The axiom says, if the law is against you, argue the facts, and if the facts are against you, argue the law.
If the facts and the law are both against you, are you up the creek? Not in Louisiana, if you have some weight to throw around. The facts can’t be changed, but the law sure can be, as the oil and gas companies that laid waste to our wetlands are fixing to demonstrate in the upcoming legislative session.
This may be how democracy works, but it should not be confused with the public interest. John Barry, prime mover behind the lawsuit that various bills now seek to squelch, says polls show a huge majority wants the oil and gas industry to answer for its environmental crimes, potentially to the tune of billions. Every penny is needed to mitigate erosion and restore flood defenses.
Barry, though Gov. Bobby Jindal kicked him off the New Orleans levee authority for his temerity in challenging Baton Rouge’s most open-handed campaign contributors, continues to lobby for the lawsuit to run its course. Leading the other side is Sen. Robert Adley, R-Benton, a veteran oilman himself who has received more than $150,000 from his industry pals.
That it should come to this is a negation of all the principles underpinning the post-Katrina reforms. Out with the clueless and corrupt levee boards, and in with tech-savvy and independent authorities was the watchword. After all we had been through, nobody doubted that it would be folly to leave flood control to mealy-mouthed and self-serving politicians.
Well, nobody but the mealy-mouthed and self-serving politicians themselves. If their attempt to reassert themselves succeeds, not only will the oil and gas companies be off the hook, but the levee authorities will become the governor’s vassals. Perhaps we should all move to higher ground.
In order to sue the 97 oil companies blamed for carving up the marshes with their canals, Barry’s levee authority, not having enough liquid assets to pay fat hourly fees, was obliged to hire a law firm on contingency. Jindal and his oil industry benefactors howled, with wearisome predictability, that it was all a scheme to enrich evil trial attorneys. Those attorneys stand to cop as much as 40 percent of any damages, but taxpayers might find that arrangement preferable to not seeking damages at all.
Right now Jindal must choose one of two candidates for the levee authorities nominated by a committee outside his control. So Adley has filed a bill requiring the committee to forward three names, all of which Jindal could reject. And so on until everyone gets fed up and the job goes to a proven lackey.
Another Adley bill would retroactively forbid the levee authorities to seek damages in connection with “the lawful activities of an oil and gas permittee.”
The levee authority suit alleges that the oil and gas companies did indeed break the law by failing to repair the harm they did to wetlands, but Adley consistently begs that question. He was at it again the other day. “The damage here,” he said, “is that, if Louisiana lets rogue committees like this file suit against people who didn’t violate the law, you are never going to have any business here, period.”
The question of whether the companies violated the law is best left to the courts, a prospect that evidently horrifies Adley. That’s why he invokes the imaginary threat that businesses will desert us if we dare to stand up for ourselves.
Yet another Adley bill, also retroactive, would forbid levee authorities to hire outside counsel without the permission of the governor, who would also be required to approve all legal fees.
Adley claims his intent is merely to “clarify” the law, so do not doubt that the mealy-mouthed are on the rampage. He is out to scrap a law that is plenty clear. It allows levee authorities to hire outside counsel to handle lawsuits. Attorney General Buddy Caldwell has vouched for that.
Independent scientific studies leave no doubt that the oil and gas companies bear much of the blame for wetlands loss, as many within the industry concede. If the lawsuit is allowed to proceed, a settlement might be the likeliest outcome, given that the levee authority would be a heavy favorite to prevail at trial.
The best evidence of that is Adley’s flurry of bills.
James Gill’s email is jgill @theadvocate.com.