Oil and gas interests, government, and legal scholarship

Over on Jotwell, Ezra Rosser recently gave a glowing review to Oliver Houck's recent article, "The Reckoning: Oil and Gas Development in the Louisiana Coastal Zone", writing that it "is easily one of the best articles that I have read in the last ten years and should be required reading regardless of one’s specialty". There's no abstract for the article, but I'll quote at length from the review, which not only outlines the environmental-legal-historical argument, but also has some valuable thoughts on legal scholarship:

Sam Kittner, State Capitol of La. and Exxon Explosion, December 24, 1989 (LOC)

Professor Houck convincingly argues that the state government and oil and gas interests are seen as essentially the same, so much so that Houck refers to them collectively simply as “the company.” Louisiana actively courted oil and natural gas development to such an extent that the very state entities tasked with protecting the coastal zone participated in the promotion of development above all else, even above reason. As the article shows, it would be inaccurate to say that the state became the puppet of corporate interests or that it rubber-stamped the web of canals that destroyed the wetlands because nearly every Louisiana institution was and is invested in the rush to please big energy. Problematically, the list of those involved in opening up the wetlands, in denying the connection between development and destruction, and in attempting to shift the restoration costs away from oil and gas companies and unto the American taxpayer includes not only the ironically named Louisiana Department of Natural Resources, which time and again saw itself as an industry partner, but also parish governments, state-university academics and centers, politicians at the federal, state, and local levels, and even major environmental groups. As Professor Houck shows, no part of the Louisiana coast has been spared from devastation caused by “the company,” yet “the company” is unwilling to take responsibility and has largely succeeded in avoiding the costs associated with such destruction.

Tamara Lotner Lev, a doctoral student writing (under my supervision) on environmental regulation of offshore oil and gas drilling, has come to a similar conclusion about the role of Israeli regulators, calling it "reverse capture".

Rosser also sees Houck's article as a model piece of scholarship:

The article tells a remarkable and painful story and it does so in a way that is itself unflinching and remarkable. Professor Houck ends his 112 page article by noting that the work of parsing through the legal arguments in the Levee Board’s case against the oil and gas industries was the work of another article. The Reckoning is entirely dedicated to providing a rich and well-crafted history of the relationship between oil and gas companies, the state of Louisiana, and the coastal environment. And that singular focus is part of why this is a tremendous contribution. Many, and I would argue too many, articles consist of a small dose of observation and a large dose of theory or interpretation. Indeed, I remember vividly being admonished as a pre-tenured professor that my article about immigrant remittances was not sexy enough because I hadn’t dressed it up in theory. It was a mistake I corrected on a future property law article that I thought would be treated as my last article for tenure. But while the push for theory and for interpretation in the legal academy has its place, I think Professor Houck’s careful and thoroughly researched history will do far more to begin correcting course in Louisiana and holding the contributors to the problems there to account than will the many interpretive articles sure to follow. They will surely build off of and cite to The Reckoning but Professor Houck’s narrative of how “the company” operates in Louisiana is incredibly compelling and damning in its own right. The article will likely be widely read by environmental law professors but it is well worth reading regardless of one’s specialty.

Rosser's point about scholarship is similar to one recently made by Dan Farber at Legal Planet, where he argued that

A simple rule of thumb is that an area of law is best accepted and most prestigious to the extent that it (a) does not involve a high level of legal detail, so the legal issues posed are quite general, and (b) does not require deep understanding of either policy issues or the real world. Fields like Con. Law that are defined in those terms are perfect for very smart people with JDs. It’s not surprising that law reviews publish heavily in those areas (being edited by very smart people who are about to get JDs) or that the faculty in the very top law schools are weighted in favor of Con. Law and related fields. These areas have often tended to occupy the legal elite as well, being fodder for Big Law and for federal appellate judges. So there was a very nice fit between this paradigm, the qualifications that were important in the legal academy, and the role of major law schools as feeders for big law firms and appellate clerkships.

For more on the legal history of the oil industry, see here, here, and here.