The Legislature’s Godzilla


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In a New York Times op-ed published late last month about Senate Bill 469, retired Lt. General Russel Honore wrote, “The oil and gas industries and pipeline companies aren’t responsible for all of Louisiana’s coastal loss. Nobody claims that they are. It’s important, though, that the industry be held to account for the damage it has done.”

Gov. Bobby Jindal clearly disagrees with Honore. Jindal, who was absent from much of the recently concluded 2014 legislative session in Baton Rouge, staunchly supported SB 469. The bill’s aim is clear: it’s designed to kill a Southeast Louisiana Flood Protection Authority-East (SLFPA-E) lawsuit against 97 oil, gas and pipeline companies whose energy-related activities in southeast Louisiana have contributed to coastal land loss, an increased risk of hurricane-related flooding and higher costs of flood protection.

Jindal was all set to sign SB 469 into law at a June 2 press conference. Then, in a move that surprised both sides, the governor instead postponed his signature at the request of Louisiana Attorney General Buddy Caldwell, who asked for time to review the bill.

Caldwell was right to ask the governor to delay signing the measure. Shortly after SB 469 passed, a group of legal scholars opined that its retroactive provisions could actually undercut dozens — possibly hundreds — of pending lawsuits brought by parishes and state agencies against oil giant BP for damages related to the 2010 Deepwater Horizon disaster. (As of the evening of June 5, more than 80 scholars had signed the legal opinion.) The experts, along with a growing number of local officials, say SB 469 is so overly broad that it could scuttle countless other legal claims that have nothing to do with the SLFPA-E lawsuit.

It’s now apparent that backers of SB 469 were so hell-bent to kill the SLFPA-E lawsuit that they failed to narrowly tailor the measure to accomplish its stated aim — and only its stated aim. The original bill to gut the levee authority’s lawsuit was SB 531 by state Sen. Bret Allain, R-Franklin, but that bill was stuck in the Senate Judiciary A Committee. Instead of conceding defeat, Allain conspired with energy lobbyists to graft his bill’s provisions onto SB 469 by Sen. Robert Adley, R-Benton, another legislative opponent of the SLFPA-E lawsuit. Conveniently, Adley’s SB 469 was before the oil-friendly Senate Natural Resources Committee. Literally overnight, Adley’s bill became Allain’s bill, and committee members happily blessed the ruse.

But in their mad dash to protect the energy industry from the SLFPA-E lawsuit, backers of SB 469 created the legislative equivalent of Godzilla — a bill that, if it becomes law, could take on a life of its own and destroy much more than its creators intended. Moreover, SLFPA-E lawyers claim the measure is so inartfully worded that its reference to “local government entities” and “levee boards” may actually exclude the SLFPA-E lawsuit from its prohibitory provisions. (The suit was brought by three area levee districts, each of which is a state agency, not a local entity.) Wouldn’t that be sweet irony.

Caldwell on June 3 advised Jindal to veto SB 469, though he did not go into great legal detail. Caldwell’s one-page letter cites concerns about undercutting claims against BP and goes on to note that the bill “may have other potential serious unintended consequences.” The AG also noted “very broad and all-encompassing language” in SB 469 and concluded, “No one can currently quantify or identify all of the causes of actions which will be swept away if this bill becomes law.”

Caldwell is right, but Jindal seems determined to ignore the advice of Louisiana’s highest-ranking legal officer. Instead, he prefers that of his own executive counsel, Thomas Enright Jr., who countered that Caldwell’s letter lacked “specificity” — but offered no legal arguments of his own. Instead, Enright claimed merely that SB 469 “was fully debated” by lawmakers and received widespread media attention, as if that somehow cured the bill of its obvious flaws.

All responsible parties — including energy companies — admit that oil and gas activity has contributed to the degradation of Louisiana’s coastal lands. The question is whether they are liable for money damages and, if so, how much? These are issues that a court, not state lawmakers, should decide.

The stakes could not be higher. If Jindal signs SB 469 and the new law lets BP off the hook, Louisiana will suffer irreparable harm — and Jindal will go down in infamy as the worst governor Louisiana has ever had. That is one risk that our notoriously risk-averse governor should avoid at all costs.


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