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Jindal signs bill killing levee lawsuit

June 6, 2014

The Advertiser

BATON ROUGE – Gov. Bobby Jindal Friday signed into law legislation retroactively blocking a levee authority lawsuit and limiting the type of lawsuits that can be filed.

He dismissed warnings from 79 law school professors that the bill could interfere with state and local government claims related to the British Petroleum disaster in the Gulf of Mexico.

In signing Senate Bill 469, Jindal said “This bill will help stop frivolous lawsuits and create a more fair and predictable legal environment, and I am proud to sign it into law. It further improves Louisiana’s legal environment by reducing unnecessary claims that burden businesses so that we can bring even more jobs to our state.

“The bill will also send future recovered dollars from CZMA (Coastal Zone Management Act) litigation to coastal projects, allowing us to ensure Louisiana coastal lands are preserved and that our communities are protected,” he said.

His action was applauded by leading representatives of the oil industry, which participated in drafting the legislation and lobbied for it.

The Southeast Louisiana Flood Protection Authority – East, a constitutionally created body charged with protecting five parishes in the New Orleans area, filed suit against 97 oil, gas and pipeline companies for damaging coastal wetlands with miles of canals dredged through marshlands that served as a storm barrier. Much of the land has washed away.

Attorney General James “Buddy” Caldwell on June 3 recommended to Jindal that he should veto the bill because the bill contains “very broad and all-encompassing language” that could impact state and local government claims against BP. He suggested that the Legislature could restructure the bill next year to erase those concerns and cancel the lawsuit without endangering BP claims.

A seven-page legal assessment of the legislation cautioning Jindal not to sign SB469 because it could have “adverse consequences” was assembled by Loyola Law School Robert Verchick and received the endorsement of legal scholars from California to Maryland.

In his letter to Jindal, Caldwell stated “No one can currently quantify or identify all of the causes of actions which will be swept away if this bill becomes law. However, the language in the bill clearly deletes all causes of action arising out of activities subject to permitting or uses that significantly impact coastal waters.”

Jindal’s executive counsel, Thomas Enright, said in a June 4 letter that he rejected the attorney general’s argument (which was based on Caldwell’s and the professors’ assessments) because it lacked “specificity that the bill does in fact have unintended consequences.”

Jindal’s decision to sign the bill was influenced by a “legal memo” from Enright, who maintains that even if there is a conflict, federal law would trump state legislation.

The memo states, in part, “It is both black-letter law and conventional wisdom that the Supremacy Clause of the U.S. Constitution mandates that federal law preempts state law when in conflict. … The OPA (Oil Protection Act), in its very first substantive section, begins with the unmistakably clear language:

“‘Notwithstanding any other provision or rule of law and subject to the provisions of this Act, each responsible party…is liable for the removal costs and damages specified [in the Act] that result [from a discharge of oil] into or upon the navigable waters or adjoining shorelines…,'” Enright’s memo says.

Jindal’s signing the bill was praised in the governor’s office news release by the bill’s authors, Sens. Bret Allain, R-Franklin, and Robert Adley, R-Benton, and by Louisiana Oil and Gas Association President Don Briggs.

Louisiana Association of Business and Industry President Stephen Waguespack, Jindal’s former chief of staff, sent a separate congratulatory statement. Chris John, president of the Louisiana MidContinent Oil and Gas Association, sent Jindal a statement similar to Enright’s memo.

Allain said, “As a senator and life-long resident of a coastal parish, there is no one who is more concerned about protecting the state I love. The fact is the Louisiana Legislature sees the suit for what it is, a frivolous lawsuit that hurts jobs, and we have voiced our support for SB 469 to end this frivolous lawsuit. I am proud that the governor is signing this legislation.”

Adley said “This bill keeps a rogue agency from misrepresenting this state and trying to raise money through illegal actions. This lawsuit was never about repairing the coast; it was about enriching lawyers and certain individuals. I applaud the governor for signing the bill and standing up for Louisiana and its people.”

Briggs said “The signing of SB 469 is a huge victory for the oil and gas industry as well as the economy for the state of Louisiana. We commend Governor Jindal for his leadership and support of this bill as it made its way through the process.

“The governor understands the importance of keeping the hardworking men and women of our state employed with good paying jobs. While there is still much work to be done, this piece of legislation is a big step in the right direction,” Briggs said.

John called the law professors’ memorandum “gamesmanship” trying to preserve the lawsuit but its arguments were “fundamentally flawed” because the Oil Protection Act would take precedence over state law.

Waguespack said “This law will help restore order and coordination to Louisiana’s approach on how best to tackle our coastal challenge. Working collaboratively with the Coastal Protection and Restoration Authority and coastal communities to prioritize and implement our state plan is much more effective than vigilante justice-style lawsuits that try to divide and conquer our stakeholders for the benefit of a chosen few.

“Throughout the Legislative process, the attorneys pushing the lawsuit made it clear that they would stop at nothing to protect their contract – and we will continue to see those promised tactics play out in the media and court system in the days and weeks to come,” Waguespack said.

Opponents of the bill criticized the governor’s action.

Steve Murchie, campaign director for the Gulf Restoration Network, said “This legislation is governance at its worst: poorly written, for the worst of reasons, with no public benefit, and having potentially staggering unintended consequences. Governor Jindal, in his zeal to please the oil and gas industry and further his political ambitions, has abandoned the hundreds of thousands of Louisianans facing another hurricane season with inadequate storm protection and a disappearing coast.”

Murchie said “Everyone involved in the passage of this bill owns the consequences, but no one is more responsible for shielding the oil and gas industry from accountability than Governor Jindal. He has undermined the efforts of everyone working to restore coastal Louisiana.

“Not only has he refused to ask the oil and gas industry to live up to their legal obligations, or contribute to coastal restoration in any meaningful way, he has actively blocked others from simply enforcing the law,” the head of the coastal environment group said. “The result is that Louisiana taxpayers will pay for the oil and gas industry’s damage to our coast, if we can afford restoration at all.”

Opponents of the legislation also argue that refusing to pursue a method of funding restoration from an industry that at least is partially responsible for the damage to the coast could cause problems for Louisiana seeking federal restoration funds.

Verchick said that because of BP’s involvement, including heavy lobbying and Karl Connor, senior director of government and public affairs submitting a card supporting the bill in committee, “a fact strongly suggesting that the now known consequences of SB469 were not unintended at all.”