Political Horizons: Industry aims a smart bomb at lawsuits

The energy industry and its allies made headway last week in their shock and awe campaign to subdue — in the Legislature rather than the courts — lawsuits to force them to clean up after themselves.

Finding that carpet-bombing all environmental litigation wasn’t working as quickly as hoped, a smart bomb was targeted Thursday at taking out the most hated of the legal actions: the lawsuit filed by Southeast Louisiana Flood Protection Authority-East against 97 oil and gas companies.

On Tuesday, activists from the New Orleans area and from the environmental community geared up to oppose one of the many pro-energy industry bills winding its way through the 2014 legislative session.

Senate Bill 531 was to be heard in the Senate Committee on Judiciary A, whose chairman is state Sen. Ben Nevers, D-Bogalusa. State Sen. Bret Allain II, R-Franklin, withdrew his bill and began marathon negotiations behind closed doors that culminated Wednesday night with language that could be swapped out with another pending measure.

The rules require that the bill to which the new language would be attached be on a similar topic. The politics require the newly crafted bill to be heard in a friendlier committee.

That vehicle turned out to be Senate Bill 469, one of a dozen or so measures attacking environmental lawsuits sponsored by state Sen. Robert Adley, R-Benton. SB469 was scheduled to be heard Thursday before the Senate Committee on Natural Resources, whose members rarely disappoint the oil and gas industry.

Allain and Adley gathered behind closed doors with representatives of the oil industry, parish governments and the Governor’s Office to hammer out the language.

Allain is a big landowner who leases his property to energy companies that drill and produce oil and natural gas. He fears that if litigation is allowed pell mell against the industry, eventually landowners could get sued.

Throughout the negotiations, Allain repeatedly said he did not want his new bill to impact, in any way, coastal cleanup lawsuits filed by parish governments against energy companies.

Unlike Southeast Louisiana Flood Protection Authority-East, called SLFPA-E and pronounced “Slip-Ah,” the parish governments are manned by seasoned and powerful elected officials with followings who also vote for legislators.

SLFPA-E is one of the levee boards created in the wake of the 2005 hurricanes whose commissioners are, in the words of one lawyer, scientists and engineers who are political neophytes. SLFPA-E commissioners claimed in a lawsuit the unrepaired damage caused by the oil and gas companies contributed to eroding the marshes that helped weaken immunity to hurricane storm surges.

Gov. Bobby Jindal opposes the litigation, and the industry is waging war in the Legislature.

Bills that go after how lawyers are hired and how they are paid are having only modest success. A measure that would increase gubernatorial power over the levee boards has progressed but is facing stiffer opposition.

But efforts to sidetrack the lawsuits filed — and contemplated — by parish governments ran into a buzzsaw of opposition that threatens to slow progress on the other anti-litigation legislation.

Adley, by the way, disagrees with that interpretation, arguing that several of the package’s bills have passed the Senate and are waiting — going on three weeks now — to be scheduled for House committee hearings.

The new language of SB469 was vetted and accepted by the Governor’s Office, officials representing the parishes and oil and gas industry executives — basically all parties except SLFPA-E.

Essentially, the technical wording says only governmental entities operating under the Coastal Zone Management Act can sue on issues involving permits in the coastal zone. That’s the state Department of Natural Resources, the state attorney general, governments of parishes with coastal plans and the district attorneys for those parishes without a plan. In other words, not SLFPA-E.

Using broad strokes on a painting of legalistic pointillism, parishes argue that the law allows litigation against a company’s failure to get the permits when they should have or violated the permits they got, while the industry counters that local governments have no right to sue for activities covered by state-issued licenses. “There are some really good defenses that are asserted. There are great policy arguments on both sides,” said Jimmy Faircloth, the Pineville lawyer who drafted Allain’s amendments.

But, he added, the levee boards are not under the Coastal Zone Management Act, so those lawsuits, while well-intentioned, are “weak, weak on the law.”

Mark Ballard is editor of The Advocate Capitol news bureau. His email address is mballard@theadvocate.com