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Louisiana flood protection board sues Big Oil for wetlands loss: Harry Shearer interviews John Barry

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On Le Show this past Sunday, Harry Shearer interviewed John Barry about Southeast Louisiana Flood Protection Authority - East's lawsuit filed against 97 oil companies, using a 200-year-old Louisiana statute.

"The Louisiana legal tradition comes from the French and Spanish. It’s civil law as opposed to common law, which is the English tradition for the rest of the country. And there’s a provision that goes back to the Romans in civil law called 'servitude of drain,' and that provision – and it’s also in statute in Louisiana, has been for 200 years – says that one neighbor cannot send more water from their property onto someone else’s property, period. And by destroying the marsh, the oil industry clearly is sending more water, increased storm surge against our levees, than would otherwise be the case. And I think that’s a very, very powerful claim."

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"There has been zero substantive attack on our position. No one has said we are wrong about the land loss and no one has denied the fact that the oil industry agreed in writing when they were given permits for nearly all of this work that they would fix it when they left."

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"We want them to stop sending more water our way and either do what they already promised to do in written agreements when they got permits to dredge these canals, or pay us some money so we can build better flood protection."

Listen to the podcast here. Transcript below the fold.

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Harry Shearer interviews John Barry
Le Show, August 4, 2013
Transcript

From deep inside your radio.

HARRY SHEARER: This is Le Show from London, and when New Orleans is in the national news, it’s not all that often anyway, and quite often when New Orleans does make the national news, all the facts don’t seem to accompany the story as it makes its way up north.

Most recently New Orleans made the news because a major lawsuit was filed there a couple weeks ago against more than 90 companies in the oil and oil services businesses alleging that they had, by their activities of canal digging and pipeline laying across the wetlands of South and Southeast Louisiana, damaged the marshland to such an extent that New Orleans was now far more vulnerable to a hurricane storm surge than it had been before all this construction began.

It has become quite a controversial lawsuit and so I wanted to take the opportunity of inviting a friend who is as it happens a key figure in the lawsuit to be with me today. He’s in Washington D.C. and he’s the noted author of Rising Tide, the definitive book on the 1927 Mississippi River flood which gave us, among other things, a beautiful Randy Newman song and the execrable blanket immunity from any lawsuit for the United States Army Corps of Engineers. He’s John Barry. You have nothing to do with either of those things. You bear no responsibility for them. But John is also a member of the Southeast Louisiana Flood Protection Authority - East, have I got that right?

JOHN BARRY: You did.

HARRY SHEARER: Wow.

JOHN BARRY: I didn’t create the name. (laughs)

HARRY SHEARER: No, you think of catchy names like Rising Tide, right?

JOHN BARRY: Yeah, my agent did that actually.

HARRY SHEARER: Oh, really? Wow. An agent.

JOHN BARRY: I’m not clever.

HARRY SHEARER: Oh. You’re smart, though. Welcome to the show, John.

JOHN BARRY: Thank you very much. I want to correct one thing you said at the beginning, and that was that we are alleging that their activity damaged the marsh. It’s not an allegation. It’s a fact which they admit, as recently as yesterday. Chris John, who runs the Mid-Continent Oil and Gas Association, conceded that we are, quote, “partly responsible”. Unquote. They know that. The issue is who pays to fix it.

What the lawsuit is about is – I mean, first, to give your listeners some scope, our board is comprised of scientists primarily. It’s a post-Katrina reform board. It’s insulated from politics. Pretty much every other board in the state, the members serve at the pleasure of the governor. We cannot be removed by the governor once we are on there. There’s a long process of selection including the deans of all the colleges of engineering in the state and good government groups. That insulation allowed us to do what nobody else in Louisiana has done, and that is ask the industry to be responsible for what they’ve done and what they actually said in writing in most cases that they would fix.

Our board represents or is responsible for the east bank of the Mississippi River in the Greater New Orleans area, and there’s a lot of damage in our area caused by oil and gas. Honestly it would probably be several billion dollars if we win the lawsuit. However, the area to our west actually has suffered much more damage from the industry, and they have not – nobody to the west has yet joined in the lawsuit. There’s a lot of Louisiana politics here. But we would guess that as we make any progress in the courts – and I think we’ve got a very strong case – then entities to our west would join in, and if that were to happen the total dollars we’re talking about would probably rival – it would dwarf Exxon Valdez and it would probably rival whatever total amount BP ends up spending. So this is a pretty big deal.

The other part of the context is, of course, Louisiana has lost 1900 square miles of land in the last several decades, or since the 1930s, most of it in the last several decades. There are many causes for this land loss. We don’t blame the industry for all of the land loss. We do say that they are responsible for some of the land loss, and as I said, they admit that they are responsible for some of the land loss. We are just asking them to pay to fix the part that they’re responsible for.

The most familiar figure put forward for the land loss is a football field every hour – do I have that right?

Yeah, about every 50 minutes actually.

HARRY SHEARER: Some numbers. The most familiar figure put forward for the land loss is a football field every hour – do I have that right?

JOHN BARRY: Yeah, about every 50 minutes actually. [says here every 38 minutes; scroll down]

HARRY SHEARER: And the percentages that have been attributed to the oil and gas industry have – I’ve seen figures that have wavered all over the map from 30% to 90%.

JOHN BARRY: Well, part of that is because it’s actually different in different areas. It’s not uniform. In some areas it probably is roughly 90%. In other areas it’s very small. The industry participated in a study run by the U.S. Geological Survey a decade or so ago which included many, many “stakeholders,” a word that I hate. That’s the word people use. And the industry was one of them. And that study concluded that, statewide, the industry was responsible for 36% of the land loss statewide. But again in one area it might be as high as 90%; another area it might be insignificant.

HARRY SHEARER: Let me take a slight detour before we get to the meat of the lawsuit and what has happened since it was filed. When we talk about the percentages of responsibility for the slow-motion disaster that is the land loss in South Louisiana, another cause, and I think it’s well known by this point, has been the leveeing of the Mississippi River.

JOHN BARRY: That’s correct. Because it keeps the sediment in the river. The land all the way from Missouri to the Gulf of Mexico was actually created by the deposit of sediment in the Mississippi River. So you keep that sediment in the river and it no longer is available to replenish the land. So that’s one of the causes, yes.

HARRY SHEARER: When the river used to flood, it would build delta willy-nilly, and now that same sediment goes down into a big hole in the Gulf of Mexico, is that right?

JOHN BARRY: That’s right. And that’s to benefit the shipping industry so that – that land-building process used to create enormous sandbars that blocked the entire Mississippi River system from the ocean, so they built these jetties that go 2½ miles out into the Gulf to carry that sediment and to open up the – I mean, 60% of our grain exports go down the Mississippi River, and if it weren’t for those jetties they couldn’t do that.

HARRY SHEARER: You also told me, and this is the only thing that I had to cut out of – you appeared in The Big Uneasy, my documentary about the 2005 flood, and the only thing I had to cut out, unfortunately, was a point you made that five dams on the Upper Missouri River – Upper, sorry, “Missoura” River – impound, what, a third of the sediment that used to flow down the Mississippi to the Delta?

JOHN BARRY: Almost right. There are six of them. In Montana and North Dakota and South Dakota. There used to be 400 million tons of sediment a year coming down the river. Not all of it by any stretch goes out those jetties that I was talking about, but those six dams – there are thousands and thousands of dams on the river, but those six impound about, well, over 100 million tons a year, 125 million or so tons of sediment a year that used to be available to rebuild coastal Louisiana and sustain it. Those dams were built for flood protection, hydroelectric power and irrigation, so they’ve been worth billions and billions and billions of dollars to people in the Upper Midwest, in the High Plains, in Nebraska and so forth, and they don’t realize that they are contributing to the vulnerability of Louisiana to hurricanes.

A point that may be self-evident but neither of us actually said earlier, this 1900 square miles of land that used to be there is a buffer for a hurricane storm surge. If you put the state of Delaware, which is roughly that size, between New Orleans and the ocean, New Orleans doesn’t need any levees. Just the natural buffer will protect it. And that buffer is gone.

I mean a point that may be self-evident but neither of us actually said earlier, this 1900 square miles of land that used to be there is a buffer for a hurricane storm surge. As hurricanes travel over that land, they lose force. A storm surge decreases. If you put the state of Delaware, which is roughly that size, put Delaware between New Orleans and the ocean, New Orleans doesn’t need any levees. Just the natural buffer will protect it. And that buffer is gone. So that’s why we are saying this loss of the coast as the flood protection made the city much more dangerous, and we would like the industry to fix just the part that they destroyed. Not everything. We’re not holding them responsible for everything.

HARRY SHEARER: To be trivial, you’re not contemplating suing the Corps of Engineers, which leveed the river, nor the states of the Upper Midwest.

JOHN BARRY: No.

HARRY SHEARER: Okay, let’s get back to the suit at hand. How did the idea for filing this suit come about? You guys have had your hands full in the post-Katrina world supervising, looking over the shoulder of the Corps of Engineers as they’ve gone about building this 14 billion dollar system. It doesn’t seem, it didn’t seem to me like you needed any more on your plate, and yet all of a sudden now there’s this. How did this happen?

JOHN BARRY: Well, the reality is, the system gives us so-called 100-year protection. Everybody on the board knows what that actually means, and it’s not very much. A 100-year protection statistically means that – let’s say you have a kid born today. On that kid’s 18th birthday he or she takes a six-round revolver, puts one round in the chamber, spins the chamber and then puts it to their head and pulls the trigger. That’s one out of six chances in an 18-year period you’re going to get a storm bigger than 100 years. And then if they survive that, you put another round in the chamber, and when you get to your midlife crisis you pull the trigger again with two rounds in the chamber, and if you pass that you put another round in the chamber. So 100-year protection sounds great. It is the lowest standard in the developed world. The Dutch, the British, the Japanese, they protect cities to the 10,000-year standard. They protect cows to the 100-year standard.

So our board understands that, and we recognize that to actually make the city sa– and incidentally in the last 86 years there have been four floods on the Lower Mississippi River that exceeded the 100-year standard by a wide margin. Those levees on the river are built to a much higher standard. And if the flood two years ago that came down the river, if those levees had been 100-year levees, you would have had several million – it would have been bigger than Katrina because those levees would not have held.

So as we go forward, our vision statement, another thing like stakeholders I don’t care much for, but, whatever. It is (laughs) – we would like to achieve 500-year protection. And to get the money to do that is beyond our abilities. We can’t tax the people in New Orleans enough to raise what we need there, and particularly when you realize that it is a national responsibility. As you said earlier, those dams on the Upper Missouri are a major factor in our vulnerability, increasing the danger down here. The navigation industry, as I said earlier, those jetties that carry the sediment out into the deep water of the Gulf, where it’s wasted, that’s certainly national. That grain comes from the Upper Midwest. We import and export and distribute all over the country through the Mississippi River system, so we think there is a responsibility for the nation to take care of it, and then in addition the oil industry, which as I said agreed and signed off on a scientific study that places, allocated 36% of the causation for statewide land loss to them, and we simply feel if they come up with the money to either repair, do it themselves, we want them to stop sending more water our way and either do what they already promised to do in written agreements when they got permits to dredge these canals, or pay us some money so we can build better flood protection. We think that’s a way that we can increase the level of flood protection for the New Orleans metropolitan area.

It is a national responsibility. Those dams on the Upper Missouri are a major factor in our vulnerability, increasing the danger down here. The navigation industry, those jetties that carry the sediment out into the deep water of the Gulf, where it’s wasted, that’s certainly national. That grain comes from the Upper Midwest. We import and export and distribute all over the country through the Mississippi River system.

HARRY SHEARER: And these canals, part of the problem with them is that their walls have been, what, eroding over the years, and –

JOHN BARRY: That’s correct. There are, roughly, statewide, 10,000 miles of canals and pipelines that have been dredged through the marsh, and every inch allows saltwater intrusion, so the plants die, the roots die, and the soil just melts into the ocean. So the canals’ banks have widened enormously, and they were the permits that, in the overwhelming majority of cases, the permits require the companies to maintain and restore. They’re supposed to maintain these canals as they are, not allow them to erode, and in addition restore. If they’re done using them, they’re supposed to fix it, put it back the way it was before. They haven’t done either of those things. And they’re – go ahead.

HARRY SHEARER: No, I’m just saying. As a species, we’re so good at putting back things the way they were before. So whose idea was it? I mean, how did this idea for a lawsuit come about?

JOHN BARRY: Well, um – I don’t want to get – yeah, I guess it was probably my idea –

HARRY SHEARER: (laughs)

JOHN BARRY: – but I talked with other people about it. You know, I was thinking not so much of legal theories, but thinking about the tobacco lawsuits, and the individual smokers kept suing tobacco companies and losing because they had a choice and they had been warned and they did it anyway. In addition, you couldn’t prove any particular individual’s cancer was caused by smoking. But the states who had these huge medical expenses for Medicaid to take care of cancer patients who smoked, they didn’t have a choice. The law required them to take care of these people, and statistically, even though there’s multiple causation for cancer, statistically it’s very demonstrable that smoking contributes to cancer, heart disease and stroke and other things. So the states won enormous lawsuit against the tobacco industry for these huge medical expenses that they had. I thought conceptually we were sort of in the same position, that we had this obligation to protect people’s lives and take care of the flood protection system, and our ability to protect people’s lives and property is severely compromised by the loss of coastal land, and so it seemed logical that one of those entities, or the industry which was responsible for a significant part of the land loss, frankly might be a target.

HARRY SHEARER: Did not your colleagues when this idea was first floated regard you as somewhat crazy?

JOHN BARRY: I will tell you that at no time did any colleague seriously question going forward. We discussed it in executive session, so it’s not on the public record, obviously – you talk about a lawsuit, that’s executive session, and you don’t vote in executive session, all the votes are public – every conversation we had about it, the board was unanimous –

HARRY SHEARER: Wow.

JOHN BARRY: – on going forward.

HARRY SHEARER: Okay, now you’ve filed this suit, and everybody knows lawsuits are a long-term proposition. Nothing happens fast. But one thing that has happened fast is reaction from the political establishment in the state of Louisiana. Let me start with the governor, Governor Bobby Jindal, who did not waste any time in stating publicly that he thought this was an unnecessary and a wrong-headed action that your board was not authorized to take. He, I believe, claimed that you had to get a signoff from the governor –

JOHN BARRY: From him.

HARRY SHEARER: From him, yes.

JOHN BARRY: Yeah.

HARRY SHEARER: And your position, as I understand it, is you don’t have to do that, you can get a signoff from the Attorney General and you’re good to go with that. Is that right?

Before I ever approached an attorney, our counsel looked at the law, concluded we could do it. Separately, the Attorney General’s office looked at the law, concluded we could do it.

JOHN BARRY: That’s correct. We knew we would, our authority would be challenged. Before I ever approached an attorney, our counsel looked at the law, concluded we could do it. Separately, the Attorney General’s office looked at the law, concluded we could do it. Our attorney, who is being paid on contingency and therefore it’s his money at risk, and he’d already, already he’s put in – because he’s been working on this for months prior to even being hired, much less filing the lawsuit. He’s put out hundreds of thousands of dollars of cash already, not to mention I’m sure at least a thousand hours of time, so he had to satisfy himself that we had the authority. And then once we formally hired him, which was – he’s been working on this since last fall but we didn’t actually legally hire him until July 17th, which was after we got the Attorney General’s approval. The Attorney General also had to look at the contract. He knew what it was about. He understood the political ramifications, but it’s a valid contract and he really had no choi– I don’t know what his position is on the lawsuit, but my understanding is, I heard that inside his office he was advised that he had to approve it.

HARRY SHEARER: And like the governor, he is a Republican, right?

JOHN BARRY: He’s a Republican, yes. And I would note that the governor, when he was state cabinet secretary for the equivalent of health and human services, he actually opposed the state of Louisiana joining in the tobacco lawsuit which the Attorney General was filing for the state. The Attorney General of Louisiana is an elected office separate from the governor, and the governor and Bobby Jindal at that time opposed going forward and tried to stop it in court, but the Attorney General had the authority to sue for the state, he did sue, and Louisiana picked up 4 billion dollars which they would not have had if the now governor Jindal had had his way.

HARRY SHEARER: That’s admirable consistency on his part over some 16 or 17 years of a political career, have to say that. One of the people who spoke out in the wake of the governor’s denunciation of the suit was a gentleman by the name of Garret Graves, who is head of the – I’m going to not remember this acronym correctly, but it’s the CPRA, it’s the Coastal Preservation and Restoration –

JOHN BARRY: Coastal Protection and Restoration Authority, a board on which I sit.

HARRY SHEARER: Of the state of Louisiana.

JOHN BARRY: That’s correct.

HARRY SHEARER: And I think most people who’ve paid attention to this stuff have tended to regard Garret Graves as kind of a good guy.

JOHN BARRY: Garret is very capable. I really and truly think he’s done a terrific job, if you look at where the state was when he came in and where we are now. You know, have we agreed on everything? No. But who would?

HARRY SHEARER: Mmhmm.

JOHN BARRY: But I’m not just saying this. I think Garret has really done a fine job as head of the CPRA, and I think the governor has been a good, a very good governor for the coast.

HARRY SHEARER: Mmm. So Garret Graves went public I think within a week of the filing of the lawsuit saying pretty much, not exactly echoing the governor’s opposition, but saying he thought it was a bad idea, and both the governor and he have made statements to the effect that they would like to intervene in the court process and get this thrown out. Has he contacted you personally? Have you had any conversations with him either before or after he made that public statement?

JOHN BARRY: Well, we got a letter from him – he wrote to the president of the authority – I’m the vice president, although I’m chair of the legal committee and the point person on this suit. So he did send a letter, a long letter, to Tim Doody, the president, which I responded to. He wanted to meet and we invited him to our next board meeting, August 15th, and I assume he’s coming. We haven’t had any conversation since then.

HARRY SHEARER: This is a – sorry, this is a state court filing or a federal court?

JOHN BARRY: We’re filing in Orleans Parish. Have filed.

HARRY SHEARER: And you’re doing that because there are certain Louisiana laws that I think you’ve –

The Louisiana legal tradition comes from the French and Spanish. It’s civil law as opposed to common law, which is the English tradition for the rest of the country. And there’s a provision that goes back to the Romans in civil law called “servitude of drain,” and that provision – and it’s also in statute in Louisiana, has been for 200 years – says that one neighbor cannot send more water from their property onto someone else’s property, period. And by destroying the marsh, the oil industry clearly is sending more water, increased storm surge against our levees, than would otherwise be the case. And I think that’s a very, very powerful claim.

JOHN BARRY: Right. There’s a – the Louisiana legal tradition comes from the French and Spanish. It’s civil law as opposed to common law, which is the English tradition for the rest of the country. And there’s a provision that goes back to the Romans in civil law called “servitude of drain,” and that provision – and it’s also in statute in Louisiana, has been for 200 years – says that one neighbor cannot send more water from their property onto someone else’s property, period. And by destroying the marsh, the oil industry clearly is sending more water, increased storm surge against our levees, than would otherwise be the case. And I think that’s a very, very powerful claim.

HARRY SHEARER: It is alleged to be a novel interpretation or use of the law.

JOHN BARRY: Well, I mean the reality is the case law on that is so well known, every municipality has dealt with it in Louisiana, and there is even a case very much on point that involves flood protection that’s not all that long ago in Terrebonne Parish, which is just out to the west of New Orleans. So although it hasn’t been applied in this area before, you know, it’s a well-known doctrine. And in terms of what court we end up in, there will probably be an attempt to remove this to federal court. There are advantages and disadvantages to each. In the end we decided to file in state court, but that provision, even if we go to federal court, would still be applicable because the federal court, when they try a case, they rely on the state laws that govern that area.

HARRY SHEARER: Now, as I’ve been reading the clips about this, it’s gone beyond just “we’re going to try to” – the opposition has gone beyond “We’re going to try to get this case dismissed and thrown out of court and we’re going to go on a publicity campaign against he perpetrators of this, or the bringers forward of this case.” There have been threats which have made public air and public print that the governor’s office is going to do what it can to keep you from being reappointed.

JOHN BARRY: Well, I don’t know if they’ve actually – if they said that publicly, I haven’t heard it. It’s an obvious question. My term actually has already expired June 30. However, it’s a public safety body and because of that I serve until replaced. There is a nominating committee which, as I said earlier, it’s engineers and good government groups. They meet in October. I am going to reapply. If they renominate me, my name goes to the governor and then it’s his choice whether or not to appoint me or not. If he does appoint me, I’ve got to get confirmed by the state senate. And we’ll see. I mean, obviously one of the ways to destroy the suit is to have turnover in the board so that you take control of the board and the board withdraws the lawsuit. That would take a couple of years at least to do that because our terms are all staggered. It’s possible. There are other ways. The state legislature could intervene when they go in session next year. They could even dissolve our entity.

HARRY SHEARER: Wow.

JOHN BARRY: This is a political fight. However, I think we have very strong public support, and I think, as I said, everybody recognizes that the industry has done the damage. The head of the trade association for the industry yesterday said “we are partly responsible.” The head of the, the same guy yesterday said, “It’s in our own interest to rebuild the coast because we have to protect our own infrastructure. Eighteen percent of the nation’s refining capacity is in Louisiana. All of that is subject to hurricane storm surge."

HARRY SHEARER: Hard to refine oil when you’re under water.

JOHN BARRY: It is. And it’s hard to build a refinery, politically, these days, anywhere in the country. So, you know, all we’re asking is, again, they pay for the part that they’re responsible for destroying.

HARRY SHEARER: Now, you mentioned the possibility of the suit being withdrawn by some manner or means. I believe one of the opponents of the suit, a congressman from Louisiana by the name of Steve – the Republican, Steve Scalise, has intimated that part of your contract, the board’s contract with its attorney, has a so-called poison-pill provision by which if the suit is withdrawn the attorney gets paid his expenses to date and perhaps fees too, and that this money would come from funds that you would otherwise use for flood protection. That’s the allegation by Steve Scalise.

JOHN BARRY: Well, first, Congressman Scalise, we’ve worked with him in the past on flood protection. Remember, everybody in the state, Garret Graves, the governor, we – we agree on one thing, we’re trying to protect the public. We’re trying to figure out the best way to do that. I think the politics of oil and gas in Louisiana obviously complicate this. We’ve worked with the congressman in the past. We’re working with him right now on some other legislation and expect to work with him in the future. That provision is in there simply to protect the attorneys from some arbitrary political interference in the lawsuit.

If the board were to withdraw the lawsuit, they would have to pay them reasonable legal fees plus all their expenses, which, depending on – I mean, this suit, if it goes forward to fruition, it’s going to take years, and there will be millions and millions of dollars in expenses. They’ve already started funding scientific research to allocate what percentages in our area precisely are due to oil and gas, the percentages of land loss and things like that. That’s very expensive. The estimates for the cost of the lawsuit start at 5 million dollars. That’s out-of-pocket expenses. And they go up from there. If you start running any models scientifically, you’re talking about a couple million dollars in models possibly. So it’s very expensive. And this lawyer is taking a chance on us. He actually, as I said earlier, he started working on this in I think I first called him last September, and we didn’t hire him until July, and yet he and actually two other law firms began working full-time on this by January. And he was okay with not being hired and kept working. And I really appreciate that, because he was taking some risk there and relying on our express intent to hire him. And I think, I feel that I do owe him, just as a matter of integrity, that he should not suffer if politics forces the withdrawal of this lawsuit.

There is only one other provision under which we would agree to withdraw the lawsuit. We are interested in protecting people’s lives, period. If someone convinces us that there is a better way to go forward that will protect people’s lives, then we will follow that path, and whether that means withdrawing this lawsuit or not. We fought for a long time, as I said, going back to September, and in January the board started debating at every meeting, and we could not find a better path. But if someone shows us one, we’ll do it. However, in that case, if we withdraw the lawsuit, everybody wins, because we will have better –

HARRY SHEARER: Better flood protection.

JOHN BARRY: – protection. Yeah.

HARRY SHEARER: Let me ask you a couple more questions, John. One, a political question. Louisiana is a red state, so-called, but New Orleans is a Democratic city. I’ve been reading the stories– I can’t say I’ve read them all – has any Democratic politician in Louisiana come publicly to the support of this lawsuit to date?

JOHN BARRY: I would say that Senator Landrieu has said that we need to fight for coastal restoration everywhere, including in the courts. She didn’t make a specific reference to our suit, but I think we’re about the only one out there.

HARRY SHEARER: What about her brother, the mayor of New Orleans?

JOHN BARRY: I believe that I’ll let him speak for himself.

HARRY SHEARER: (laughs) You are in Washington. You know how the game is played. And one more question on this. As people get more and more frustrated –

JOHN BARRY: And before, to get back to that –

HARRY SHEARER: Yes.

This has nothing to do with partisan politics, nothing. This has to do solely with protecting people’s lives.

JOHN BARRY: There are also several Republican politicians who have also kept silent. There – I mean there are some state legislators that have attacked the suit, but there have been a lot of people who are taking a wait-and-see attitude. There are a lot of people in very Republican areas. Look, our board, nine members of the board, my guess is six of them are Republicans. I don’t know that for a fact, but I’m sure at least five are and I think six, and at least one and I think probably two are Tea Party members. They are as strong for this lawsuit as anyone. This has nothing to do with partisan politics, nothing. This has to do solely with protecting people’s lives. To the extent that Republican or Democratic politics has gotten into it, that’s very unfortunate. I guess the oil industry campaign contributions and things like that is a factor.

HARRY SHEARER: And in fairness, when Louisiana was a Democratic state, oil and gas campaign contributions flowed to the Democratic establishment.

JOHN BARRY: Oh, without a doubt. No question about it.

As people become more and more frustrated with the political system and its inability to do big things or look long-term, the private litigation system has more and more become an alternative channel. There might have been a time, let’s put our imagination caps on, when a part of government somewhere would have taken on the task of saying to the oil companies, you got to clean up. I’m just positing that that’s possible in some imaginary democratic universe, with a small d.

HARRY SHEARER: Yeah. The last question on this, I guess, is this: As people become more and more frustrated with the political system and its inability to do big things or look long-term, the private litigation system has more and more become an alternative channel. There might have been a time, let’s put our imagination caps on, when a part of government somewhere would have taken on the task of saying to the oil companies, you got to clean up. I’m just positing that that’s possible in some imaginary democratic universe, with a small d. So the civil litigation system has become this sort of alternative, and the political system’s response has been to – and I think we both have seen this over the years – to demonize the lawyers who work in the civil litigation system. The word “trial lawyer” has become, well, down about five notches on the list from terrorist in terms of a fear figure. Am I reading this correctly, that that’s the way this is going?

JOHN BARRY: Well, there has been zero substantive attack on our position. No one has said we are wrong about the land loss and no one has denied the fact that the oil industry agreed in writing when they were given permits for nearly all of this work that they would fix it when they left. So if you can’t attack on substance, then you attack something else. The old story, if you’ve got the facts, argue the facts; if you’ve got the law, argue the law; and if you don’t have either, you attack the person.

HARRY SHEARER: You pound the table and yell.

JOHN BARRY: Yeah. In this case, it’s the contingency fee. No question. If we win the lawsuit, the attorneys are going to get a heck of a lot of money. I mean, a lot of money. By the same token, if we lose the lawsuit, they will have spent millions and millions of dollars, tens of thousands of hours, and it’s expensive enough that the firm could actually go bankrupt I think. So they are taking a risk. And that is the system. The fact is, these permits were not enforced by either the state or federal government, which is one of the big defenses the industry says. It says, “Well, you never – “

HARRY SHEARER: “You never made us do it.”

JOHN BARRY: Yeah, so, and in fact as I went through the process of finding a lawyer, I tried a couple of entities that might do it pro bono, but they didn’t have the resources, and one expert on this kind of litigation looked at it and said that actually the defendant against whom you’d most likely succeed was the state of Louisiana. I said, well, I mean (laughs), that’s one person we’re not going to sue, one entity we’re not going to sue. Since we’re legally a political subdivision of the state, that would be a little bit odd.

HARRY SHEARER: (laughs)

JOHN BARRY: But that’s for their nonenforcement. And that’s not the Jindal administration. I don’t, I mean –

HARRY SHEARER: Historically.

JOHN BARRY: Exactly. That goes back years and decades. That’s got nothing to do with the present administration. I don’t want to – it would be unfair to take a shot at him for that. So – I mean, that’s where we are.

HARRY SHEARER: Yeah. So where do – where – what’s the next development we can look forward to in this story? I mean, as I say, lawsuits crawl at a pace that makes snails look like Usain Bolt. So what can we look forward to, and when?

The next thing would be the board meeting where Garret Graves, the head of the state authority for the coast, will appear, and I guess that’ll be a little bit of a show. I encourage everybody to come. It’s at the Orleans Levee District on August 15th at 9:30 in the morning.

.JOHN BARRY: Well, there are probably going to be some – the next thing would be the board meeting where Garret Graves, the head of the state authority for the coast, will appear, and I guess that’ll be a little bit of a show.

HARRY SHEARER: Is that an open meeting?

JOHN BARRY: Oh, yeah, absolutely. I encourage everybody to come. It’s at the Orleans Levee District on August 15th at 9:30 in the morning. We actually hold our meetings in the Safe House, a room designed for our personnel to hang in the midst of a hurricane. It’s supposed to withstand close to 200-mph winds and wild storms and so forth. For those who know New Orleans, it’s right out practically on the lake.

HARRY SHEARER: So conservatively it would withstand Bobby Jindal’s huffing and puffing, you’re saying.

JOHN BARRY: We hope so. (laughs) But...

HARRY SHEARER: Okay. Let me ask you one more question that is unrelated to any of this, but is related to the New Orleans flood protection system. When it was being built, starting in 2006, the Corps of Engineers was prouder of no part of this system than of the wall across Lake Borgne that separates this so-called lake, it’s actually a bay, from the Gulf of Mexico.

JOHN BARRY: Right.

HARRY SHEARER: And I went to community meetings that the Corps held in New Orleans where they showed a 15-minute beautifully animated rendering of the wall, how big it was, how high-tech it was, how it compared favorably with similar structures in Britain and the Netherlands, and when I was filming an official of the Corps of Engineers for my documentary, one of the conditions was that we film it out at the construction site of this wall so people could see the wall under construction. In none of these presentations did we learn – and we didn’t learn until I think late last year or early this year – that at the center or near the center of the wall there’s a little gap, and the high-tech thing that’s in that gap is a barge that’s supposed to be filled with water and thereby, you know, made heavy enough to fit, to sink and fill the hole in that wall, the so-called barge gate. And last time, you and I talked about it, I think, when last we saw each other, and at that point I think they had tested it six or seven times and it had never successfully worked. Now I’m just checking out to see if (laughs), have they successfully – is it like missile defense, they just keep testing it and it never works, or have they made it work yet?

towboat Angelina, source: wikipedia

JOHN BARRY: Well, first, even in the cases when it never worked, in terms of an actual hurricane, I mean we would have tows around there to push it. And the last several times they’ve opened and closed it, it has worked. And the original plan for that gate was that it was only supposed to be used once every few years when they were doing maintenance on the main gates, which work fine. It’s gotten a little bit more complicated than that, and actually we were telling them that we felt, no, that that’s more a part of the system than you might think because of current flows, there’s another gate on the lake, but your listeners don’t care about that. Long and short is, even if it wasn’t going to close as designed, you get some towboats out there and you can push it closed. And the last few times they’ve closed it, it has worked. We are going – well, there’s legislation in Congress that would keep that under the operation and maintenance of the Corps of Engineers. It hasn’t passed yet. I hope that does pass.

HARRY SHEARER: Because otherwise the locals have to run it.

JOHN BARRY: Otherwise we will be responsible for that and the whole surge barrier itself, the much more complicated and expensive gates that are the main entry point for the Gulf Intracoastal Waterway through which a tremendous amount of traffic passes. It connects Texas, goes all the way to Florida.

HARRY SHEARER: When you say towboats, this would be happening during a hurricane?

JOHN BARRY: Well, we’d have them on standby, and you’d have to close that gate not in the middle of a hurricane but well in advance of a hurricane.

HARRY SHEARER: Four days – is that four days?

JOHN BARRY: Well, if – nnnn. Let’s put it this way. If we have questions about that gate and if we are running it, then we’re going to close it on June 1st, at the beginning of hurricane season, and we’ll open it at the end of hurricane season in November. Period. I mean, is it something you worry about? Yeah, a little bit. But are there satisfactory solutions? Yes.

HARRY SHEARER: I guess my only follow-up question would be, why, in all the presentations and all the expensive animations and illustrations and demonstrations, did that barge gate never appear?

JOHN BARRY: Well, you could ask the Corps that.

HARRY SHEARER: (laughs) Yes, indeed. John Barry of the Southeast Louisiana Flood Protection Authority East and author of many, many fine books, most notably – well, notably in this instance, Rising Tide: The History of the 1927 Mississippi River Flood. Thank you so much for – thanks for filing the lawsuit, thanks for explaining it here today, and good luck.

It comes down really to a simple choice. Do you want to protect the oil companies from having to keep their written word, agreements they made, or do you want to protect people’s lives and property from hurricanes? It is really that simple. The lawsuit should continue and let the courts decide.

JOHN BARRY: Thank you. And let me close with saying my standard line, which I’ve refined down, if you don’t mind a soundbite. It comes down really to a simple choice. Do you want to protect the oil companies from having to keep their written word, agreements they made, and make them obey the law, or do you want to protect people’s lives and property from hurricanes? It is really that simple. The lawsuit should continue and let the courts decide.

HARRY SHEARER: But I like the oil companies. All right, anyway. Good luck August 15th. I wish I could be there and I’ll check back with you soon. John Barry, thank you.

JOHN BARRY: Thanks a lot. Take care.

HARRY SHEARER: You too.

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HARRY SHEARER: And just this final science note. The journal EcoHealth has published results on the discovery of high concentrations of flesh-eating bacteria in tar balls collected along the Gulf Coast. So don’t be eating those tar balls now, kids.

The program returns next week at this same time over these same stations with another special interview regarding flood control in New Orleans eight years after the 2005 disaster.

Well, ladies and gentlemen, that’s going to conclude this week’s edition of Le Show. The program returns next week at this same time over these same stations with another special interview regarding flood control in New Orleans eight years after the 2005 disaster. And it’ll be on most of these same stations around the world, through the facilities of NPR Worldwide throughout Europe, the USEN 440 cable system in Japan, around the world via the American Forces Network, up and down the East Coast via the shortwave giant WBCQ The Planet, on the Mighty 104 in Berlin, around the world via the internet at two different locations live and archived whenever you want it, harryshearer.com and KCSN.org, available for your smartphone through stitcher.com, and available as a free podcast from iTunes, Sideshow Network, and I hear SoundCloud sometimes too. And it would be just like not eating the tar balls if you'd agree to join with me then. Would you? All righty. Thank you very much, uh huh.

A tip of the Le Show chapeau to the San Diego, Pittsburgh, Chicago in exile, and Hawaii desks. Thanks as always to Pam Halstead and thanks particularly today to Brian Oliger at WTOP, the whole gang at WTOP in Washington D.C., and Andrew Boyle at Studio 5A here in London, England, for engineering help with today’s broadcast.

The e-mail address for this program and playlist of the music heard hereon as well as an amazing store are available at harryshearer.com. And you’ll find me, not that I was lost, @theharryshearer on Twitter.

Le Show comes to you from Century of Progress Productions and originates through the facilities of the Change is Hard Radio Network.

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photo sources: TheBigUneasy.com, JohnBarry.com, and wikipedia

nola.com index of news stories on the lawsuit here

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