Louisiana Lawsuit Undercuts Keystone XL Pipeline Safety Argument

When a railway accident touched off an oil-fueled disaster in a small Canadian town earlier this month, advocates for the proposed Keystone XL pipeline were quick to tout the safety of pipeline transport for petroleum compared to rail. That comparison is problematic, to say the least. One of the problems is the potential for long-term environmental degradation that could be attributed to the pipeline infrastructure and facilities related to spill cleanup, over and above the direct impact of episodic oil spills and breaks.

Those concerns were brought into sharp focus last week by the Southeast Louisiana Flood Protection Authority – East (SLFPA-E), when the agency filed a lawsuit against approximately 100 oil, gas and pipeline companies in the state's district court in Orleans Parish. The lawsuit alleges that the network of canals and pipelines built by oil, gas, and pipeline companies through Louisiana's coastal lands resulted in significant damage to the protective buffer zone, leaving residents vulnerable to storm-related flooding.

A lawsuit for infrastructure damage

The first key thing to note about the SLFPA-E lawsuit is that it was not brought by a citizen group or other third party. SLFPA-E was established by the Louisiana state legislature after Hurricane Katrina exposed the region's vulnerability to extreme storms. It is the agency responsible for planning, operating and managing levees, floodgates, seawalls, and jetties in the greater New Orleans region, with the mission of protecting approximately one million residents as well as businesses and property.

The lawsuit states that oil and gas activities in the region have resulted in a network of large, deep canals, which are actively degrading the wetland buffer zone at an accelerating rate:

That canal network continues to introduce increasingly larger volumes of damaging saltwater, at increasingly greater velocity, ever deeper into Louisiana's coastal landscape and interior wetlands. The increasing intrusion of saltwater stresses the vegetation that holds wetlands together, weakening – and ultimately killing – that vegetation. Thus weakened, the remaining soil is washed away even by minor storms.

The key takeaway, as described by SLFPA-E vice president John M. Barry, is that the lawsuit does not seek to create or impose new requirements for the companies to remediate damage to coastal wetlands. Rather, it seeks to enforce agreed-upon requirements:

The industry has taken about $470 billion of the state's natural resources during the past 20 years, and we ask that it pick up its share of the increased costs of flood protections required to offset the loss of protective coastal wetlands. The industry recognizes that it is responsible for a significant part of the problem. We want energy companies to fix the part of the problem they caused – and which they promised to address. We want them to do what they said they'd do.

Response to the lawsuit

Despite its status as a creature of the state, it became abundantly clear that SLFPA-E was not speaking for the entire state government when news of the lawsuit broke. Governor Bobby Jindal issued a press release excoriating the agency for overstepping its authority and failing to consider the big picture:

"We’re not going to allow a single levee board that has been hijacked by a group of trial lawyers to determine flood protection, coastal restoration and economic repercussions for the entire State of Louisiana. This suit takes a myopic view of coastal Louisiana that actually jeopardizes and undermines our ability to implement the Master Plan."

U.S. Representative Steve Scalise (R-LA) echoed that sentiment:

"This lawsuit is nothing more than a trial lawyer boondoggle as they seek to leech billions from the very companies that make up the backbone of our local economy...The action being taken against Louisiana energy producers could interfere with the work we’re doing in Congress to provide the long-term funding that will ensure our beloved coast is renewed and preserved for generations to come."

The reference to greedy trial lawyers by both officials appears to be lifted from the boilerplate for a tort reform dog whistle, particularly in the case of Governor Jindal, who emphasized that point several times in his aforementioned press release:

"This is nothing but a windfall for a handful of trial lawyers. It boils down to trial lawyers who see dollar signs in their future and who are taking advantage of people who want to restore Louisiana’s coast. These trial lawyers are taking this action at the expense of our coast..."

However, if you take out the trial attorney angle, not much meat is left in the response. According to a report in the New Orleans Times-Picayune, the lawsuit was vetted through the state attorney general's office, which concluded that SLFPA-E had the authority to engage the law firms and take action.

Implications for Keystone XL pipeline

It could be that the lawsuit is little more than an attention-getter, intended to ensure that the New Orleans region gets its fair share of funding for statewide flood control and wetlands preservation efforts under the Master Plan. Even so, it shines a stark light on the complex infrastructure issues that occur over time when industrial activity encroaches on sensitive territory.

One example of those concerns at work is in upstate New York, wine country, where members of the region's booming wine and  tourism industry are mobilizing against plans to expand natural gas storage facilities in the area.

As for the Keystone XL pipeline, you can see a hint of trouble to come in the cleanup efforts going on along the Kalamazoo River, where a major tar sands oil pipeline spill occurred in 2010. The episode is the largest inland oil spill in U.S. history, and the infrastructure required for cleanup has itself become an issue, as a local brewery has filed a lawsuit against the pipeline's owner, Enbridge, for work related to the installation of a dredging pad.

Now consider that the Keystone XL pipeline will cross hundreds of waterways on its path from Canada to the Gulf Coast, and you can see the potential for future liability. That vulnerability was recently underscored by this year's ExxonMobil tar sands oil pipeline spill in Mayflower, Arkansas, where state and federal penalties have been described as "negligible" compared to the actual cost of remediating and restoring the affected area.

As more information about Keystone and its route come to light, look for more local agencies to start raising red flags about whether the pipeline's owner, TransCanada, is in position to make good on long-term remediation costs.

At least some of that pushback is going to come from existing businesses that would be affected by a pipeline accident and consequent remediation efforts (just to be clear, the aforementioned brewery, Bell's Brewery, was not directly affected by the spill but brought a lawsuit against the pipeline owner related to construction of facilities required for dredging).

Insofar as these are the "makers" that have already created jobs at numerous points along the planned route of the Keystone XL pipeline, it's fair to ask if the pipeline is worth the risk to existing employers. After all, as President Obama pointed out over the weekend, the total number of permanent Keystone XL pipeline jobs would number a mere few dozen.

[Image: Hurricane Katrina courtesy of NASA Goddard]

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