm surge, the real damages are due to the annual diversion of about 30% of the Mississippi River’s water by the Old River Control Structure. Built by the US Army Corps of Engineers and completed in 1963, the ORCS diverts the main channel’s water (and sediment) into the Atchafalaya River and its basin. This does several things. It prevents a repeat of the types of severe flooding experienced by southeast Louisiana and the NOLA area in the past (think 1927 and Randy Newman’s song “Louisiana. They’re trying to wash you away”); prevents the Mississippi river from changing course so that the Morgan City, LA, area becomes the deep water port, and NOLA and Baton Rouge are left with silting-in lake front property along what used to be the Mighty Mississippi; and diverts the sediment into the Atchafalaya River Basin, which is expanding and becoming an increasingly important fishery spawning ground, whereas the bayous south and east of NOLA are subsiding and dying. Another problem is that the Army COE, when it dredges the Mississippi River channel, takes the spoil and dumps it in the Gulf off the shelf, so that that sediment goes into thousands of feet of ocean, instead of depositing that spoil in the bayous south and east of NOLA, and so re-building them. Eventually, NOLA will probably be at the end of narrow fingers of land along US Highway I-10 and River Road (US Highway 90) and the levees on either side of the Mississippi. If/When that comes to pass, a Hurricane Party will be a real reason to drink hardy, because tomorrow . . .
Given the $Billions in taxes and job payrolls that the O & G industry has paid to Louisiana over the past 50 years, you have to wonder if the Defendants will be entitled to a set-off against the alleged damages. (Oh, wait — set-off is a common law doctrine, and Louisiana is a civil law jurisdiction. Never mind!). If the liability is in solidio (Louisiana legal lingo for joint and several liability), any Defendant held liable is liable for 100%, and will have to try to collect contribution (and, won’t be entitled to any damages reduction due to nuisance by the Army COE). Another example of “Just Us” in action.
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