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James Gill: Time has come for settlement on coast damage

The Advocate

June 8, 2014

According to Gov. Bobby Jindal, the purpose of the bill closest to his heart in the legislative session just ended was to “clarify” state law.

It didn’t work. By the time legislators were through, confusion was worse confounded, and Jindal, who had planned to sign the bill at a news conference, was obliged to put his pen back in his pocket temporarily.

In truth, the law was plain enough to start with, but it did not sit well with Jindal and legislators who share his loyalty to Big Oil. They were mad because the Southeast Louisiana Flood Protection Authority-East had sued 97 oil and gas companies for the devastation they inflicted on Louisiana’s coastal wetlands. So a bill was confected to scotch the action.

But what was supposed to be a triumphal news conference at the end of the session turned out to be quite a hoot. This was Louisiana lawmaking at its most inept, for it may have inadvertently blocked local government claims arising from BP’s Deepwater Horizon spill and jeopardized federal aid for coastal restoration. Meanwhile, the Flood Protection Authority’s lawyers say the bill is so sloppily worded that the lawsuit it was designed to kill can go forward.

In the circumstances, it was quite brave of Jindal to cite clarity as his objective. He put off signing the bill, he said, to give Attorney General Buddy Caldwell time to weigh its effects. When Caldwell a day or so later recommended veto, Jindal’s lawyers immediately rejected his reasoning. Our bewilderment was complete.

At his news conference, Jindal had explained, “We’re simply saying this was a frivolous lawsuit filed by an entity that never had the authority and shouldn’t have filed in the first place.”

He was simply talking nonsense. Otherwise, there would have been no need for the bill. Caldwell and a state court had confirmed that the authority, which is supposed to operate free of political interference, was within its rights to file the lawsuit.

Had the suit really been frivolous, oil and gas could have shrugged it off. Instead, they were eager to put the kibosh on it for fear of being found liable, perhaps to the tune of billions. Their permits required them to make up for the damage they caused to Louisiana’s ecosystem and flood defenses, but once they’d grabbed the loot, they disappeared as fast as the coastline.

Maybe the time has come for an amicable settlement with oil and gas. That would not have been feasible had legislators succeeded in removing any threat of protracted and expensive litigation, but the bill was so spectacularly bungled that the outlook is shrouded in uncertainty.

Because every scientific study ever conducted has left no doubt that oil and gas bear a heavy responsibility for the destruction of the marshes, negotiation may be the best option all round. That has long been the view of John Barry, the driving force behind the lawsuit, whom Jindal removed as vice president of the flood authority for his pains.

Oil and gas companies don’t have to be the enemy. If they indicate a willingness to find a fair resolution, Louisiana gets some of its coast back and they get credit for a sense of environmental responsibility. The alternative cannot appeal to them much now that legislators, in their haste to give them immunity, might have sold Louisiana down the river.

Some two dozen law professors wrote an open letter to Jindal urging him to veto the bill because, by prohibiting local government litigation over infractions in the coastal zone, it could enable BP to get out of compensating parishes for their Deepwater Horizon losses. It could also block claims for future spills, the profs wrote.

Changes to coastal management laws also require preapproval by the National Oceanic and Atmospheric Administration, which didn’t happen here. This could allegedly put federal coastal restoration funding at risk, although Jindal denies it.

And just to complete the debacle, lawyers pointed out that the Flood Protection Authority and its constituent levee boards, were not “local government entities” as defined in the law that the bill seeks to amend in order to kill the lawsuit.

There’s so much left to be clarified that both sides must soon figure they’d be better off working together.

James Gill’s email address is jgill@theadvocate.com.