By Karen Savage
After an anxious weekend, Louisiana residents let out a collective sigh of relief when Hurricane Nate took a turn to the east, sparing them from a direct hit. But they also know that relief is temporary. Especially in Louisiana’s coastal communities, vulnerability to the impacts of climate change is a fact of life and increasingly, communities are looking for how to pay for them.
Several Louisiana parishes—the equivalent of counties in other states—have filed lawsuits alleging hundreds of fossil fuel companies violated their coastal use permits by failing to clean up pollution and by failing to restore the marsh wetlands to their original condition. The suits seek to recover “damages, restoration costs and actual restoration.”
The suits, filed by parishes including St. Bernard, Jefferson, Plaquemines, St. John the Baptist, Vermillion and Cameron, do not specifically mention climate change as the reason for the suits, but the impacts in question are clearly direct impacts of rising seas driven by global warming. Oil and gas production have left severe damage to the wetlands that protect Louisiana from the sea.
Thousands of miles of long, straight canals were dug by the oil and gas industry, cutting across wetlands to move equipment and to build pipelines. No longer needed, the canals now carry salt water inland, killing marsh grass. Soil once held in place by grass roots loosens and washes away as the plants die.
Canals also allow storm surges to race inland unimpeded, worsening erosion and increasing flooding in nearby communities. Scientists say rising sea levels caused by climate change are fueling increased storm surges.
According to coastal use regulations, permitted sites, including canals, “shall be cleared, revegetated, detoxified and otherwise restored as near as practicable to their original condition upon termination of operations to the maximum extent practicable.”
“If they would have restored all that land, we would not be losing all that land we’ve lost over the last 60 years,” said John Carmouche, whose Baton Rouge-based law firm, Talbot, Carmouche & Marcello, is representing each of the parishes that have filed suits so far.
Each storm that arrives from the Gulf brings a reminder of the importance of the land lost.
“We are on life support down here in terms of those coastal wetlands which are enormously important,” said Rob Verchick, a professor of environmental law at Loyola University New Orleans and senior fellow in the Disaster Resilience Leadership Academy at Tulane University.
“They’re definitely well-grounded claims and I expect that the parishes have a strong hand in this, mainly because the claims are pretty straightforward and the law’s pretty clear in this area,” said Verchick.
Companies operating in Louisiana’s sensitive coastal areas—known as the Coastal Management Zone—are required by law to obtain coastal use permits in addition to other permits required by law.
Coastal use permits are issued by the Office of Coastal Management, in conjunction with local parish officials and are required for “projects that may impact coastal waters such as any project involving dredge or fill, water control structures, bulkheads, oil and gas facilities, marina or residential development.”
According to the U.S. Geological Survey, Louisiana accounts for 90 percent of coastal wetland loss in the continental United States. Since 1932, 25 percent of Louisiana’s coastal land has been lost.
Representatives of the oil and gas companies say they aren’t to blame.
“The reality is we don’t feel in the industry responsible at all in any way for the coastal erosion,” said Don Briggs, president of the Louisiana Oil and Gas Association.
“There has been interpretation of whether it [wetlands] should be put back to original condition, you know, which is kind of hard to do,” said Briggs, who said that was never the intention of the law.
“The climate has been changing for thousands and thousands of years. Do I believe that fossil fuels is causing all this? I don’t,” said Briggs, who acknowledges the coast is sinking, but said he blames sea level rise, without acknowledging that sea level rise is driven by global warming. He also blames a fault line that runs through southern Louisiana for causing land loss and subsidence.
“If we don’t hold people accountable in the oil and gas industry and elsewhere, we don’t have a fighting chance at all,” said Verchick. “So this is all part of preparing for climate impacts and the climate impact is sea level rise and the way to prepare for that climate impact is to make sure that we are taking care of our wetlands in other ways and that we are holding people accountable when they destroy them.”
According to Carmouche, operators are required by law to obtain a second coastal use permit when completing restoration, so it’s easy to see who has followed the law because those companies will have two permits on file.
Either way you look at it, he said, companies that don’t have two permits are in violation – either they violated the initial permit by not completing restoration or they did complete restoration but violated by not obtaining that second required permit.
“So, it’s easy to say – because we reviewed all the permits – we see you operated, we see you discharged, we see you destroyed the marsh, there’s no permits for you to fix it, so that’s the violation,” said Carmouche.
This is not Louisiana’s only attempt to hold oil and gas companies accountable for damages to the coast.
In July 2013, the Southeast Louisiana Flood Protection Authority–East (SLFPA-E), a levee board that oversees flood control, filed suit against nearly 200 oil and gas companies demanding they pay to restore wetlands damaged by dredging, drilling and by running pipelines.
That suit was originally filed in state court, but oil companies succeeded in moving it to federal court, where it was dismissed by a judge who ruled that in part that the oil companies had no responsibility to protect the plaintiff—a levee board—from coastal erosion.
Carmouche said he is confident the parishes have standing in the latest round of suits, which are narrowly focused on violations of state coastal zone regulations.
State law says certain state and parish officials are authorized by law to enforce coastal use permits. Like the levee board suit, oil companies have tried to move the parish suits to federal court, but because the complaints allege no violations of federal law, all have been remanded back to state court.
And unlike the levee board suit, the parish suits have the support of the governor’s office.
Gov. John Bel Edwards, who took office in January 2016, has said if parish officials don’t sue, the state will.
That doesn’t sit well with Briggs.
“They got all the coastal parishes all excited that they’re going to get all this money so they all joined in on these lawsuits,” said Briggs, who said it’s “a bunch of greedy trial lawyers” that are driving the suits.
Verchick doesn’t see it that way.
“That’s not really related to whether or not the industry has broken a law,” he said, referring to frequent attacks by the oil and gas industry on plaintiffs’ attorneys in the press.
“It doesn’t seem to me that they’re making very strong arguments against the substantive allegation, which is that they were dumping toxic substances and radioactive materials into the marshes and they weren’t cleaning it up.”
“They’ve basically been arguing that all of this should be left in the hands of the taxpayers to pay for whatever it takes out of the Coastal Master Plan,” said Verchick. Louisiana’s Coastal Master Plan is a 50-year $50 billion series of projects designed to protect communities and restore the coastal ecosystem.
According to Carmouche, the oil companies knew the day of reckoning was on the horizon.
“Their documents also show ‘we may be reaping the benefits today, by lobbying, by dealing with the politicians, but some day, if they wake up, we might have to pay’,” he said. “Well, today’s the day.”
Verchick said the lawsuits are necessary because regulatory agencies in Louisiana haven’t addressed the problem.
“Down here, the state of Louisiana for decades did almost nothing to enforce these regulations and to protect the wetlands,” Verchick said.
“It’s the fastest sinking coastland in north America, in part due to climate-induced sea level rise,” he added. “Against that backdrop, anything else that human beings are doing to cause these coastlands to erode and slip into the water has to be avoided and has to be remedied.”