It might have slipped past the radar of many of our readers, but on Friday afternoon a federal district judge in New Orleans granted a motion for dismissal and in doing so killed the controversial lawsuit filed by the Southeast Louisiana Flood Protection Authority-East against some 97 oil companies alleging $8 billion in damages for the loss of coastline in southeast Louisiana.
The granting of the motion by U.S. District Judge Nannette Jolivette Brown (an Obama appointee) comes in a 49-page ruling which doesn’t leave much hope for reversal at the 5th Circuit. Brown hammered the plaintiffs on every possible theory of recovery. She restated established Louisiana law that oil companies don’t have a “legal duty to protect the public from coastal erosion allegedly caused by [pipeline] operators that were physically and proximately remote from plaintiffs or their property,” and was unmoved by the plantiffs’ suggestion that the federal Rivers and Harbors Act, Clean Water Act or Coastal Zone Management Act impose that duty, and therefore no case of negligence against the oil companies could be made. She also shot down the plaintiffs’ theory that the oil companies were liable under strict liability theory in Louisiana law out of hand, and was also unmoved by the plaintiffs’ allegation that the oil companies have interfered with the SLFPA-E’s natural servitude of drain. She said the plaintiffs don’t have a case for the oil companies’ causing a nuisance because there has to be a showing of negligence to make that actionable, and she threw out the plaintiffs’ theory of recovery under breach of contract because there was no evidence presented of a contract between the oil companies and the flood protection authority.
In short, the case collapsed completely in front of the judge. It’s difficult to imagine it will be revived.
Gov. Bobby Jindal’s spokeswoman Shannon Bates Dirmann applauded the ruling with a dismissive flip of the rhetorical hand to the plaintiffs. “We appreciate the judge’s ruling and are pleased that this frivolous lawsuit has come to an end,” she said.
So now that the SLFPA lawsuit is over, what does that mean politically in Louisiana?
For the Left in this state, and the environmental Left in particular, it’s a bitter pill – though hardly an unexpected one. The lawsuit was always a long shot from a legal standpoint, and in fact was (1) a publicity stunt aimed at creating political heroes out of its originators and (2) a shot in the dark hoping to secure some “go-away” money for the lawyers and the levee board. The oil companies saw that coming and recognized the implications of settling the suit could be catastrophic in their future cost and so stood firm.
But now that the suit has been tossed, it might become a rallying cry for the environmentalists who blame Big Oil, rather than the leveeing of the Mississippi, for the loss of that river’s delta. The reality is there might be some truth to the claim that canals cut through the marsh in the state’s southeastern coastline have accelerated the decline of the marsh and the loss of the coast, but the dominant factor is the loss of sediment carried by the river that would otherwise be deposited in the marsh by the spring floods each year. Canals or no canals, without that sediment you’re simply not going to hold that land.
And NASA has shown us proof of this fact, nearby in the Atchafalaya River delta.
Here was a satellite image of the mouth of the Atchafalaya in 1984…
And here’s the Atchafalaya delta in 2014…
That’s a rather convincing pair of images as they relate to the effect river sediment can have on the building of a delta. The Atchafalaya isn’t leveed to its mouth and flows naturally. And yes, the oil industry has built canals to service its operations in and around the area of the Atchafalaya delta.
So it’s a bad argument to blame Big Oil for the loss of the Mississippi Delta unless you’re just grasping for money to be used in coastal restoration. But Congress has already established a plan to use what is to be a larger share of offshore oil royalties for Louisiana to fund those coastal projects, and over time that funding will represent a far larger war chest than what the levee board and its lawyers were attempting to deliver through the lawsuit in question.
None of that will particularly matter to the environmentalist crowd. Casting oil companies as evil and decrying the damage they do is an end, not a means. And that crowd has already raised up a patron saint in Gen. Russell Honore’, the hero of post-Katrina recovery in New Orleans who heads up the Green Army – a loose confederation of environmental activists in the state whose activities have ranged from anti-fracking protests in St. Tammany, screaming about the sinkhole in Assumption Parish and, yes, backing the SLFPA-E lawsuit. There is increasing talk that Honore’ is being encouraged to run as the Democrats’ candidate for governor, owing to the celebrity he earned as the military caesar of the hurricane-struck Big Easy 10 years ago and his potential appeal as a racial crossover candidate along with his newfound environmentalist bona fides and potential for out-of-state fundraising as a result.
Running Honore’ as an insurgent candidate casting himself as Louisiana’s redeemer against Big Oil and the state’s crooked white establishment – and using the death of the SLFPA-E lawsuit as a rallying point for his bid – is something of a fever dream for many on the Left. Honore’ touches more erogenous zones in that regard than does the Democrats’ current candidate John Bel Edwards, who the rumor mill says might eschew his current gubernatorial bid in favor of something more competitive like the Attorney General’s race.
What Honore’ could bring to the table were he to display some skill as a candidate might make him competitive with frontrunner David Vitter, at least if you define “competitive” in the terms established by Mary Landrieu in her landslide loss to Bill Cassidy in the U.S. Senate runoff last December. Honore’ is African-American, and because he is he can satisfy an increasing desire among black Democrats to control not only the majority of the voting base of that party in Louisiana, which they have done for some time, but the candidates at the top of the electoral ticket. Blacks currently make up the majority of Democrat elected officials in the state legislature and in Louisiana’s urban local governments, if not throughout the state, and there has been grumbling particularly since Landrieu’s loss that reserving high-profile races for “electable” white liberals like Landrieu or her brother Mitch, or John Bel Edwards, is a needless surrender of elevated profile. If statewide candidacies are to be long shots, the thinking goes, why shouldn’t the people who can turn out the majority of the party’s vote and win the races the party can win be the ones carrying its standard and controlling its resources?
That Honore’ has a decent number of white Louisianans viewing him favorably would only strengthen the argument – at least so long as Honore’ doesn’t do or say anything that would alienate white voters.
And his environmental activism offers two interesting features. First, Honore’ gives the Democrats a core issue to rally behind; namely, the evil influence of the oil and gas industry, and he gives it at a time when that industry is greatly weakened by the price slump in crude oil and the resulting cutback in activity in Louisiana’s oil patch. An Honore’ campaign kicking the oil industry while it’s down won’t come off as quite the loopy crusade it would if prices were to be spiking above $100 per barrel and Louisiana workers were clamoring to fill the thousands of open jobs as a result. Rather, the narrative could now be that corrupt Big Oil owns the Republicans at the Capitol and even influences judges in federal court in Louisiana, and for having laid the state’s politics and environment prostrate to its desires it can’t even deliver jobs to our economy unless crude prices reach a certain level.
If oil is still trading below $50 this fall and the state’s economy lies in the doldrums as a result, that message might find some purchase.
Second, Honore’ could tie into the same network of out-of-state dollars that Forest Wright did in almost upsetting PSC Chairman Eric Skrmetta last year. Wright rode nearly a million bucks from the solar industry and environmental activists like billionaire Democrat Tom Steyer to that close runoff loss against Skrmetta, and if Honore’ were to run on saving Louisiana’s solar tax credits and finding ways to banish Big Oil from Louisiana, thus saving our environment from the ravages of Exxon, Chevron, BP and the like, he might find himself awash in Steyer cash. As fundraising has become the largest hurdle to Louisiana Democrats’ becoming competitive in major races, that could loom large as an advantage for Honore’ as the Democrats’ standard bearer over Edwards, or Foster Campbell or even Mitch Landrieu. The alliance, therefore, would be black voters and white liberal environmentalist money – something we already see with the Louisiana Bucket Brigade, which is an out-of-state-funded outreach in black communities near petrochemical facilities aiming to convince the locals their air and water are being poisoned by Big Oil and Big Chemical. As Honore’ is an ally of the Bucket Brigade through his Green Army, his potential candidacy would merely be taking things to the next level and perhaps providing a vehicle for more funding.
Mind you, all of this isn’t enough to carry a majority in Louisiana. Running against Big Oil will not get you 50 percent, even if you can carry every black vote in the state. What it could do, though, is get Honore’ into a runoff with Vitter, and perhaps get him to 45 percent or so in that runoff while generating a good bit of off-year media attention along the way. A showing like that would give the Democrats hope for the future – and black Democrats especially the whip hand in arguing they should own the future of their party.