The local flood protection authority's lawsuit against 97 oil, gas and pipeline companies lives to die another day. The authority's board voted 4-4 last week on a motion to withdraw the suit. The motion required a majority to pass.
Even though the vote by the Southeast Louisiana Flood Protection Authority-East (SLFPA-E) board kept the lawsuit alive, the litigation's days appear to be numbered. State lawmakers recently passed Senate Bill 469 specifically to kill the lawsuit, and Gov. Bobby Jindal signed it into law.
Moreover, it appears to be only a matter of time before Jindal gets to appoint another lackey to the board, giving him a slim majority of its members — enough to kill the lawsuit.
But killing the lawsuit is only part of the damage that Jindal and his new SLFPA-E appointees seem determined to inflict on the people of southeast Louisiana.
Jindal's signature on SB 469 came after state Attorney General Buddy Caldwell and more than 100 legal scholars advised him to veto it. Caldwell and the scholars' concerns centered not so much on whether the new law would kill the lawsuit (although there are some who suggest it wouldn't for technical reasons) but rather on whether its "overly broad" language might also threaten claims against BP and other polluters. Many also raise constitutional questions about the bill because it applies retroactively.
Despite those concerns, or perhaps because of them, new SLFPA-E board vice chair Joe Hassinger pushed for a vote to withdraw the lawsuit immediately. Hassinger, a lakefront attorney, was appointed to the board by Jindal to replace chief lawsuit supporter (and former SLFPA-E vice chair) John Barry. Hassinger says he wants to pull the plug on the litigation to cap fees and costs the board will owe its attorneys under a "poison pill" provision in its contract with the attorneys.
The board initially hired its attorneys on a contingency-fee basis, giving the lawyers a percentage of any recovery if the lawsuit proved to be successful. If the suit were to fail, the attorneys would get nothing. However, the contract also provided that if the board or any "third parties" were to cause the attorneys to be terminated, fees and costs would be due. As of last week, those fees and costs were estimated to be somewhere between $2.8 million and $11.2 million, which is quite a spread.
That so-called poison pill provision was inserted into the contract in an attempt to prevent lawmakers and Jindal from interfering with the contract or the litigation. The governor and a majority of lawmakers were undeterred. SB 469 retroactively takes away the board's right to sue Big Oil.
As of last week, none of the energy industry defendants had filed motions to dismiss the lawsuit based on the new law. Perhaps they were hoping the new Jindal appointees to the board would handle that for them — and save the energy companies some legal expenses of their own.
Meanwhile, the "independent" nominating committee that coughed up Hassinger and two other anti-lawsuit board members is set to consider sending more names to Jindal. There is some uncertainty as to when two board members' terms actually expire, however, and the committee has asked Caldwell for an opinion. We can only hope and pray that there's not as much uncertainty about the integrity of our new levee system as there is about the politics of selecting SLFPA-E board members.
At some point, either later this year or sometime in 2015, Jindal will have the votes he needs to kill the suit via board action. One can only wonder if the defendants will risk waiting that long.
The only hope for bringing the defendants to the negotiating table appears to be Caldwell. As one of the few state officials still authorized to sue the energy industry, the attorney general could intervene in the suit to keep it alive. He wouldn't be the first Louisiana attorney general to sue Big Oil, but in light of recent political developments, he might be the bravest if he rises to this challenge in time.