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08 22, 2013 by The Times-Picayune
The Louisiana Coastal Protection and Restoration Authority on Wednesday voted to ask the East Bank levee authority to drop its lawsuit against 97 oil, gas and pipeline companies that is aimed at getting the energy firms to repair damage done to wetlands and land, or to pay for unrepairable damages, with the money to be used to improve levees.
The vote came after a contentious 3 1/2 hour discussion of the levee authority's decision to file the suit, at a meeting in Dulac, La., where Southeast Louisiana Flood Protection Authority-East Vice Chairman John Barry, who is a member of the CPRA, found few supporters of the suit on the CPRA board or in the audience.
CPRA Chairman Garret Graves said after the meeting that his authority would not immediately go to court to enforce the demand on the East Bank levee authority. But Graves said actions by other state officials are likely soon to bring a halt to the lawsuit, which the state says is hurting its efforts to restore wetlands under the state's coastal Master Plan.
Barry was forced to recuse himself from the vote on the resolution, after state attorneys said his vote would be a conflict of interest.
Barry began the meeting by defending the levee authority's decision to file suit and offering to work with energy industry officials during a proposed 45-day pause in the lawsuit to come to an agreement that could result in the suit being dropped. He said if that were done, the law firms hired by the levee authority would be paid for work they've already done by the energy industry, and it would not cost taxpayers.
Barry said that in exchange for their cooperation, he was willing to go to bat for the energy industry in any requests they would then make of the state Legislature.
The levee authority is continuing with the lawsuit because taxpayers within the authority's borders will be unable to shoulder the operation, maintenance and future improvement costs for the levee system that it oversees, which includes the East Jefferson Levee District, Orleans Levee District and the Lake Borgne Levee District.
The federal government has spent $14.6 billion on levee and drainage improvements in the New Orleans area, including those three districts, on the east and west banks of St. Charles Parish and in Jefferson, Orleans and Plaquemines parishes.
West Bank levee authority President Susan Maclay announced at the meeting that her authority now opposes the lawsuit and requested that the East Bank authority drop it.
West Bank levee authority Executive Director Giuseppe Miserendino charged that Barry had talked the East Bank commission into filing the suit and warned that it would result in the Legislature rewriting the laws setting up the two authorities, which could remove protections built in after Hurricane Katrina to keep them independent from politics.
"The Orleans Levee District had issues during the storm and all of us had to be reformed," he said. "Now we all have to be reformed again because of something you all did?"
That concern was backed up by Graves: "I don't see any scenario where this levee district doesn't get gutted -- or say reformed -- in the next legislative session."
Graves said the lawsuit disrupts what has been a five-year effort during the Jindal administration to move forward rapidly with coastal restoration and hurricane levee projects. "We've made more progress in the last five years than in any other period of the state's history," he said, pointing out that the state already has set aside $1.8 billion that will be used to pay the local share, including the portion owed by the East Bank levee districts, of the cost of rebuilding the New Orleans area levees.
"The reason the independent authorities were created was to address the lack of cooperation (between individual levee districts and the state) and the suit is contrary to those post-Katrina reforms," he said.
Graves said he has also felt the heat from his decision to back Barry's appointment to the CPRA: "I was the one who stood up and recommended to the governor that you be put on, which I've been reminded of repeatedly."
Gov. Bobby Jindal announced his opposition to the lawsuit when it was filed in July, saying the authority was required by state law to elicit the governor's support before going to court.
Barry reiterated his support for the lawsuit, saying that while coastal erosion is caused by more than the energy industry, that industry is violating state and federal permit requirements to repair damages, and should be held accountable.
"The reason I'm doing it is because I love New Orleans and want it to survive," said Barry, who is the author of "Rising Tide," the nonfiction account of the Army Corps of Engineers' actions during the 1927 Mississippi River flood, and is a researcher at Tulane University. He spends half the year in New Orleans and half the year in Washington, D.C.
His work on the flood book gave him access to senior corps officials and members of Congress, which he used in the immediate aftermath of Katrina and the years afterward to lobby on behalf of levee improvements in New Orleans, and to assist state officials in lobbying for levee improvements.
Also appearing on behalf of the East Bank levee authority at Wednesday's meeting was authority member Stephen Estopinal, a civil engineer, who outlined how canals dug by the oil and gas industry have affected the wetland buffer to the east of the levees along Lake Borgne and eastern New Orleans.
"If we are able to restore (those wetlands), we might be able to extend the life of the city of New Orleans for another 100 years," he said.
But CPRA members, even from the New Orleans area, were not in agreement. "We cant just go into the deep pockets (of the oil and gas industry) every time we're scared of losing land," said Plaquemines Parish President Billy Nungesser. He said the dramatic expansion of drilling in northwest Louisiana has shown "they don't have to drill in southern Louisiana."
And Nungesser said tax revenue from the oil and gas industry already is supporting restoration efforts, including those being paid for by his parish. "We've had a $10 milliion surplus every year in Plaquemines Parish because of oil and gas," Nungesser said. "I'm embarrassed for this lawsuit."
Pontchartrain Levee District member Steve Wilson, also a member of the CPRA, said his district routinely gets support from the oil and gas industry in the form of cooperation for identifying and using land for levees. Wilson also warned that efforts to make companies fill in oil and gas canals could backfire, in the event of an accident with a well that would then be difficult to reach.
State Rep. Gordon Dove, who represents the Houma area, disagreed with Barry's argument that the authority could file suit because the loss of wetlands affect the ability of levees to block storm surges. "I was the co-author of the legislation establishing the authority, and your authority's purpose was to build levees," Dove said. "You all usurped the authority of the Legislature, the governor and this board."
Representatives of several oil and gas industry companies also opposed the lawsuit. "I do not think a lawsuit elucidates this problem," said Yancey Duplantis, a representative of Hornbeck Offshore. "Negotiaton, not litigation, is the answer."
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