Governor John Bel Edwards’ annual pre-legislative session appearance before the Baton Rouge Press Club was – in a manner of speaking – shanghaied by the increasing apprehension over spread of the coronavirus, COVID-19. Having spoken with the Trump administration’s point man, U.S. Vice President Mike Pence, and held a state Unified Command Group meeting earlier Monday morning, the governor was anxious to try and quell some of the rampant speculation and incipient panic being spread via social media.
“We have no cases in Louisiana,” Edwards said, “Although there now are more than 90 cases nationwide, and two deaths. And while this COVID-19 is a new strain of coronavirus, other members of the coronavirus family are what cause the common cold.”
Louisiana Unified Command Group meeting on COVID-19, March 2, 2020. Photo courtesy: Office of Gov. John Bel Edwards’ Facebook page.
The governor told all in attendance at the weekly press luncheon that while the Unified Command Group had its first meeting on the virus earlier in the day, state agencies had been preparing the response for several weeks. They had all been reviewing, renewing and updating their various “continuity of operations plans.” And, he remarked, “Comprehensive state pandemic planning began 15 years ago.”
In the fall of 2005, the avian flu, H5N1, was found in multiple wild and domesticated bird species around the globe. Flocks of poultry, numbering in the millions, were slaughtered in Southeast Asia, in an effort to halt the spread. The U.S. Department of Homeland Security to initiated pandemic preparedness programs, and worked with each state to develop its own. It was especially imperative for Louisiana, with its commercial poultry farming and butchering industry in north Louisiana, along with south Louisiana serving as a winter habitat for migratory waterfowl. In addition, at that time our residents were facing unknown and unknowable health effects from the weeks of standing floodwaters following Katrina and Rita, along with the respiratory dangers of mold contamination in all the flooded buildings.
Four years later, in the fall of 2009, the massive notebooks detailing Louisiana’s pandemic plans were pulled off the shelves and updated, with the advent of the swine flu/H1N1 outbreak. A variant of the influenza virus that killed an estimated 20 to 50 million people worldwide in 1918, limiting the spread and effects of H1N1 was complicated by a flu vaccine shortage. Demand outstripped supply, of course, but overall supply was lower, too, due to the two vaccine manufacturers closing their doors as a result of the 2008 financial crisis.
Gov. John Bel Edwards chats with reporters and others prior to his official statements to the Baton Rouge Press Club, March 2, 2020. Photo by Sue Lincoln.
One of the reporters attending Monday’s meeting asked the governor if any plans had yet been compiled to blunt the potential economic impacts of coronavirus. He replied it was difficult to know what those might be, although some effects were already being felt.
“For example, the Port of New Orleans has ordered two new cranes, but has now been informed that delivery will be delayed,” Edwards said. “The equipment is coming from China, and too many of their workforce are sick.”
He noted there’s a run on surgical masks right now, causing prices to increase, while supplies are on back order.
“People don’t realize nearly all the masks are made in China. And the reality is, wearing a mask doesn’t do much to prevent you catching the virus. The reason to wear a mask is to prevent you from infecting others,” the governor said, reminding folks that operating room personnel wear masks to protect the patient, not themselves.
There were questions about the number and location of Louisiana residents “under quarantine,” and he replied that while state health officials had asked a couple of dozen people to isolate themselves in their homes following recent travel to and from heavily impacted countries, none of them have exhibited symptoms.
Asked about potential curtailment of upcoming events that draw large crowds of tourists, such as Jazzfest, Edwards gave an ironic chuckle, and remarked that coronavirus hadn’t slowed or really affected Louisiana’s biggest annual party, Mardi Gras. Taking a more serious tone, then, he said, “Obviously, certain interventions become wise, depending on what happens. But that’s just looking so far down the road. We’ve been told not to have unnecessary disruption of normal life now.”
Gov. Edwards urged all Louisiana residents who’ve not yet gotten a flu shot to get one – not because it will prevent or minimize contracting coronavirus, but because when and if Loiuisiana’s clinics and hospitals do have to battle COVID-19, they won’t be depleting resources while treating a big bunch of flu patients, too. That led into the his emphasizing the individual’s ability to take precautions, as he ticked off a list of dos and don’ts.
“If you are sick, don’t go to work. Cover your cough: not with your hand, rather, cough into your elbow. And wash your hands – frequently – with soap and water, for at least 20 seconds at a time. And remember, the chances of catching the flu are much higher than the chance of contracting this coronavirus.”
In closing, the governor urged everyone to “avoid gossip and speculation,” asking that they seek out reputable sources of information, like the CDC (Centers for Disease Control.)
“Once someone is presumptively positive on a test, it will be announced by me or the state Department of Health. We will disclose, and will do it very quickly,” Edwards said. “If your don’t hear it from me or the Department of Health, it’s not factual.”
Nearly 30 years ago, a constellation of paid lobbyists, corporate front groups, phony think tanks, and Louisiana’s most powerful trade association mounted a massive, aggressive campaign for “tort reform,” pressuring legislators to reject a package of civil justice expansions and prevent the repeal of a products liability law.
Unbeknownst to the public, however, the effort was created and almost exclusively funded by cigarette manufacturers. Today’s push for “tort reform” was built on the same foundation and constructed around the same scaffolding left in place by Big Tobacco.
Prologue:
“It’s déjà vu all over again.” – Yogi Berra.
Almost everyone over a certain age remembers the case of the New Mexico grandmother, Stella Liebeck, who was awarded $2.86 million after spilling a cup of McDonald’s hot coffee on her lap. It made headlines all across the globe, and since then, it’s been the punchline of countless, mostly bad jokes, including a reference in the most recent Will Farrell and Julia Louis-Dreyfus comedy, “Downhill,” when a French ski resort official indignantly proclaims, “This isn’t America, where you sue when your coffee is hot.”
McDonald’s Hot Coffee. Image by the Bayou Brief.
Most, however, don’t recall that, prior to the suit, McDonald’s had been requiring their restaurants to serve coffee at 180 to 190 degrees, a temperature it knew to be at least 20 degrees higher than what was safe, and most are not aware that Liebeck, who acknowledged it was her fault for spilling the coffee and who had repeatedly attempted to settle the case for $20,000, had suffered third-degree burns, so severe she required skin grafts and was permanently disfigured.
The media largely overlooked the fact that the jury award (which was later reduced) amounted to the profit McDonald’s made in only two days from its coffee sales, and news coverage rarely mentioned that the company had known about more than 700 other customers who had also been badly injured. Liebeck subsequently settled for around $600,000, and McDonald’s agreed to stop burning their customers and changed the way they served coffee.
The jury had meant to send a message to McDonald’s to get their act together; that’s part of the point of punitive damages: A jury of ordinary citizens making it clear that their community isn’t okay with a restaurant maiming grandmothers.
But instead, the case became used as the prime example of “jackpot justice.” It was endlessly cited by proponents of “tort reform,” which they said was needed to end the proliferation of what they called “lawsuit abuse.”
At the same time of the McDonald’s case, “large corporations afraid of being sued for making unsafe products created front groups like Citizens Against Lawsuit Abuse to turn public opinion against lawsuits,” University of Washington professor Michael McCann explained to Adam Conover of Adam Ruins Everything. “(But) the best social science evidence shows that the number of personal injury lawsuits in recent decades has declined, and the median payout is only $55,000.”
Right now, Louisiana’s most influential business lobbyists are peddling a story that seeks to blame frivolous lawsuits for all of the state’s economic woes, and a paid network of incurious and reflexively conservative apologists have attempted their best to reinforce this narrative.
Despite what these groups and their allies in the legislature proclaim publicly, the push for “tort reform” in Louisiana has never remotely resembled a grassroots campaign; rather, it has always been a narrative constructed and scripted by big corporations. For the past two years and under the pretense of protecting consumers, “business-friendly” conservatives in the state legislature have attempted to use the problem of expensive car insurance to justify the passage of a series of laws that would force innocent victims to spend exponentially more money to access the civil justice system.
If this all sounds familiar, it should.
The seven Presidents of the seven largest tobacco companies in America being sworn in as witnesses in front of a US House Committee in 1995. All seven men swore under oath thry did not believe nicotine was not addictive, something we later learned was belied by their own internal documents. All seven men resigned shortly afterward.
I. How Louisiana Became the Epicenter in the Battle Against Big Tobacco
“It ain’t the heat; it’s the humility.” -Yogi Berra
New Orleans resident Frank J. Lartigue was just nine years old when he started smoking cigarettes. He preferred Picayune Extra Milds, the “Pride of New Orleans.” This, of course, was a long time ago, in 1899 to be exact. Murphy J. Foster, Sr. was in his final year as Louisiana governor; a century later, his grandson would hold the same office.
For the next 55 years of Frank’s life, he smoked at least two packs a day, eventually switching his Picayunes for Camels. But at some point, his breathing became more labored. He knew the cause, and so did his wife Victoria. It had to be the cigarettes.
As we now know, the tobacco companies knew this as well, but at the time, they were concealing studies from the public; in fact, they continued to promote cigarettes as beneficial for your health in magazines, newspapers, billboards, and even television commercials.
After his death, his widow sued the cigarette manufacturers, and she hired one of the nation’s best lawyers, Melvin Belli of San Francisco, later known as “the King of Torts,” to represent her.
In 1958, the Louisiana case Lartigue v. R.J. Reynolds became the first tobacco lawsuit in the nation to make it to the jury. The jury wasn’t buying it, however. The King of Torts would fly home to California and establish himself as a legal giant, and cigarette manufacturers would continue to evade responsibility, mislead the American people, and conceal the truth about their industry.
More than three decades later, at the age of 87, Belli returned to Louisiana at the urging of New Orleans attorney Wendell Gauthier for the chance to take another shot at Big Tobacco.
“30 years ago I filed the first suit against these same tobacco companies in the same city of New Orleans. We lost because we couldn’t prove the addiction of nicotine then,” Belli said at the time. “Now I have great satisfaction in filing this first class action suit with Wendell Gauthier against this industry that will finally have to defend themselves against these charges. We will prove that the tobacco industry has conspired to catch you, hold you and kill you, all without a moment of remorse or self-examination.”
Originally, that lawsuit, Castano v. American Tobacco (1995), seemed likely to become the largest class action case in American history, but on appeal, the U.S. Court of Appeals for the Fifth Circuit decertified the class, forcing the team of more than 60 law firms that Gauthier had assembled to adopt a new strategy. The Castano lawyers, each of whom pitched in $100,000 to participate, filed more than two dozen suits, “baby Castanos,” in state courts, though only one of which, Louisiana’s Scott v. American Tobacco, eventually made its way to trial.
In Scott, the court later required Big Tobacco to pony up nearly $300 million (originally $591 million) to fund a smoking cessation program for those in Louisiana who had picked up the habit before 1998. (In November of 1998, Big Tobacco agreed to pay 46 states, including Louisiana, $206 billion in damages, a landmark victory also known as the Master Settlement Agreement). As of last year, more than 100,000 people had qualified as members of the Louisiana Smoking Cessation Trust.
But I’m getting ahead of myself, because all of these years later, it is easy to forget that, at the time, cigarette manufacturers were still telling the entire world that while their products may have been harmful to your health, they most certainly were not addictive. The companies endured over 40 years of lawsuits and had never paid a dime in damages.
However, by the early 1990s, their story began unraveling.
Wendell Gauthier of New Orleans was one of the nation’s most successful and ambitious plaintiffs attorneys, winning billions of dollars for victims of defective silicon breast implants, hotel fires, airline disasters, and cigarette manufacturers. He passed away from liver cancer in 2001 at the age of 58. Source: Screen grab from Addiction, Inc.
II.Castano
“You’ve got to be very careful if you don’t know where you are going, because you might not get there.” – Yogi Berra
Wendell Gauthier considered Peter Castano to be his “absolute best friend.”
“You know, your relatives, your born with. Your friends you select,” Gauthier told the Los Angeles Times.
He spoke with the kind of lilting drawl that pegged him, at least to other Louisianians, as someone who grew up hours away from New Orleans, in the prairies of Cajun Country. It was the same cadence as the state’s governor, Edwin Washington Edwards, who had started his career as a lawyer in Crowley in Acadia Parish, 11 miles down the road from Gauthier’s boyhood home in Iota. Not surprisingly, the two men were friends; Gauthier’s father had managed Edwards’ very first campaign, a run for Crowley City Council.
The brash and garrulous Gauthier had already slayed a few dragons before he battled Big Tobacco, and as a result, his boutique firm in Metairie had suddenly become known as “elite.” He drove a Rolls Royce, bought an ownership stake in the New Orleans Saints, and lived large. In 1993, Gauthier lost his best friend to lung cancer, and at the urging of Peter Castano’s widow, he decided to take the fight to Big Tobacco.
His approach, however, was different. While others had tried and failed to hold the companies accountable for smoking-related illnesses and deaths, he focused on consumer fraud, and as it turns out, his timing couldn’t have been better.
Secretly, Phillip Morris had hired a behavioral pharmacologist, Dr. Victor DeNoble, to help them develop a “safe cigarette.” The company knew nicotine caused cancer and heart problems, despite what they’d been saying in public, and they needed DeNoble to find out if there was anything they could use to replace nicotine. It would have to be addictive, which was necessary to ensure repeat customers, but it couldn’t be bad for your health.
DeNoble began running experiments with laboratory rats, and fairly quickly, he was able to demonstrate, definitively, that cigarettes weren’t just addictive and bad for your health because of the nicotine. There were other dangerous chemical additives as well. It’d be impossible to ever develop a “safe cigarette.” DeNoble’s research had been a breakthrough, and he rushed to publish a paper in a scientific journal.
Phillip Morris executives, on the other hand, did everything they could to sweep it under the rug. They stopped DeNoble from publishing his research, closed down his lab, reminded him of his nondisclosure agreement, and then, they fired him.
But they couldn’t contain the research forever.
When U.S. Rep. Henry Waxman announced his intention to call the executives of the seven largest tobacco companies before the House Energy and Commerce Subcommittee on Health and the Environment, he heard rumors about DeNoble’s research. And when the opportunity presented itself, he coordinated with one of his colleagues to ask the President of Phillip Morris, on the spot and under oath, to release DeNoble from any confidentiality agreement.
Down in Louisiana, Wendell Gauthier was watching on television.
He’d been corralling other plaintiffs lawyers to work with him on his class action suit against Big Tobacco, which had planted its political apparatus in the state only a year before and was spending a fortune riling up voters about “personal responsibility” and “lawsuit abuse.”
Louisiana’s chapter of Citizens Against Lawsuit Abuse wasn’t just funded by Big Tobacco; it was essentially created by Big Tobacco, which hired a former state legislator to be its spokesperson.
When DeNoble finished testifying in front of Congress, there was a message waiting for him on his answering machine.
“Doc, my name is Wendell Gauthier, and I’m the best goddamn lawyer that you’ll ever see,” the man said. “I’m watching you on television, and dammit, you’re good. Me and you, we takin’ the sons of bitches down.”
DeNoble called him back. He was on board.
“Wendell decided it was time to sue the tobacco companies,” New Orleans plaintiff attorney Joseph Bruno later recalled in the documentary Addiction, Inc. “At the time, I thought, ‘You’re out of your freaking mind. You know, they’ve never lost a case. It’s impossible.'”
III. Team-building
“Pair up in threes.” – Yogi Berra
Today, it is impossible to separate the well-funded campaign for “tort reform” and the proposals in the Louisiana legislature to change state law, under the pretense of lowering auto insurance premiums, with the legacy of Big Tobacco.
Indeed, some of the very organizations at the center of the effort are the offspring of tobacco companies and the now-defunct Tobacco Institute, which were exposed as participants in what Judge Gladys Kessler of the United States District Court for the District of Columbia found to be “a massive 50-year scheme to defraud the public, including consumers of cigarettes, in violation of RICO.” And other organizations, particularly the Louisiana Association of Business and Industry (LABI), had been the beneficiary of Big Tobacco’s public relations operation.
As lawmakers debate the merits of a proposal to limit a victim’s rights in the civil justice system, the champions of “tort reform” are employing the same tactics and using an almost identical set of talking points that Big Tobacco developed during the 1990s: bogus studies and phony or exaggerated outrage amplified and recycled by a small network of paid lobbyists and industry front groups who all cynically pretend to be representing a grassroots movement.
During the 1990s, while plaintiffs attorneys battled in the Louisiana legislature and against an adversarial governor, they found more success where it mattered: the courtroom. The hysteria over “jackpot justice” and “lawsuit abuse” worked primarily as soundbites. When people learned the full story, they were far more likely to support the victims and far less sympathetic to the notion that big corporations should be allowed to evade responsibility whenever it was bad for their bottom line.
If you’re interested in learning more about the history, the Center for Justice & Democracy and Public Citizen published “The CALA Report: The Secret Campaign by Big Tobacco and Other Major Industries to Take Away Your Rights” nearly 20 years ago, and you can read the full report in the Coda at the very bottom.
“We have deep depth.” -Yogi Berra
These are the business lobbying and corporate interest front groups funding the current efforts to dismantle parts of Louisiana’s civil justice system in order to make it more difficult for innocent victims to hold insurance companies responsible.
The Louisiana Association of Business and Industry (LABI) considers the proposals to dismantle protections for innocent victims as its top legislative priority. It worked closely with Big Tobacco throughout the 1990s on rolling out the campaign against legislation that sought to repeal a products liability statute the industry had exploited to quash litigation.
Louisiana Lawsuit Abuse Watch is a vestige of Louisiana’s chapter of Citizens Against Lawsuit Abuse, which was funded and first created by Big Tobacco. Even the term “lawsuit abuse” was popularized by Big Tobacco. LLAW’s current executive director is Lara Venable, a public relations consultant who most recently worked for Exxon-Mobile.
Grow Louisiana Coalition is a front group for the oil and gas industry led by Marc Ehrhardt, a public relations consultant in his eponymous firm, the Ehrhardt Group, his clients include Wal-Mart, Chevron, Waste Management, Capitol One, and BP.
Coalition for Common Sense is a national industry front group supported by major corporations and associations connected with oil and gas, chemical manufacturers, and insurance companies. Its Louisiana chapter is led by Kevin Cunningham, an insurance industry lobbyist who works as a consultant at the Baton Rouge government relations firm Southern Strategy Group. Last year, Cunningham acknowledged that it was a “misnomer” to believe auto insurance rates would ever decrease as a result of “tort reform.”
The Louisiana Oil and Gas Association is a family-run trade association and lobbying group that, in recent years, has spent the bulk of its time and resources on a public campaign opposing litigation against oil and gas companies accused of negligently and illegally dredging canals throughout the vulnerable Louisiana coast.
The Pelican Institute is a right-wing/ libertarian political advocacy organization that receives the bulk of its funding through “dark money” groups associated with Charles Koch and his late brother, David Koch. The Pelican Institute, which fashions itself as a “think tank” is a member of a small network of similar state-based conservative think tanks (the State Policy Network), which was established as an arm of the American Legislative Exchange Council (ALEC).
Additionally, the Pelican Institute is an affiliate of both the Bradley Foundation and the Interstate Policy Alliance. It has received at least $806,700 from DonorsTrust, the dark money group reported to be largely funded by the Koch brothers, a total which may or may not include a $122,000 grant Charles Koch awarded the organization in 2018. Daniel Erspamer is the Pelican Institute’s CEO. Previously, he worked for the Charles Koch Foundation, Americans for Prosperity, and the State Policy Network.
ILR
United States Chamber of Commerce’s Institute for Legal Reform
An arm of the nation’s most powerful business lobbying organization, the Institute for Legal Reform (ILR) publishes a biannual survey of the states with the best and worst “legal climates,” which are determined through a paid poll of approximately 1,300 civil defense lawyers who work at firms with revenues exceeding $100 million. The survey, which has consistently pilloried Louisiana as having one of the worst “legal climates” in the nation, cites as its justification a series of lawsuits related to mitigating environmental damages that threaten the state’s actual climate.
ATRA
The American Tort Reform Association
Founded in 1986 by the American Medical Association and the American Council of Chemical Companies, the ATRA is best known for its annual “judicial hellholes” report, which is explained at length below.
(Editor’s note: Mike Patton is an engineer, by trade. He builds and repairs radio stations, everything from the transmission tower to the switch that opens the mic for the DJ or on-air host. We’ve been connected through that business for several decades, and our families have become multi-layered friends. He was profoundly disturbed by the miasma of despair in and around Bessemer, and the warning it contains for similar extractive economies here in Louisiana. –Sue Lincoln)
by Mike Patton
My crew and I just completed a month-long project rebuilding an AM transmitter site between Birmingham and Bessemer, Alabama. For those of you unfamiliar with Birmingham, Bessemer, to the southwest of the city, was – emphasis on was – the epicenter of the steelmaking industry in the area. Steelmaking was the initial impetus for the creation of the city of Birmingham, named for the manufacturing center in England.
Bessemer’s name, on the other hand, comes from the Bessemer process, developed in the mid 19th century, which made it economical for the first time to make steel in industrial-scale quantity. It was the Pittsburgh of the south, and for the same reasons: both parts of the world have rich iron ore deposits, plus readily mined high-quality coal for coke and the confluence of those things makes it cheap and easy to forge steel.
Phto courtesy Wikimedia Commons
Work in the steel mills was hot, hard, dangerous work – but it paid a fair wage, enough for a man with little education but strong muscles and a willingness to work hard to provide a good living for his family, the classic ticket into the middle class. Unfortunately, the steel industry has largely left the Birmingham area, as the Bessemer process has now been replaced by the superior open-hearth furnace, and steel is now cheaper to make in China and other parts of the developing world and shipped here. This has left the southwest side of Birmingham, once blessed with a thriving middle class economy fueled by the honest labor of the steel mill workers, barren and desolate.
Bessemer neighborhood, February 2020. Photo by Mike Patton
We saw house after burned out house after falling down house. I have never seen so many torched houses in my life – it’s as though torching one’s house became some sort of competitive sport. Even municipal buildings and churches were not spared, but left to rot and decay. The downtowns of these erstwhile bedroom communities are full of boarded-up storefronts and rotten facades. And churches? There are churches everywhere, on every corner, in every strip mall. I presume that that’s one of the few sources of comfort for the denizens of these hard-hit communities.
Remnants of downtown Bessemer, February 2020. Photo by Mike Patton.
And of course, in the midst of this desolation, there are two top rated restaurants in Bessemer, catering mostly to white people – this is my shocked face. Other than that, there is nothing but cardboard fast food, soul food that might as well be a heart attack on a plate, and poorly stocked dollar store groceries. Almost a food desert by the conventional definition.
Abandoned steel mill. Photo by Mike Patton.
The hulking infrastructure of abandoned steel mills goes on for miles and miles, slowly rusting into oblivion. The few industrial sites that appear to still be operating have maybe a dozen cars in the parking lot, instead of the hundreds that the lot was built for. It’s just unremittingly grim. These people are living like something out of a Mad Max movie, grappling and fighting over the remnants of a vast prior civilization, now gone.
House burned inside; barrel for burning more, outside. Photo by Mike Patton.
I have done work in several Rust Belt cities, including Detroit and Scranton, Pennsylvania. But I have never seen anything like this. The hollowed-out neighborhoods go on, and on, and on, seemingly forever. Young men and old men both on the streets huddled around barrel fires, or panhandling, with no job, no prospects, no future. As three clearly employed lily-white engineers, with our clipboards and our signal strength meters, we felt like mice at a cat show. Buying gas, we’d get hit on for money. In a restaurant, we were often the only white people there. We never felt threatened, but it was clear we were out of place.
Politicians often talk about the divide between rural and urban America, and how the middle class has been hollowed out in the heartland. And yes, there is much truth in that – people in the countryside are struggling, including some of my friends and family. But I can definitely tell you that the middle class has been hollowed out – more like scraped clean – in southwest Jefferson County Alabama, which is far from rural. And yet, on the other side of Red Mountain, where all the white people live, modern Birmingham is thriving! It’s full of high-rise office buildings occupied by high-tech consulting firms, golf resorts, and cookie-cutter upscale suburbia. The difference could not be more stark: between Heaven and Hell, as it were, according to their conventional definitions. I don’t know how to fix this, but as my ex-wife once noted, she didn’t have to be an expert on the internal combustion engine to know this car is broke!
Despair. Photo by Mike Patton.
In the transition from an extractive and manufacturing economy to a service economy everyone south and west of downtown Birmingham has been manifestly left out. If we are to have a country and an economy that works instead of something out of a dystopian science-fiction novel, it has to work for all of us, or at least for almost all of us. The despair I saw burned into the smoldering timbers and the caved-in roofs of Bessemer, Fairfield, Midfield, Ensley, and Hueytown, Alabama made my soul cry. We have got to find a way to address this, or we will have a feudal society ruled by the technological and financial feudal lords where the neo-serfs don’t have *any* way to provide for themselves or their families. Urbanites can’t go back to subsistence farming.
Imagine receiving a letter from the state, telling you “Environmental contamination has been detected in the vicinity of your property/residence.”
That’s what has happened to dozens of residents and business owners around the intersection of U.S. Highway 167 and LA 3225 just outside the Pineville city limits.
The letters arrived in the second week of January, on official letterhead from the Louisiana Department of Environmental Quality, and bearing the names of Secretary Chuck Carr Brown and Gov. John Bel Edwards. They explain the problem derives from the now-shuttered Dresser Industries facility, which used – and left behind – industrial solvents, which have contaminated the soil and groundwater with both trichloroethylene and tetrachloroethylene.
The notifications say Dresser, through contracts with several environmental consulting companies, is “carrying out an investigation,” and make reference to “soil gas sampling” and “indoor air sampling” being conducted.
DEQ followed up with a public information meeting, held Monday, Feb. 10, in the Rapides Parish Police Jury chambers. It was standing-room-only, as concerned citizens from the potentially-affected neighborhoods came to ask questions and learn more.
The Dresser Company got its start in 1880, after Solomon Robert Dresser of Bradford, Pennsylvania, patented a rubber packer for pipes, followed by inventing a rubber coupling that would prevent natural gas pipes from leaking where they were joined. By 1927, the company had annual sales of $3.7-million, and in 1928 it went public. Dresser acquired firms that manufactured allied oil and gas equipment, and in 1950, as Dresser Industries, moved its headquarters to Dallas. Dresser opened its valve manufacturing facility in Pineville, Louisiana, in 1961.
Dresser Industries acquired International Harvester’s construction equipment division in 1982, and then just at the trough of the late 1980s oil price downturn, Dresser merged with Ingersoll-Rand. In 1998, Dresser merged with Halliburton, its main rival. That $7.7-billion deal was widely reported as being negotiated by Dick Cheney, then with Halliburton, during a quail-hunting expedition. (This predated Cheney’s infamous 2006 quail-hunting junket, when the then U.S. Vice President accidentally shot Texas attorney Harry Whittington.)
Subsequent to that merger, Halliburton was forced to put up $30-billion to settle asbestos lawsuits – its own, and the ones Dresser brought with it, including the landmark Bell v. Dresser Industries. Halliburton’s stock value fell 80%, and in April 2001, Dresser separated itself from Halliburton, becoming Dresser, Inc.
In 2011, Dresser, Inc. was acquired by General Electric Corporation, becoming part of GE’s Oil and Gas Division. The precipitous plunge in oil prices which began in June 2014 ultimately led to closure of the Pineville facility in 2016. Dresser, which had been part of the central Louisiana manufacturing economy since 1961, employing as many as 400 workers, informed the state in July 2016 it would permanently layoff its 289 workers by the end of that year. By September 2016, Dresser announced it would be moving the remnants of its Pineville manufacturing operation to Jacksonville, Florida. Then in 2017, GE Oil and Gas, including Dresser, merged with Baker-Hughes, which now owns the Pineville property.
Residents of the Aurora Park Subdivision, across U.S. Highway 167 from the Dresser site, were the majority of the locals attending the February 10th show-and tell session put on by the state’s environmental agency, and DEQ personnel endeavored to reassure the residents that “Your drinking water is safe.” This, despite the notification letter stating the “investigation has revealed groundwater contamination, and more recently, soil gas contamination.”
John Ellis, a geologist with the contractor Baker-Hughes has hired to monitor the property, was less absolute and more candid about the contamination.
“There are approximately 60 wells in and around the facility,” Ellis said. “We are still collecting data today, as we are trying to figure out exactly where it is. We know where the majority of it is, but we are chasing little areas in certain places.”
Trichloroethylene and tetrachloroethylene are the two most dangerous “its” found on and around the former Dresser Industries facility, but they didn’t just appear following closure of the valve assembly plant in the fall of 2016. The location has been listed as “Site 2920” in Louisiana DEQ records since sometime in 2012. That’s when Dresser finally reported a spill which had occurred in 2011. DEQ reports on the contamination give different narratives of the source of the contamination. The first comprehensive investigation report, issued in September 2014, says a pipe broke in 2012.
That 506-page report is a classic example of using environmental regulatory officialese to disguise the full magnitude and health dangers of spilling these chemical compounds.
What do I mean by that? Petrochemical industries and the environmental agencies that regulate them know that ABCs seem innocent and harmless. Using monogram acronyms for the overall category of chemicals to which a specific compound belongs provides multiple layers of obfuscation. It does not name a specific chemical, just the initials of the family it belongs within.
The 2014 report on Dresser report when a pipe broke in 2012, it spilled chemicals referred to as “TPH-OROs” (total petroleum hydrocarbons-oil range organics), and the spill was subsequently reported to the Department of Environmental Quality. One well was dug for monitoring the movement of the chemicals through the soil and groundwater. Then three more monitoring wells were installed, to monitor what was referred to as TPH (total petroleum hydrocarbons), VPH (volatile petroleum hydrocarbons), EPH (extractable petroleum hydrocarbons) and TDS (total dissolved solids). Additionally, the report states, groundwater was sampled for TPH-GRO (total petroleum hydrocarbons – gasoline range organics), TPH-DRO (total petroleum hydrocarbons – diesel range organics), TPH-ORO (total petroleum hydrocarbons – oil range organics), EPH and VPH (extractable petroleum hydrocarbons and volatile petroleum hydrocarbons).
In June 2013, three more monitoring wells were installed, and in July, samples from five of the seven wells “showed elevated concentrations of VOCs” (volatile organic compounds) in groundwater. (Still with the alphabetic acronyms, not saying specifically WTF the chemicals are!)
In February 2014, they drilled “temporary” wells into the shallow sand aquifer, discovered contaminants there, and “Drilling terminated to avoid pulling impacts into deeper layers.” In April 2014, four more permanent monitoring wells were drilled “to determine groundwater flow direction.” If you’re keeping score, that’s a total of eleven monitoring wells installed by spring of 2014.
And although they’re still using acronyms, this is the point at which the information finally becomes specific. Test results from April 2014 state: “Concentrations of TCE exceeded the GWss (groundwater sample standards = 0.005mg/L) in fifteen samples. The maximum reported concentration was 52 mg/L.” TCE is trichloroethylene, and the concentration found was more than 10,000 times the allowable level.
In May 2014, ten of the samples taken from the monitoring wells exceeded allowable levels for TCE, with a maximum concentration at 87 mg/L, or 17,400 times the allowed level. Additionally, “TCE and its daughter compounds are detected above GWss in wells along the east property boundary.” U.S. 167 forms that property boundary line.
According to the National Institutes for Health (NIH) and Centers for Disease Control (CDC), trichloroethylene is a sweet-smelling, colorless, volatile liquid degreasing solvent. It easily evaporates into the atmosphere when in use or when modest amounts are spilled onto soil or surface water. However, it is extremely mobile in soil and extremely persistent once it gets into groundwater.
In fact, the public health warnings for TCE say “While you may be exposed by breathing trichloroethylene, you are most likely to be exposed to trichloroethylene by drinking trichloroethylene-contaminated water.”
The U.S. Department of Health and Human Services, the U.S. Environmental Protection Agency, and the International Agency for Research on Cancer have each classified it as “known to be a human carcinogen,” as there is strong evidence that it can cause kidney cancer, liver cancer, and/or malignant lymphoma (a blood cancer).
Louisiana Department of Environmental Quality documents for Site 2920 include an “Additional Groundwater Plan”, filed June 29, 2015. That document has a different version of when and how the contamination began. It states site assessment commenced in 2012, “following observation of an oily sheen on ponded water during repair of a fire suppression system in November 2011.”
The 2015 plan proposed drilling another eight to ten monitoring wells, with some of them requiring approvals from DOTD (the state Department of Transportation) because they encroached on the U.S. 167 easements. And, as we now know from the most recent public meeting about the contamination, in the five years since, the number of monitoring wells has swollen to 60.
The contaminants found also include tetrachloroethylene, which is used in dry-cleaning, as well as a metal degreasing solvent. It evaporates quickly from soil and water, but is persistent as an atmospheric contaminant. It is listed as a “likely carcinogen,” with some evidence that – like its sister compound TCE – it can cause liver, kidney, and blood cancers, as well as bladder cancer, multiple myeloma, or non-Hodgkin’s lymphoma.
So even though DEQ held a public meeting eight to nine years after a spill and almost four years after an industry shut down, and even though there are all these wells monitoring this cancer-causing stuff that is in the groundwater, you can trust that “your drinking water is safe.” Nothing to fear here.
I’ve written about Carnival here several times before assuming my not-so-secret identity as the 13th Ward Rambler. In 2018, I wrote about Chads and Lost Causers, last year I tackled the Zulu Conundrum and wrote about being a Krewe du Vieux member. I’m writing this on Lundi Gras so I may miss some major mishaps or accidents. There have already been too many to count.
I don’t believe in curses, jinxes, hoodoo, voodoo, gris gris, or things that go bump in the night. That’s why I was loath to use the C-word in the column title. But this year, there’s something extra weird in the air.
There’s been a lot of talk on NOLA Twitter about the Hard Rock Hotel Collapse as the source of a Carnival curse. Covering corpses with tarps is not good for civic morale so there may be something to this theory. I have some belief in the concept of karma and planning parades around a disaster site can’t be good karmically speaking. Endymion was moved off its Mid-City route for a several years after Katrina and the Federal Flood for this very reason.
There have been four or five out of the ordinary events that have stirred up talk of a cursed Carnival. There were two fatal parade route accidents in just three days: one on the Endymion route and the other in my 13th Ward neighborhood.
I’ve been watching parades at the corner of Magazine and Valence for twenty years. It’s typically a mellow area from which to grub for beads and eat too much fried chicken and king cake. That changed this year during the Nyx parade.
There was a tragic accident approximately fifty feet from where my crew was watching. For some reason, a woman tried to cross the street and found herself trapped between a tandem (two-part) float. She died on Magazine Street.
I didn’t see the fatal accident, but I witnessed its aftermath. The vibe on the parade route was one of concern and compassion, not hysteria as described by some media outlets. My phone and social media feeds blew up with friends concerned that something had happened to Dr. A, me, or our group of friends. We were fine, just shaken. It did, however, cast a pall over the rest of my Carnival.
Since the Nyx accident there have been series of major mishaps: the aforementioned fatal accident on the Endymion route, two Thoth riders fell off their respective floats, and two people fell off a second-story balcony on St. Charles Avenue. Plus, the Krewe du Vieux ball had to be moved at the last minute out of safety concerns. It’s *almost* enough to make me revert to Greek superstitions and use some worry beads to ward off the evil eye.
There are real world explanations for these seemingly otherworldly events:
Chaddery: My old buddy, former Gambit editor Kevin Allman, was among the first to apply the term Krewe of Chad to the folks who confuse parade watching with tailgating or glamping. These are the people who put chairs, tents, and ladders out too early in spots where they have no business such as in the middle of the sidewalk. The city is attempting to crack down on Chaddery but with mixed results. They cannot be everywhere at once. I wrote about the Krewe of Chad phenomenon here in 2018.
Chaddery leads to drunker, more aggressive parade watchers. It also makes it harder to maneuver around these often-hostile encampments. Carnival is supposed to be a movable feast, not camping. I hate camping almost as much as I hate Chads.
I am convinced that Chaddy, entitled, and inattentive behavior is the cause of most of our Carnival woes. Mayor Cantrell has chosen to focus on over-large tandem floats as the root of all evil. She’s wrong: people are the problem, not floats. But it’s harder to change anti-social behavior than floats. More on the Mayor’s response later.
Parade Route Consolidation: There used to be multiple parade routes scattered throughout the city. That changed radically after Katrina and the Federal Flood. NOPD manpower shortages led to consolidation at that point. The West Bank once had many parades, they only have one in 2020. The rest moved to the Magazine/Napoleon/St. Charles/Canal route thereby putting extra pressure on those of us who live in the box.
Speaking of the parade box, it has expanded post-K. When I moved to the 13th Ward in 2000, I was only in the box on Thoth Sunday. In 2020, there are parades on Magazine almost every day. This number of parades puts an intolerable strain on citizens living within the box. Even those of us who love Carnival get tired of dealing with Chads and other annoyances.
The solution to many of these issues is to spread the parades out to the neighborhoods. Old school Carnival had its vices, but they were outnumbered by its virtues. I even have a fantasy of Endymion moving to Jefferson Parish, which is where the krewe’s roots are. It’s fundamentally a suburban parade with a suburban following. This is unlikely but I can dream, can’t I?
Unfortunately, none of this is likely to happen. NOPD remains understaffed and they’re already stretched thin during Carnival. More consolidation is just as likely as dispersion, alas.
These are not the only factors worthy of discussion but I’m writing a column, not a treatise. Another important issue is float speed. They go too damn fast, which may have been a factor in this year’s accidents. But barricades are NOT the answer, they cause injuries when improperly deployed.
Let’s talk politics. Mayor Cantrell’s on-the-spot decision to ban tandem floats effective immediately has bought her some unnecessary enemies. Here’s how I summed it up on the Tweeter Tube:
Insecure leaders make snap decisions without thought or study. That’s what we’re seeing again with Mayor Cantrell. Banning tandem floats w/o consultation with the Carnival community is foolish.
Mayor Cantrell projects confidence but increasingly appears to be in over her head. Her handling of the Hard Rock Hotel collapse has exposed her weaknesses. All leaders dislike criticism, but she seems to find it unbearable.
Cantrell needs to meet with the Carnival community after the season to come up with solutions to the issues raised in 2020. We’ve had tandem floats for decades without any previous fatalities arising from their use. If the concerned parties agree to ban them, so be it even though it will adversely impact the artistic integrity of several parades. The reactions from two of the super krewes in agreeing to comply with the 2020 ban are revealing. Orpheus called it a “recommendation” and Bacchus a “request.” The word “order” is notably missing from their statements.
Cantrell looks vulnerable now, but she’s not up for re-election until the fall of 2021. She would prefer to be in the line of arrogant and autocratic recent mayors who were re-elected easily such as Marc Morial and Mitch Landrieu. She may fit more into the weak but still re-elected model exemplified by Sidney Barthelemy and Ray Nagin. Cantrell increasingly reminds me of Nagin; only he was funnier. The last incumbent Mayor to lose re-election was Bob Maestri in 1946.
Shorter 13th Ward Rambler: Cantrell remains the favorite, but she’s given a potential challenger a donor base in the Carnival community. Bacchus has serious political juice, y’all. Stay tuned.
Carnival has always been a public expression of civic joy. It makes the TFC-ness (This Fucking City) of living in New Orleans easier to bear. I still had a fairly good time this year, but it was shadowed by Chaddery and tragedy. Come Ash Wednesday, we will repent our Carnival sins and hope for a better season in 2021.
And that’s the way it is on the 137th day since the Hard Rock Hotel collapse.
Let’s close on a lighter note with my favorite Mardi Gras song by the original 13th Ward Rulers, the Neville Brothers:
Let’s be honest: Louisiana has an abysmal record when it comes to planning for the state’s future.
You only have to look at our $14-billion backlog for construction and repairs of roads and bridges to find one example.
It’s an amount our legislators have seen swell – due far less to inflation than to neglect. Yet as the roads that annually carry these officials to the state Capitol crumble beneath them, our duly-elected representatives have duly refused to vote for increasing the fuel tax that provides the traditional funding for transportation infrastructure. The per-gallon tax on gasoline and diesel has not changed since 1989 – 31 years ago.
Perhaps the reluctance to realistically consider Louisiana’s long-term needs is an unintended effect of a law passed 25 years ago, when voters approved term limits on state legislators. Once legislative seats were no longer sinecures, instead prescribing finite time in office, lawmakers began focusing more on their next election, rather than looking to the extended future of their constituents and of the state as a whole.
There have been attempts to move Louisiana into the 21st century. Yet nearly every time one of our lawmakers proposes a progressive policy, the committee members considering the legislation’s life or death indicate they’re reluctant to advance it and the bill’s author asks to make it a “study resolution” instead. Since that only commits them to investigating the idea rather than actually doing anything about it, it’s one way to put the proposal on life-support. But as the thousands of trees sacrificed for paper to print the stacks of reports now collecting dust in state Capitol storerooms bear witness, there’s little chance the policy in the original legislation will ever be embraced and implemented.
For example, how many study groups, how many reports, how many white papers have said the state should revise its tax base? And yet the bills that would enact those best practices fail to get to the finish line, session after session after session.
There are a few exceptions to what seems to be an overall paucity of planning, in areas that don’t depend on the legislature for their future envisioning and design.
No Rogaine for Regrowing the Coast
The long and determined efforts of Louisiana’s congressional delegation started bringing federal funds into the state to pay for coastal wetlands restoration projects in 1990, and now the GO-MESA federal profit sharing, initially authorized starting in 2006, is bringing more than $90-million into the restoration projects annually, as well. In addition, there’s hundreds of millions of dollars more coming via the BP oil spill settlement. With these substantial monetary resources available – expected to be $958-million in 2021 alone – it’s no surprise that a regular effort is conducted to develop and update Louisiana’s Coastal Master Plan. Revised and updated in 2012, and again in 2017, Louisiana’s Coastal Master Plan will be officially upgraded again in 2023. Public hearings and discussions are already being conducted toward the drafting of that next iteration.
Focused heavily on a wide scope of projects designed to reverse the state’s coastal land loss, the plans thus far have basically paid mere lip service to the one thing that’s exacerbating all the other things contributing to our vanishing coastline. The 2012 plan, which was 190 pages in length, only mentioned “climate change” four times. The 2017 plan referenced “climate change” twice as much, but that’s still a mere eight times in 93 pages. The 2017 plan seems to view climate change more as just another factor to consider in trying to restore segments of the coast, rather than a catalytic fact now accelerating the death of coastal marshes and erosion of Louisiana’s land. The theme in this plan seems to be: “Substantial uncertainties remain, especially in regard to climate change.”
With no magic potion – no Rogaine – for restoring coastal land loss, let us hope extensive climate change analysis and modeling will inform the 2023 Coastal Master Plan, and actively require our oil, gas, and chemical industries in becoming part of the solution. As major contributors to global warming – not to mention their contributions to shoreline subsidence and carving storm surge sluiceways through Louisiana’s coastal marshes – they must vigorously involve themselves in repairing the damage rather than simply standing back and vigorously denying any culpability.
“It is estimated that 85% of jobs that will be available in 2030 have not yet been created or even imagined.” – Louisiana Master Plan for Higher Education
The state’s Higher Education Master Plan, adopted by the Board of Regents on August 28, 2019, has as its major goal “60% of working age adults achieving a post-secondary credential by 2030.”
It’s a laudable idea, especially since, as the Master Plan also states, “presently only 44.2% of the working age population, those aged 25-64, has a degree or certificate.” It’s also going to be quite a challenge, since it will mean more than doubling the number of residents annually earning a degree or certificate, based on the present rate of educational attainment in Louisiana. (And, of course, factoring in the retirement rate of all the Boomer generation.)
“To double the numbers by 2030 requires that we expand our thinking about talent and the tools by which talent is developed,” the plan says. “It will demand that Louisiana postsecondary education and its partners try new approaches, disrupt the status quo, implement new strategies for all potential student populations, enable all students to participate, and emphasize re-engagement of working-age adults.”
Louisiana BESE. Photo by Sue Lincoln
The Board of Elementary and Secondary Education endorsed the Regents’ plan in December 2019, and added a goal of their own, that “every student leave high school with either a college credit or an industry-based credential by 2029.”
Do you see what they did there? “A college credit” – one – or an “industry-based” credential.
Not very aspirational, BESE. It seems we’re aiming to have a primarily blue-collar state workforce.
Oh, wait. My bad.
Remember, these are the folks who branded our state Department of Education website “LouisianaBELIEVES.com” – rather than “Louisiana KNOWS” or even “Louisiana LEARNS.” That’s right, we believe – despite all data and evidence to the contrary – that our children will get a good education.
This is the same Board that’s made JAG, the weirdly (mis)named “Jobs for America’s Graduates,” a cornerstone of state efforts for “dropout prevention and recovery serving youth 12-21 years of age.” The majority of the job placements are with Wendy’s, Burger King, McDonalds, and similar fast food service establishments.
We’re proudly grooming more minimum-wage workers to ask, “Do you want fries with that?”
This shouldn’t be overly surprising, considering that for the past eight years the majority of BESE seats were bought and paid for primarily by Lane Grigsby, and to a lesser extent, Eddie Rispone. The goal of every student leaving high school (notice: that is leave, not graduate) with “an industry-based credential” is in keeping with the Erector Set’s outsized influence on educational policy in the state.
For example, there’s the JAG-LA pathway is known as “JumpStart”, placing students in training programs offered by Associated Builders and Contractors. Lane Grigsby was one of the founders of the ABC Pelican Chapter, and Eddie Rispone has been involved with ABC on the local, state, and national level for over 30 years, serving as national chair of the organization in 2003.
Yet while the Erector Set has made sure state policy favors feeding into the construction and industrial worker pipeline through the next decade, these captains of the construction industry know full well that they’ll be needing far fewer bodies for building in the future.
In the Dec. 6, 2019 article cross-published in the Times-Picayune, The Advocate, and at ProPublica.org, reporter Sara Sneath pulled back the curtain on the entire “It’s all about jobs” mantra chanted at us for decades by business and industry. The article, which specifically looks at the state’s ITEP tax breaks for job creation, reveals that many components of the industrial plants receiving the multi-year abeyance of property taxes are constructed modularly, in other countries, and are shipped into Louisiana for assembly. That means fewer construction workers, like those from Grigsby’s Cajun Industries, are needed here, and for less total time.
Methanex module from Chile, being unloaded in Geismar. Photo courtesy Jacobs Engineering Group
Current president and CEO of the Pelican Chapter of Associated Builders and Contractors, David Helveston, tried to spin this as being “good for workers, too.”
“They typically build components indoors, where weather doesn’t delay construction,” Helveston said. “And they work on the ground rather than being 60 feet in the air welding two pipes, making it a lot safer.”
The article, which came out more than three weeks after the governor’s race had been decided, never named Eddie Rispone specifically, though it obliquely emphasized one of the Bayou Brief’s criticisms of the Republican candidate’s campaign rhetoric: his insistence that he is a “job-creator” when he is actually a job eliminator. Sneath’s article points out that increasing automation, which is essentially what Rispone’s ISC Constructors designs and installs, has resulted in a 5% loss of chemical manufacturing jobs statewide, even as the number of large chemical industrial plants in the state increased 17% over the past three decades.
Trump rally for Eddie Rispone, Fall 2019. Screenshot by Sue Lincoln.
Is this the best envisioning of our future we can do?
What might happen if we – collectively – dream big, instead? In the next installment, we’ll look at some auspicious, even decidedly extreme, scenarios.
As lawmakers descend into Baton Rouge for the upcoming legislative session, they are steeling themselves for what will certainly soon be a protracted and contentious debate over tort reform, a more palatable euphemism than the more accurate term, ”corporate welfare.”
Prologue
Last year, the Bayou Brief, in the multi-part series “Wrecked,” chronicled the legislature’s debate over car insurance, unpacking the spurious and unsubstantiated claims that limiting an innocent victim’s access to the civil justice system would reduce the price of premiums in Louisiana and documenting a number of discriminatory practices that allow insurers the ability to charge drivers more on the basis of gender, credit rating, marital status, and even for serving on a deployment in the military.
In Part One of this report, I begin by scrutinizing the validity and objectivity of those most responsible for promulgating the widespread belief that Louisiana‘s legal climate is somehow uniquely and singularly bad for business. Because two surveys in particular, the U.S. Chamber’s Institute for Legal Reform’s State Legal Climate Survey and the American Tort Reform Association’s Judicial Hellhole Ranking, have played an outsized role in creating this perception, policymakers and government officials should first consider whether their characterizations of Louisiana are grounded in accurate data.
I then consider the recent history of tort reform in Louisiana, focusing on the careers of two of tort reform’s most notable proponents, former Gov. Mike Foster and Louisiana Commissioner of Insurance Jim Donelon.
After considering the role former Gov. Foster had once played and the role Insurance Commissioner Donelon continues to play, in Part Two, I will turn our attention to the specific components of the bill soon to be considered in the legislature and the ways in which the bill’s leading supporters have grossly overstated their case and failed to disclose significant facts that contradict their central justification.
Finally, I will discuss four bills that were recently pre-filed by state Sen. Jay Luneau, arguing that all four represent both good public policy and a documented way to reduce premiums, particularly for those who confront institutional and societal discrimination because of factors outside of their own control.
But first it is important to know what, exactly tort reform actually means and who is behind the perennial campaign for tort reform in Louisiana.
At its core, tort reform requires we ask a simple question: Who is responsible for the damages of an innocent victim?
The War on Civil Justice
How Big Business and Industry Have Spent a Fortune Convincing Louisianians to Relinquish Their Legal Rights
There’s a sure-fire way to rile up nearly any lawyer in Louisiana, especially one who didn’t move elsewhere for law school: Tell them you think the state’s civil law system and its unique traditions are inferior and illogical.
Be warned in advance, though. There’s also a chance you’ve committed yourself to hear a lengthy soliloquy on the numerous reasons you’re ignorant and wrong. Today, Louisiana law is much more accessible to those not familiar with the state’s Napoleonic tradition than it once was, but for most of the state’s legal community, it’s still a point of pride. And there really is a compelling argument that Louisiana‘s system is better and more intuitive than the way they do things in the other 49 states.
It is also the reason much of the legal community in Louisiana is skeptical about the legitimacy of the rankings by conservative and libertarian-leaning organizations that denounce the state’s “legal climate” and smear it as a “judicial hellhole.” Are the people who make these determinations even lawyers, or are they just ideologues? And if they are lawyers, have any of them ever practiced law in Louisiana?
In recent years, both the U.S. Chamber of Commerce’s Legal Climate Survey and the American Tort Reform Association’s (ATRA) Judicial Hellhole rankings have received a significant amount of media attention in Louisiana, which both consider among the nation’s most terrible, rotten places to get sued. Conservative state legislators repeat these rankings as if they’re scientific fact (or, if you prefer, gospel truth). And other organizations latch onto them in support of their agendas, without bothering to know whether they’re grounded in fact. In recent years, LABI, the conservative business group, has aggressively promoted the Chamber’s survey and the ATRA’s rankings to their members and to the state’s press.
But the truth is that neither the survey nor the ranking are credible, peer-reviewed studies. They’re bogus, annual exercises in fake news, and they are each at the center of the campaign by conservative Louisiana legislators to justify depriving innocent victims of the legal rights currently protected by state law. Far from ensuring a better legal climate, the changes that these legislators are proposing would only exacerbate a two-tiered judicial system and disproportionately harm the state’s most vulnerable.
Perhaps what is most remarkable about the Chamber’s and the ATRA’s work is how easy it is to uncover the farce, which makes the Louisiana media’s willingness to present them as legitimate news all the more troubling.
I have written before about the Chamber’s survey, which argues that Louisiana’s “legal climate” is the worst in the nation. How did they make this determination? They paid 1,300 corporate lawyers who work at elite defense firms to answer a few questions on a poll. None of these lawyers are based in Louisiana.
I’ll let Professor Elizabeth Thornburg of SMU Law, my alma mater, explain:
“Judicial Hellholes are selected in whatever way suits ATRA’s political goals. The choice is not based on research into the actual conditions in the courts.…[T]he point of the hellhole campaign is not to create an accurate snapshot of reality. The point of the hellhole campaign is to motivate legislators and judges to make law that will favor repeat corporate defendants and their insurers, and to spur voters to vote for those judges and legislators who will do so. … As well-founded, honest commentaries on judicial systems, [ATRA’s hellhole reports] are a major failure….
“(The) reports represent opinions as facts, use quotations and anecdotes in a misleading and manipulative way, omit bad facts, and misuse statistics.
“Reasonable scholars on all sides of the substantive and procedural issues involved in tort litigation have debated and will continue to debate difficult issues such as deterrence, insurance, proof of causation, procedural efficiency, the role of the courts, the limits of science, and best choice of decision maker. The hellhole reports add nothing to these thoughtful and nuanced debates; indeed, they debase that debate by misleading and misinforming citizens and lawmakers.”
Again, because of the rigorous scholarship conducted by people like SMU’s Thornburg and Cornell Law professor Theodore Eisenberg, it’s not difficult to uncover troves of evidence that prove these rankings are bogus propaganda. In the rush for tort reform, we risk depriving ourselves of the only recourse available when the most powerful and wealthiest corporations in the world decide to trample all over our backyard.
Just ask former Louisiana Gov. Mike Foster.
Round One
Mike Foster’s Legacy and Legacy Lawsuit
Former Louisiana Gov. Mike Foster and his DHH Secretary, Bobby Jindal. Image by Bayou Brief.
Before the ink was dry on the series of “tort reforms” that Louisiana Gov. Murphy J. “Mike” Foster III signed into law in 1996, the state’s business lobby and a small handful of deep-pocketed conservative donors began clamoring for another round. This is not to suggest they weren’t satisfied with the first round; they were thrilled. Among other things, the new laws replaced Louisiana’s “strict liability” system with a “comparative fault regime” and “severely restricted plaintiffs’ ability to seek punitive damages” in cases involving hazardous materials and In auto insurance claims.
The changes had been touted as a “cornerstone victory” by allies of the state’s new Republican governor, who were certain the economy would flourish as a result. The insurance industry, which had pleaded for the new laws, promised that rates would go down as well, having vanquished their most formidable opponents- trial lawyers.
Foster, a wealthy patrician who earned a fortune in oil and gas and through his construction business and who continues to live on his family’s sprawling sugarcane plantation in rural St. Mary Parish, had just been elected to his first of two terms. On the campaign trail, he denounced what he called “jackpot justice,” arguing that lawsuits against oil and gas companies and auto insurers were stifling opportunities and driving away jobs.
A century before, his grandfather, Murphy J. Foster, Sr., had also served as the state’s governor and is best known for his shameful and long-lasting efforts to disenfranchise African Americans. Today, Mike Foster’s eight years as governor are largely remembered nostalgically and warmly, and to be sure, during his second term, the far-right wing of his party were less successful in influencing his policy agenda. His decision to enroll in Southern University Law’s evening program was widely mocked among white conservatives, many of whom were already skeptical of the young and increasingly diverse staff he had begun to assemble. (One of the most notable members of his administration was a Rhodes Scholar from Baton Rouge that he’d plucked from the consulting giant McKinsey to be his Secretary of Health and Hospitals. His name was Bobby Jindal).
Louisianai8 Gov. Mike Foster
Still, it is impossible to overlook the fact that during his first campaign, Foster had purchased a mailing list from David Duke, and only four days after he took office, he signed an order abolishing affirmative action programs in state government. The same day, he recognized Martin Luther King, Jr. Day, already a federal holiday, as a state holiday as well, a move that had been opposed by then-state Rep. Steve Scalise.
Even before he kicked off his reelection campaign, it became apparent that the predicted miracles of tort reform never quite materialized, at least when it came to the state’s bottom line. By 1999, Foster lined up behind a proposal to increase business taxes, and the very people who had been singing his praises after tort reform were now outraged.
After he left office and retreated back to his family’s plantation, Foster discovered that the mammoth oil company, Exxon, had damaged and contaminated his land, and in what may be considered the most ironic (or most hypocritical) decision of his entire professional career, he hired one of Louisiana’s sharpest and most successful trial lawyers, Glad Jones, to file suit against Big Oil itself.
“He’s the governor who took away punitive damages in April of 1996, soon after he got into office,” Jones told the Daily Advertiser. “But on behalf of his family partnership, when he discovered the damage that had been done to his property as a result of 50 years of oil and gas activities, he was left in no other position really other than to bring a lawsuit asking the oil companies to clean up the property.”
The case was eventually settled, but only after a protracted and contentious series of court hearings. “You think maybe that they would say to Mike Foster, ‘Look you worked with us back in 1996, and we’re going to come in and get you cleaned up.’”
Saying the Quiet Part Out Loud
The Insurance Lobbyist Who Told the Truth
“I think it’s a misnomer to every really believe that your (car Insurance) rates are ever going to go down,” – Kevin Cunningham, an auto insurance industry lobbyist, April 24, 2019.
Last year, at least initially, the Louisiana Association of Business and Industry (LABI) had been reluctant to use the term “tort reform;” this year, however, they’ve dropped the pretense. While there is no documented evidence that the bills proposed by LABI-aligned legislators have any correlation with the price of premiums, we do know that ending these discriminatory practices has been proven to result in cost savings.
Kevin Cunningham had been attempting to answer a simple question from Louisiana state Sen. Rick Ward III. “Have there been any things done in other states that have seen their rates (go down)?” Ward had asked.
“There’s so many pressures for (rates) to go up,” Cunningham said. “Medical costs continue to go up; the cost of a vehicle continues to go up; the amount of wages that you have to compensate people for continues to go up. So, maybe what you do is slow the rate of rise, but to say that you’re going to have something that’s going to bring the rates go down when there are other factors that make the rates go up is somewhat difficult.”
Kevin Cunningham at far right. (Click to play).
Perhaps unwittingly, Cunningham said the quiet part out loud, revealing a central truth about how the auto insurance industry operates in Louisiana: No matter what, the industry will turn a hefty profit.
As LABI and a faction of lawmakers ramp up their campaign in advance of the upcoming legislative session, it is worth reflecting on what their previous efforts exposed about the auto insurance industry in Louisiana and even more critical to consider the effects that their proposed tort reforms would have on our civil justice system.
A recent digital ad by the Louisiana Free Enterprise Institute in support of tort reform to reduce auto insurance premiums.
If you include only the coverage that drivers are mandated to carry, Louisiana ranks as the fourth most expensive state in the nation for car insurance; if you add up the price of optional coverage, it’s the second most expensive state, directly under Michigan, the cradle of the American auto industry. For all of the tergiversation and the refusal to acknowledge the industry’s responsibility over its own business practices, the states with the most expensive car insurance premiums all have different legal frameworks.
However, there is a simple and direct reason Louisiana’s rates have soared: The state agency responsible for enforcing regulations and ensuring the marketplace is fair, competitive, and accountable has been more interested in protecting the profits of insurance companies than in protecting citizens from exploitive practices, a symbiotic relationship between government and business also known as “regulatory capture.”
A floor note distributed to Louisiana state representatives prior to last year’s floor vote on the Omnibus Premium Reduction Act. Source: Bayou Brief.
Following the abolishment of the Insurance Rating Commission in 2008, Louisiana’s auto insurers are no longer subject to the scrutiny of consumer watchdogs, and as a consequence, the industry has not only been able to operate with minimal oversight; they’ve also controlled the narrative. So, it should be little surprise that when critics started making noise over the state’s expensive rates, the industry and its conservative allies refused to take any responsibility. The problem, they asserted rather conveniently, was Louisiana made it too easy and too lucrative to sue them.
Cunningham, as it turns out, was only partially right: A few months after his testimony in April, three of the state’s largest auto insurers, State Farm, GoAuto, and Farm Bureau, announced, seemingly on a whim, they would be cutting their rates on car insurance, a decision that had nothing to do whatsoever with the machinations of the business lobby. Ostensibly, the justification for the rate decrease was that all three companies had suddenly realized they were losing customers. They hoped that lower prices would lure in new business. At least that’s the spin they’ve put on it.
It’s just as likely that insurers were worried their most important ally was facing a tough reelection campaign. He needed a win, and they couldn’t afford to lose him.
Jim Donelon (left)
Insurance’s Commissioner
The Career Politician
Louisiana Insurance Commissioner, James “Jim” Donelon III, doesn’t mind being called a “career politician.” After surviving a bruising reelection campaign last year, Donelon, 75, is set to become the longest-serving Insurance Commissioner in state history. Indeed, there are few people who have held political power for as long as he has. But arguably what is most notable about Donelon’s career aren’t the elections he won, but the ones he lost.
A native of Jefferson Parish in suburban New Orleans, Jim Donelon grew up around politics. When he was a teenager, his uncle, Harahan Mayor Tom Donelon, became the area’s most powerful official, Parish President.
But it was Edwin Edwards who gave Donelon his first big break, hiring him as his executive secretary when he was barely out of law school and naming him as one of only four people who were authorized to speak to the media on the governor’s behalf.
He was just 27 when he launched his first campaign, narrowly losing a race for District Attorney to John Mamoulides after briefly stepping down from his job in the governor’s office. Edwards would hire him back with a new title, executive counsel, a role that, in reality, was already occupied by the legendary Louisiana lawyer, Camille F. Gravel, Jr. Regardless, it was a job he didn’t keep for long. In 1975 and with his uncle retiring, Donelon had better luck when he ran for the Chairmanship of the Jefferson Parish Council.
Still, he was restless and in a hurry to win power before earning it. Toward the end his term on the Parish Council, he lost a bid for Lieutenant Governor to Bobby Freeman.
Following his defeat in 1979, Donelon, who was still considered a rising political star, aimed his sights even higher, running for the Congressional seat that Dave Treen left open following his successful campaign for Louisiana governor. Serving in Congress had always been his ambition, and when the opportunity presented itself, he fought hard for the job. Although he had always considered himself a conservative, Donelon didn’t change his party affiliation to Republican until early 1980, no doubt inspired by Treen, who had become the first Republican elected to the state’s top job since Reconstruction.
Edwin Edwards endorsed his opponent, another ambitious young politician named Billy Tauzin. Tauzin would sail to victory in the runoff, and Donelon, now nearly out of options, eventually made his way to the state legislature, where he’d remain for more than 17 years.
In 1998, Donelon would throw his hat in the ring one more time for federal office, challenging the incumbent Democrat John Breaux for a seat in the U.S. Senate. By then, it became evident that Donelon’s hyper-conservative and increasingly erratic politics were well outside of the mainstream, even in Louisiana. Among other things, he campaigned on a promise to abolish the Internal Revenue Service.
John Breaux trounced Donelon so badly that when he ran for district judge in his home parish the following year, he lost that race as well.
It was in the state House of Representatives where Donelon first began fashioning himself as an insurance expert. He’d admired the way Tauzin, his former foe, had become an authority on the oil and gas industry, and he hoped to do the same with insurance.
Following his unsuccessful campaign for judge, Donelon took a job as the Deputy Aide to Louisiana Insurance Commissioner Robert Wooley. He liked to boast that he was Wooley’s “Dick Cheney,” which would only seem self-deprecating if it hadn’t already been well-known that Vice President Cheney was, at the time, considered more powerful than the President himself.
When Wooley stepped down from office in 2006, joining the civil defense law firm, Adams and Reese, to work on insurance regulation in the aftermath of hurricanes Katrina and Rita, Donelon was automatically appointed Commissioner. He has subsequently won the job in four consecutive elections.
Now an elder statesman, Donelon has at times been the beneficiary of a public and a media that simply wasn’t around to witness the outsized sense of entitlement and naked ambition that had characterized his early career, and in the 22 years since his loss to John Breaux, Donelon’s brand of radical corporatism has been somewhat obscured by the dull and esoteric parlance of insurance-speak. Today, hardly anyone remembers that Donelon, as a legislator, had given a Tulane Legislative Scholarship to his own daughter.
Donelon claims he has the job he wants and that he’s perfectly okay with the fact that he never realized his dream of becoming a member of Congress. But when he recently spoke about not being recognized by anyone outside of his home parish, it was difficult not to hear the melancholy in his voice. Jim Donelon, after 45 years in public office, still occasionally and unwittingly reveals himself to be a man who got into politics not necessarily because he wanted to be powerful but because he wanted to be popular.
Although he speaks confidentially, albeit somewhat didactically, on what is presumably his expertise, insurance, it is usually within the context of a kind of autobiographical history lesson. He is far less comfortable and in command when addressing the mechanics of the business, and he struggles to articulate a coherent set of public policies or when he is asked to explain the actuarial analysis that justifies the industry’s antiquated and discriminatory practices. On one issue, though, Donelon is abundantly clear: He is cozy with the insurance industry, and though he denies it, the industry isn’t just enthusiastically supportive of the key changes contained in the proposed “tort reforms;” industry representatives were a dominant presence during the meetings of a task force that had been hastily put together to make recommendations on changes in state law that they believed would decrease costs.
Tellingly, though, the finished product didn’t turn out the way they had hoped. Even though they had stacked the task force’s actuarial subcommittee with the industry’s own actuaries, the subcommittee struggled to find any significant savings. In fact, the subcommittee’s findings were so embarrassing that the task force’s chairman, Kirk Talbot, concealed it from his legislative colleagues for nearly a month.
Recently, during a presentation at the Baton Rouge Press Club, Commissioner Donelon grossly exaggerated the subcommittee’s findings, claiming the savings would be exponentially larger than predicted.
To be sure, it took Donelon a little bit of time to realize he hadn’t gotten the same set of talking points as the other members of the task force. When he was first asked by members of the task force about what was causing Louisiana’s rates to be so high, Donelon named three “exclusive“ factors: “distracted driving, cheap gas, and cost of repairs.”
“The good news,” he said, “is that we have seen a stabilization of the rate increase trend.”
A year later, he was now certain the true cause: Lawsuits.
“I do think there should be a rate difference. I am for gender as a rate-setting factor.”
So says Louisiana Insurance Commissioner Jim Donelon, who addressed the Baton Rouge Press Club on Monday, February 17.
Donelon, who has jurisdiction over life, health and accident, property and liability, marine and inland marine, fidelity and surety, and title insurance industries in the state, won his fourth full term last fall. He fended off a strong challenge by fellow Republican Tim Temple, taking 53% of the primary vote, compared to Temple’s 47%, with an 82,596 vote difference out of more than 1.1 million ballots cast.
That closer-than-he-expected result was generally believed to be due to the 75-year-old commissioner’s failure to go all-in on last year’s HB 372. Rep. Kirk Talbot’s “Omnibus Premium Reduction Act,” was – as the Bayou Brief reported thoroughly in our “Wrecked” series last spring – primarily nothing more than an excuse to enact tort reform. Donelon himself, when testifying about that bill in the House Insurance Committee last April, said he was unsure what auto insurance rate impact could be achieved by the bill’s lowering of the state civil jury trial threshold.
Now Donelon is singing from the “All We Need Is Tort Reform” hymnal.
“Ten years ago, Michigan was number one with the highest rates, and Louisiana was number two. Michigan fixed their program last year, and I am concerned that we will now be number one with the highest rates.”
Donelon says commercially-licensed transporters, such as big-rig truck drivers, especially loggers, ambulance drivers, and school bus drivers are reeling every time they renew their vehicle insurance policies, because they’re considered to be “deep pockets” when these $50,000+ civil suits get heard by a jury.
“We need to drop the jury threshold,” Donelon now says, “Since it results in defendants and their insurers handing out fifty-thousand-dollar checks like cotton candy to avoid trial. $5000 is better than $50,000, because it avoids nuisance lawsuits.”
The reprise of the Omnibus Premium Reduction Act is HB 9 in this upcoming session, authored by Rep. Ray Garofalo (R-Chalmette), and will first be heard not in the House Insurance Committee, but in House Civil Law. That’s because Civil Law’s chair and vice chair are Republicans, while the House Insurance committee chair and vice chair are Democrats. Each panel has Republican majority, but the chairman can determine when to call for the vote on the bill, potentially killing or advancing it when the full committee component is not in the hearing room.
Donelon told the Press Club that the omnibus bill is one of five in what he is calling “our reform effort,” adding, “If we do the five bills, we will see relief in 24 months.” The Commissioner maintains “This is not my idea: it was Kirk Talbot’s idea. His task force came up with it.”
Kirk Talbot (R-River Ridge) was last term’s House Insurance chairman. He has now been elected to the state Senate, and even though he’s a freshman in the upper chamber, the owner of Lucky Dogs, the ubiquitous New Orleans street corner hot dog carts, will now be chairing the Senate Insurance Committee. In 2018 Talbot authored a resolution asking the Insurance Department to “assemble a task force to address the high automobile insurance rates in the state.” The task force, composed of a chairperson from the Department of Insurance and four members from insurance companies, looked at changing the jury threshold, and predicted at best the rates might eventually drop 0.5%. Most of the other “tort reform”-linked proposals were evaluated in the task force report as “might be beneficial, but could not calculate the cost savings.”
Yet Donelon insists, at this most recent Press Club meeting, “Our system is broken in many ways, and therefore we’re going to address it in many ways.”
During the question-and-answer session that followed Donelon’s statements, I asked him about one of the many ways the companies have been documented to jack up rates, specifically the “widows’ penalty,” which our “Wrecked” series analyzed and which nationally-recognized consumer advocate Doug Heller testified about to the Louisiana Senate Insurance Committee last May.
“There is no such thing,” Donelon flatly told me. “Single women pay higher premiums than married women. It’s no different if you’ve never married, or divorced, or widowed. I don’t know if it’s the same for men, but I do know that it’s not because you are a widow. It’s because you are single.”
(Last fall, when he was still running for re-election, Donelon told the Sept. 16th meeting of the Baton Rouge Press Club that he would “be happy to support” a bill prohibiting the widows’ penalty, adding, “Know that it’s not being utilized by any companies in Louisiana today.”)
A journalist from the Baton Rouge Business Report pressed the issue this time. “Are you saying you agree with institutionalized gender discrimination?” she asked.
“Yes, I do. You know, it used to be against teenage males, because it was believed they were the more aggressive drivers. Now it’s just based on age, because all teens – boys and girls – are aggressive drivers. I do think there should be a rate difference. I am for gender as a rate-setting factor. I also think it’s right to charge more when the customer has a lower credit rating.”
Remarking that only Maryland and California prohibit the use of credit ratings in setting insurance rates, Donelon said that if Louisiana banned the credit factor, then everyone – even those who don’t “deserve” it – would have to pay higher rates.
“It’s not my fault that rates are where they are,” he said. “It’s not in the insurance companies’ best interest to lower rates.”
Yet Donelon and his department have sole authority to say yea or nay to the insurance companies’ rate hike requests, and they do so basically out of public view. He maintains that “Rate filings are public record, and say what the company is making and what their profit percentage is. And if their profits go up, their rates will necessarily go down.”
Sure.
It hasn’t always been some mysterious formula conjured up by alchemists and actuaries. Up until January 1, 2008, Louisiana had a public body known as the Insurance Rating Commission. Chaired by the state’s elected Insurance Commissioner, the IRC had six additional members appointed by the governor. This commission held regular public hearings on company requests to raise (or rarely, lower) insurance rates. The company had to justify – in a public forum – the reasons behind the request, and the Insurance Rating Commission was prohibited by law from approving a rate increase for any insurer more than once in any 12-month period.
Jim Donelon, who became Insurance Commissioner upon the resignation of J. Robert Wooley in February 2006,right after the twin disasters of Katrina and Rita, was the primary advocate for abolition of the IRC.
Former Insurance Commissioner Robert Wooley
When Wooley left office, he was facing investigation for possible ethics violations.
Wooley had become Louisiana Insurance Commissioner in 2000, when the previous officeholder, Jim Brown, was convicted of lying to the FBI. Jim Brown had headed the Insurance Department since 1991, when his predecessor in the position, Doug Green, received a 25-year federal sentence for taking $2-million dollars in illegal campaign contributions from insurance companies doing business with the state.
And Doug Green had become Insurance Commissioner in 1988, after Sherman Bernard, who served in the post from 1972 to 1988, was convicted on federal extortion charges.
State campaign finance reporting requirements say Donelon’s comprehensive disclosure of his 2019 campaign contributors isn’t due till February 23, 2020, but it is known from his prior piece-by-piece filings that he received no less than a half-million dollars and potentially more than one million in campaign funds from the companies and agents of the insurance industry he regulates.
How does that fit with “discrimination”? Consider that word is defined as “prejudiced treatment or consideration of, or making a distinction towards, a being based on the group, class, or category to which they are perceived to belong.”
Decades before boaters rose up during a dire moment in American history to rescue their neighbors in the aftermath of Hurricane Katrina, Louisiana was under attack from a different foe – Nazi Germany. With the Gulf Coast and the Atlantic Seaboard threatened by an enemy hidden under the sea, civilian boaters rose to the challenge and helped change the outcome of the early war.
During a hot and still afternoon on July 30th 1942, the German submarine U-166 raised its periscope off the Louisiana coast about 45 miles due southeast of Port Eads at the mouth of the Mississippi River. Three nights earlier, U-166, under the command of 28-year old U-boat commander Hans-Günther Kuhlmann, had completed its primary mission laying mines at the entrance to South Pass in what’s known as the crow’s foot in the river delta.
Inbound for New Orleans from Port-of-Spain, Trinidad, the passenger freighter Robert E. Lee was steaming hard for the safety of the river. Overcrowded with European refugees, American construction workers, and ragged survivors from U-boat attacks on shipping in the Caribbean, the steamship was about to share the fate of 55 other ships sunk by Nazi U-boats in the Gulf of Mexico in 1942.
After the Japanese attack on Pearl Harbor, Nazi Germany set its sights on the coastal shipping lanes along the East Coast of the United States and unleashed the U-boats of the Kriegsmarine. Operation Drumbeat streamed an initial five U-boats towards the Atlantic coastline in January of 1942 and by June, another 30 submarines had conducted war patrols from Florida to Maine and 226 merchant ships lay on the bottom in American coastal waters.
Shipyards were ramping up construction of warships, and with the U.S. Navy occupied providing anti-submarine escorts for supply convoys sailing to allied England and Russia and fending off the Japanese in the Pacific, the mostly unchallenged Nazis referred to this time as the “American hunting season.”
Because the oil and gas industry was the lifeblood of the nation’s military and war economy, tankers moving crude and refined oil products were high value targets. Emboldened by their success, the Kriegsmarine turned their gaze on the oil producing and refining Gulf Coast, specifically targeting the shipping rich waters near the entrance of the Mississippi River. By the summer of 1942, the war had come to the Gulf of Mexico in full stride.
With the U.S. military censoring many of these attacks and their efficacy from the press, what was unknown to the American public in the early stages of World War II was how undefended the sprawling coastlines of the United States were, even though ships were regularly exploding from torpedo strikes offshore and in full view of coastal towns and beach communities.
German commander Harro Schacht of U-507 was the first to enter the Gulf of Mexico – what was described to him and his fellow sub commanders as the soft underbelly of a nation unprepared for war. On May 4th 1942, U-507 sank the steam merchant Norlindo due west of the Florida Keys and then two other ships over the next twelve hours including the oil tanker Munger T. Ball.
In his war diary, Schacht described the aftermath of torpedoing the first oil tanker in the Gulf: “The whole sea burns in a wide circle around the spot where she sank. Over it stands a gigantic mushroom of smoke.”
For the residents of coastal fishing communities peppering the marshy coastline of Louisiana near the mouth of the river, these huge fireballs on the Gulf horizon would become regular affairs over the summer of 1942.
The Robert E. Lee.
Originally destined for Tampa, the Eastern Steamship Line’s 375’ Robert E. Lee under the command of William C. Heath was running full bore for the river at 16-knots – the captain was well aware of the acute U-boat threat, especially in Louisiana’s coastal waters.
The Robert E. Lee had peeled off of a convoy in the Northern Caribbean and was on the last leg of its voyage across the Gulf of Mexico under escort from a U.S. Navy patrol craft. Out of 428 souls crammed onboard the ship, 166 were merchant seamen rescued from three oil tankers sunk in U-boat attacks only weeks before in the Caribbean. As part of the Kreigsmarine’s shifting strategy with the American Navy and with Coast Guard and coastal air defenses scrambling to counter the lethality of their East Coast attacks, long-distance U-boats were refocused to run staggered sorties into the Gulf of Mexico with the goal of having at least two submarines prowling the waters of the northern Gulf at any time.
At the height of the war on the Gulf Coast over the summer of 1942, there were 13 U-boats active in the Gulf of Mexico, including U-166. Grumman J4F1 Widgeon seaplanes armed with a single wing-mounted depth charge and flown by inexperienced civilian auxiliary pilots were deployed in the early summer to counter this fierce U-boat assault on the Northern Gulf Coast. Patrols from Biloxi, MS and Grand Isle, LA were eventually joined by a squadron of depth charge carrying blimps lifting off from sugarcane fields in Houma, LA.
With active military pilots and crews occupied with the war in the Atlantic and Pacific, these Civil Air Patrols were too few in number to be of any real consequence during the height of the U-boat threat. Given the expanse of open Gulf near the mouth of the river, these airmen and their efforts were mostly relegated to heroic recovery operations of merchant mariners after a distress call was made from a torpedoed ship.
After commissioning in March of 1942 and an uneventful initial war patrol in the waters off England, the 252’ long-range IXC submarine U-166 and her crew of 52 sailed on June 17th 1942 from German-occupied Lorient, France and sank three convenient ships in the Florida Straits while transiting into the Gulf of Mexico. U-166 then made way for the mouth of the Mississippi River.
U-boat commanders found Louisiana’s coastal waters to be target rich and ideal blinds for hunting with the muddy water from the river and the bays and estuaries mixing into the Gulf and concealing their dark silhouettes at periscope depth – a sub commander’s greatest fear was to be spotted from the air while submerged at shallow depths in pristine coastal waters. Turbid waters were also thought to interfere with the effectiveness of early sonar systems employed on U.S. naval vessels.
Hunting only a few miles from where the Deepwater Horizon oil rig would explode and crash to the bottom of the Gulf 68 years later, Kuhlmann had the 5,184-ton Robert E. Lee under the barrel of his torpedoes. U-166’s first combat patrol in American territorial waters was, so far, unmolested and a success with its primary mine laying objective completed and three confirmed kills on the bottom.
Hans-Günther Kuhlmann.
The standard operating procedure for attacking commercial shipping was to fire one of the 22 torpedoes carried by the IXC class, and then, if necessary, surface and finish the ship with fire from the U-boat’s 105mm deck gun. Unaware there was a U.S. Navy anti-submarine patrol craft escorting the coastal liner about 1,000 yards in the lead, Kuhlmann ordered his crew to fire a single torpedo, and he held position to await the result.
At around 16:30 hours, lookouts and passengers onboard the Robert E. Lee spotted the torpedo’s wake 200 yards out and watched as it drove in and slammed aft of the engine room of their steamship. 404 passengers and crew abandoned ship in the chaos with some lucky enough to climb in or cling on “six lifeboats, eight rafts, and five floats,” but the majority donned life jackets and dove off the side of the ship as it foundered. Within 15 minutes, the Robert E. Lee sank by the stern and carried 25 souls down with it.
Looking to avenge the loss of his escort responsibility on PC-566’s first mission, Lt. Herbert Claudius commanding the Navy patrol craft doubled back to the last known position of the U-boat and dropped two sets of depth charges on a sonar contact he believed initially held position to witness “the sinking of the Robert E. Lee.”
Claudius would later claim a possible kill of a U-boat in his after action reports when an oil slick materialized in the area where he had attacked the sub, but the Navy was incredulous. They completely discounted his claim due to the fact that he and his crew had yet to undergo formal anti-submarine warfare training and took his command from him – a fact that would dog him for most of his otherwise stellar naval career and land him with a desk job.
In 2001, an oil services company conducting survey work for an undersea pipeline investigated two sonar contacts first discovered in 1986 and thought to be the Robert E. Lee and the steam merchant Alcoa Puritan sunk by U-507 on May 6th 1942. Using an autonomous underwater vehicle it was quickly discerned that the second wreck was a German U-boat – the U-166. The two were separated by less than a mile and resting at a depth of 5,000-feet of water, and U-166 had obvious damage from a depth charge towards its bow – vindicating Lt. Claudius.
After six decades Claudius was posthumously awarded the U.S. Navy’s Legion of Merit medal with a combat “V” as well as given credit for the only sinking of a German U-boat in the Gulf of Mexico.
Wreckage from the German submarine, U-166.
24 other ships and tankers lie sunk by Nazi U-boats in Louisiana’s coastal waters and join another 32 sunk throughout the Gulf of Mexico in 1942 – the vast majority trending along the seafloor where they crossed paths with the Kreigsmarine’s classified navigational routes from the Florida Straits to the mouth of the Mississippi River.
The United States government was fully cognizant of the magnitude of these attacks on both the East and Gulf Coasts and the military was under extreme pressure, and at something of a loss, to counter this existential threat. By the summer of 1942 and with an estimated 25% of American oil tankers sunk or damaged, the oil and gas industry informed the U.S. War Department that the burgeoning war economy would grind to a halt from a lack of fuel in only nine months due to these unsustainable losses.
During the First World War and facing a threat from early iterations of German U-boats on the East and Gulf Coasts, the military had put out a call requesting the owners of large recreational sailboats and “speedy” powerboats to loan or lease their boats for $1 a month to the government for anti-submarine reconnaissance patrols. Boat owners responded and “mosquito fleets” were organized along coastal waters and ports.
These mosquito fleets weren’t a panacea to the U-boat threat in World War I, but they were a solution that filled a hole in existing U.S. military capabilities. The navy dusted off these plans again in 1939, but with the severe threat from modern and effective German and Japanese submarines in 1942, this quasi-military naval militia, branded as the Coast Guard Auxiliary, was supercharged. American boaters answered the call in droves and a surprising ragtag fleet of recreational boaters and commercial fishermen stepped forward and offered up their boats and themselves for anti-submarine reconnaissance and rescue operations along American coastlines.
These coastal picket forces, made up entirely of unpaid civilian volunteers who were exempt from regular military service due to hardship, dependency or for being too old for active duty allowed the Navy and Coast Guard to free up manpower and resources to focus on the greater objectives in the war. In many ways, this civilian naval militia created and formalized during wartime as the United States Coast Guard Auxiliary would be a harbinger of what is today known as the Cajun Navy and certainly one of the early examples of civilian boaters rising up during a dire moment in American history.
Bar pilot Captain Albro Michell was at the helm of a 122’ sea-going tugboat near the Mississippi River’s South Pass late in the day on July 30th 1942. The legendary tug Underwriter had served in the U.S. Navy during the Mexican-American War and World War I, and was now employed as a tugboat for the Bar Pilots Association. Michell was on a quick supply run delivering food and sundries to the remote pilot’s station, but before his crew tossed lines onto the pilings, a flash call came over the radio that a passenger liner was torpedoed and hundreds of people were languishing in the Gulf.
Michell immediately powered Underwriter out of the river towards the last known coordinates of the Robert E. Lee and into a new war.
This was a working coast, and despite the government’s efforts to censor stories on the effectiveness of the U-boat attacks on coastal shipping, it was a rather poorly kept secret. With hundreds of shrimp and oyster boats plying the Louisiana coastline on any given day, the crews of these trawlers and luggers were growing accustomed to fishing survivors and bodies out of the Gulf as the U-boat toll mounted. Civil Air Patrol seaplanes from Biloxi and Grand Isle were regularly flying over New Orleans filled with burn victims rescued from torpedoed ships. Landing in the Gulf in all weather and sea states to extract these people from life rafts or directly from the oil covered sea, the pilots would then beeline to West End and land on Lake Pontchartrain in the shadow of Southern Yacht Club and deposit them into waiting ambulances. A rash of “flying boats” coming in low over the city from the south was an obvious sign that another ship had fallen victim.
With the hospitals in New Orleans filling with front-line war casualties – these U-boat attacks were an impossible secret to keep on the Gulf Coast. With this exact situation playing out along the Atlantic coastline of south Florida and the Outer Banks of North Carolina, the disconnect from the lack of news coverage and the reality on the ground and the water was enormous.
At 20:30 hours, the Underwriter arrived on the scene in the Gulf where seaplanes and the sub-chaser SC-519 had joined PC-566 to rescue survivors. Michell pulled alongside PC-566 and transferred 50-60 men, women and children rescued by Claudius and his crew onboard.
As the 30-year old Michell helmed Underwriter through the dead calm of this late July night to the fishing community of Venice, LA – rescuing these people was personal for him. Two months earlier he was notified that his 26-year old brother Bernard had died in the sinking of the steam tanker David McKelvy after it was torpedoed by U-506 35-miles south of the Mississippi River.
The war was just offshore. Everyone knew it, people were angry and many wanted to do their part.
200 recreational boats were offered up by their owners and registered with the Coast Guard Auxiliary on the Gulf Coast from Key West to the Mexican border before Pearl Harbor and nascent flotillas were organized in every U.S. naval district except for Alaska and Puerto Rico. Initially seen as a reserve force where civilian boats and volunteers would supplement active duty Coast Guardsmen in their mission, war and marauding U-boats changed these calculations.
In 1941, Popular Science magazine ran an article discussing this burgeoning new citizen wing of the Coast Guard. It stated, “These yachtsmen, whose knowledge of seamanship, navigation, and gas engines, plus familiarity with local waters and boats, makes a national defense asset immediately convertible to a useful purpose. These men would be greenhorns aboard a battlewagon, but along the lines of their own hobby, many of them are extremely good, and so are their boats.”
After the attack on Pearl Harbor, it was reported that nearly every yacht club along the Gulf and the Atlantic and Pacific Coasts had banded together to form an auxiliary flotilla. From powerboat squadrons to fishing fleets, the exploding ranks of this civilian maritime militia encompassed a true sampling of the boating traditions around the country, from yacht owners in the Northeast, to lobstermen in Maine and shrimpers in the Gulf of Mexico.
Ernest Hemingway and the crew onboard his 38-foot fishing boat, Pilar, were the most famous examples of this citizen force on the Gulf of Mexico. Hemingway “patrolled” for U-boats in the Florida Straits and the Old Bahama Channel from Havana with journalists in tow and armed with grenades, Thompson submachine guns, and Cuban rum. While Hemingway’s actions added to his legacy, the reality is that his anti-submarine efforts climaxed with the sighting of a lone periscope in the distance from Pilar. But he gave a symbolic and romantic face to the thousands of Americans volunteering their time and vessels to defend the coastline of the United States.
Dedicated to new roles in defense of the country, a flotilla of cabin cruisers from Houston patrolled the ship channel within earshot of the 20-inch coastal guns and artillery conducting regular live-fire drills to defend against U-boats from Fort San Jacinto on Galveston Island. In Boston, 60 sailboats and 40 powerboats actively patrolled the coast and harbor. At Cape Fear, North Carolina, the local flotillas toured the area on a 24-hour basis, enduring storms and the blazing heat of summer. Off the coasts of Louisiana and Mississippi, a convoy of 126 shrimp trawlers had crewmembers on constant watch for submarines while continuing to bring in their hauls of Gulf shrimp.
The flotillas became vital in rescuing seamen from torpedoed vessels, freeing up the Navy and Coast Guard to actively hunt their attackers. In one instance, when the Mexican steam tanker Potrero del Llano lay engulfed in flames and rapidly sinking just off the beaches of Miami, hundreds of citizens watching in horror witnessed the local flotilla “drive their little boats right into the flames” to retrieve survivors.
Utilizing shrimp trawlers, fishing vessels, oyster luggers, and all manner of power and sailboats, the Coastal Picket Forces were equipped with military radios and armed when possible by the government. They were crucial to the Coast Guard as submarine spotters, and highly effective rescuing survivors from torpedoed ships throughout the war.
For many of the unpaid volunteers of the auxiliary, their time was spent patrolling inland waterways hunting saboteurs, policing waterways and conducting rescues for run-of-the-mill boating accidents. With these mundane duties filled by the civilian auxiliary, Coast Guard men and resources could focus on the war effort. By 1943, active duty Coast Guard sailors were drilling with troops on Lake Pontchartrain in the Higgins landing craft built in New Orleans. These sailors would be at the helm of each of these craft in the Normandy invasion in Europe and many other invasions as the U.S. island hopped in the Pacific theater.
These new found duties given to civilians to patrol for Uncle Sam didn’t always sit well. Cajun shrimpers in the Rigolets Pass and Barataria Bay initially balked at being boarded by city yachtsmen, which led to uniforms and official Coast Guard numbering painted on the hulls of private boats loaned to the effort.
Roy Alciatore, the proprietor of the legendary old line French Quarter restaurant Antoine’s, loaned his 31’ Chris-Craft Pepper to the auxiliary and he served 24-hours every week patrolling the Violet Canal area onboard Jerry Schoen’s powerboat the Neolita II, rechristened CGA-20M760. When off-duty, he spent his time cooking gumbos for his fellow crewmembers on watch.
In February of 1943, Alciatore and the crews of over 50 boats ranging from cabin cruisers to yachts from the four New Orleans flotillas participated in the largest coordinated auxiliary maneuver of the war in conjunction with Coast Guard vessels and aircraft. Entering Lake Borgne from Bayou Sauvage and Chef Menteur, the objective was to coordinate the civilian fleet in a training operation simulating the heroic actions of British civilian boaters at Dunkirk in 1940.
Of particular use to the Navy and Coast Guard were large offshore-racing schooners and sloops. They were naturally stealthy, fast, and equipped to handle heavier seas. These racing crews were known to patrol over 150 miles offshore and on spotting a U-Boat, they were asked to maintain contact as long as possible, even if this meant their “certain destruction.”
A lifeboat from the Robert E. Lee.
In 1942, Willard Lewis and his auxiliary crew were patrolling the waters off Fort Lauderdale, FL in his 38’ cruiser when he had one of the more noteworthy run-ins with a German U-Boat. Having been directed by the Coast Guard to search for survivors from a torpedoed tanker, Lewis spotted a U-Boat having mechanical issues with its diving fins, forcing it to repeatedly resurface. After radioing in the sub’s position, Lewis stated to his crew that the Coast Guard would never believe that they’d spotted a German submarine. Within minutes, the sub resurfaced directly underneath his cruiser, hobbling his boat and leaving telltale proof – grey paint smudges – on his hull.
Official historic Coast Guard documents state that “time after time, these auxiliarys took their tiny boats out, a few armed with rifles, others with only boat hooks and flashlights, to haul drowning, burned, merchant seamen from the sea.”
These sunken ships and their war dead lay all along America’s East and Gulf coasts from a forgotten front in World War II. They rest quietly on the bottom and serve as thriving homes for corals, fish, and other marine species and as memorials to the merchant marine and the actions of American citizens and their service throughout World War II.
The argument can certainly be made that the Gulf U-boat war was fought primarily by the volunteers of the coastal picket forces, the civil air patrol and the men and women of the merchant marine.
I know it’s been nearly a month since I initiated this series to gaze into the murky depths of Louisiana’s future, but the reason I’ve been remiss in continuing – up till now – centers around physical vision. Cataracts which had been increasingly clouding my vision are now gone, along with my eyeballs’ natural internal (and rather defective) lenses. The new bionic version means – for the first time in 60 years – I don’t have to put glasses on in order to see further than one foot in front of my face.
That defect in sight is known as myopia, although it’s commonly called “nearsightedness.” It’s also an apt analogy for the majority of Louisiana’s elected officials – particularly our lawmakers.
We can be relatively certain of some things: that it will get dark outside after the sun goes down, or that our bed will support us when we lie down on it. Strictly speaking, we are acting on faith, rooted in past experience, when we make these assumptions. There is no absolute guarantee the earth will continue spinning on its axis, and if it does not, there goes sunrise and sunset, along with gravity and that whole lying on the bed thing.
Yet we can reasonably expect those things will continue.
What can we reasonably expect for Louisiana’s future?
Much more of the same bottom-of-the lists rankings, unless we, and the lawmakers we have elected, make a concerted effort to alter our state’s policies, laws, and tax structure in ways that will address the underlying poverty-connected parameters keeping our state rated low and our population struggling with an average annual per capita income of $27,027 (compared to the national average of $33,706).
Benjamin Franklin famously wrote, “In this world nothing can be said to be certain, except death and taxes.” Here in Louisiana, as in many other parts of the nation, there are certain people who do everything possible to remove the certainty of taxation from themselves and their peers. (And why is it so many of those same people are the ones that believe in their heart-of hearts that they have no peer? But, I digress.) In so doing, of course, those individuals and all-too-frequently the corporations from which they derive their income, shift the burden of taxation to everyone else.
That “everyone else” already includes far too many Louisianans that, for one reason or another, struggle daily with being on the lower half of the socio-economic spectrum: 14% of Louisiana families with earnings below the national poverty line of $24,036 for a family of four; 45% of Louisiana’s children living in single parent households; and an overall state population that is nearly one-third African-American.
No small part of all this is the legacy and continuation of institutionalized racism. As Michael Leachman, senior director of state fiscal research with the Center on Budget and Policy Priorities (parent organization for the Louisiana Budget Project) noted in his Martin Luther King Day missive in January, “The wealthiest ten percent of white households own two-thirds of all U.S. wealth,” while “State and local tax policies are partly to blame for sustaining racial disparities in power and wealth, or even for exacerbating them.”
In other words, we the people have elected the people that wrote the laws, rules, and regulations solidifying Louisiana’s bottom-dwelling status in quality-of-life rankings.
Creative Commons photo by IsaacMao via Flickr
It’s not as though we don’t know what needs to be changed, and ways to make the improvements incrementally. There have been study committees and task forces, blue ribbon commissions and detailed reports delineating best practices Louisiana can and should implement. Eighteen years ago, we the people approved a progressive tax scheme, voting into law a constitutional amendment that would gradually grow state income tax revenues based on increasing wages and a realignment of tax rates, while giving some relief from regressive sales taxes. And it was working as intended.
Former state Sen. Buddy Shaw of Shreveport.
Yet when Louisiana’s treasury swelled with the influx of federal hurricane recovery funds, desperately needed in the horrific aftermath of Katrina and Rita, the majority of state lawmakers saw the total dollar amounts on the plus side of Louisiana’s ledgers, and – without asking voters – passed statutes that undid 2002’s Stelly Plan income tax rates. The author of the tax rate rollback, Sen. Buddy Shaw (R-Shreveport), insisted his constituents were complaining about their increased income tax burden, while, in actuality, only those making at least $80,000 per year had seen their overall state taxes increase. Shaw also insisted that, in the wake of the devastation of the 2005 hurricanes, in 2008 everyone deserved this “greatest tax reduction in the history of the state of Louisiana.”
That “greatest tax reduction” cut some $350-million per year from the State General Fund, leading to the fiscal legerdemain (“Now you see it: now you don’t”) of the remainder of the Jindal years. During those two terms, there was a concerted effort to make Louisiana more “business friendly,” by snipping away at corporate taxes here, there, and everywhere. But in Jindal’s first year in office, in 2008, there was another year with back-to-back hurricane hits, a followed by a national recession, and joined by a major downturn in the oil and gas industry. Eight years later, when the Jindal administration’s financial smoke and mirrors cleared away with the arrival of the John Bel Edwards administration, Louisiana had a $2-billion difference between the state revenue supplies and the state spending demands.
Four years and eleven legislative sessions (seven of them “special”) later, we’ve not adjusted the personal or corporate income tax rates – despite all the reports and studies recommending Louisiana do exactly that. Nope, we’ve upped that most regressive of taxation types: sales tax. And who, in paying that higher sales tax, is contributing a bigger proportion of their smaller income toward paying for all the state’s things? That’s right. It’s the same pool of Louisiana residents whose socio-economic status keeps us dragging the bottom of the state-by-state rankings.
But at least the 4.45 cents of state tax on each dollar’s worth of items sold is stable through 2025.
Or is it?
Some of the strictest conservatives among state legislators find themselves deeply offended by the surpluses the state has been realizing at the end of the past couple of fiscal years, and are rumbling about an early rollback. This is a general session year, however, so they won’t be able to take up the debate until the 2021 fiscal session. By then we may be closer to knowing if predictions of an imminent national recession are accurate.
It was all the talk in the last half of 2019, when 72% of economists surveyed by the National Association of Business Economics were predicting that a recession by the end of 2021. In late January, Dr. Richard D. Wolff, an economics professor at the University of Massachusetts, reiterated that prediction. Noting that the U.S. budget deficit is now nearly equal to what existed during the 2008 economic downturn, Dr. Wolff told thehill.com that “We are overdue” for a recession, and this one could be the “recipe for very serious economic problems.”
These predictions have been a topic of discussion during recent meetings of Louisiana’s Revenue Estimating Committee, as members of that panel regularly query the state’s fiscal analysts whether and how they have factored the potential downturn into their forecasts of state income. They have, as a “slowdown” rather than a full recession, since, as Commissioner of Administration Jay Dardenne observed, “Traditionally, any recession hits Louisiana months – even a couple of years – later than the rest of the country.” Indeed, the 2008 recession didn’t reach its maximum depth here until 2010.
And what are the new legislative leaders who sit on the Revenue Estimating Conference doing to prepare for this potentiality?
Louisiana House Speaker Clay Schexnayder (R- Gonzales). Photo courtesy legis.la.gov
Precisely nothing. As of the present time, the new Senate President Page Cortez (R-Lafayette) and the new House Speaker Clay Schexnayder (R-Gonzales) have refused to accept/recognize either of the state’s fiscal experts’ revenue projections, although the House Speaker made up one of his own – with no authorization in law to do so – and offered that as “a compromise.”
Uh, no.
All this is really just wrangling about the short term, however. It’s the equivalent of sitting in a comfy chair in the living room, hiding behind one’s reading glasses and the newspaper, not seeing the smoke billowing out from the food burning in the kitchen.
At present, only two state agency sectors have done any longer-term envisioning of – or planning for – the future. Next up: a look at those plans, what they missed considering, and which agencies could benefit most from creating their own long-range master plans.
