Sponsors say claims against BP not at risk
Though it’s a bill Gov. Bobby Jindal long wanted, the Louisiana attorney general recommended Wednesday that the governor veto the measure that would kill a lawsuit filed against 97 oil and gas companies by a New Orleans-area levee board.
Attorney General Buddy Caldwell said the bill’s language is “vaguely broad” and could undermine environmental damage claims being made by state and local governmental entities for past energy production as well as claims arising from the 2010 Deepwater Horizon explosion and release of 4.9 million barrels of crude oil.
Jindal’s top lawyer disagreed with Caldwell’s warnings, setting up the possibility that the governor could soon sign the measure into law.
Jefferson Parish President John Young agrees with Caldwell, saying he has serious concerns about the effect the measure would have on his parish’s lawsuits against BP over Deepwater Horizon, which took place in federal waters off the coast of his parish.
But this legislation, Senate Bill 469, is aimed at a lawsuit seeking compensation for environmental damage caused to Louisiana’s wetlands over the years by the oil and gas industry.
Almost from the moment the Southeast Louisiana Flood Protection Authority-East filed the lawsuit in July, Jindal has sought a way to undermine and kill the litigation.
SB469 would reach back and change the conditions under which SLFPA-E could sue. The measure passed the Legislature overwhelmingly.
Caldwell wrote Jindal that the bill’s wording carries “the potential for an unintended effect on the state’s, or a local governmental entity’s, claims against BP related to the Deepwater Horizon incident.”
But Jindal’s top legal adviser disagreed, saying the views expressed during a Wednesday morning meeting were “the same as those offered by the opponents of the bill.” Thomas L. Enright Jr., the governor’s executive counsel, wrote Caldwell on Wednesday, “I must respectfully disagree that the proper course of action is to veto the bill.”
The Governor’s Office reaffirmed its support of the legislation, but could not say when Jindal might sign the bill into law. Speculation around the State Capitol is that he will sign it sometime Thursday or Friday.
The language of SB469 clearly prohibits state and local governmental entities from pursuing lawsuits — past, present and future — for causes of action listed in several laws, Caldwell wrote. The only exceptions are those specifically listed.
“No one can currently quantify or identify all of the causes of actions which will be swept away if this bill becomes law,” Caldwell wrote, adding that the language of the legislation is “vaguely broad” and deals with the elimination of rights. “I recommend that it be vetoed.”
He suggested that supporters take another crack at it and next year write a bill that is more narrowly focused.
Enright responded: “This piece of legislation was fully debated, was the subject of intense media coverage throughout the session and now represents the Louisiana Legislature’s intent to make absolutely clear that irresponsible lawsuits, such as the one filed by SLFPA-E, are unwelcome to this state.”
SLFPA-E filed a lawsuit last year claiming 97 companies failed to abide by their permits in digging then abandoning about 10,000 miles of canals through marshes. That damage contributed to saltwater intrusion that killed vegetation, causing the erosion of wetlands that had served as a buffer against the full impact of hurricane storm surges, the lawsuit alleges.
Jindal and the energy industry criticized the lawsuit, and sidetracking it was one of the main themes of the legislative session that ended Monday.
SB469 would allow government agencies under the Coastal Resources Management Act to bring legal claims involving allegations about permits in coastal areas. Those agencies would be the state, the secretary of the Department of Natural Resources, the attorney general, parish governments with coastal management plans and the local district attorneys for parishes without a plan.
The legislation would not affect similar lawsuits that have been filed by the governments of Jefferson and Plaquemines parishes, said State Sen. Bret Allain II, R-Franklin and co-sponsor of SB469. It also would not stop other local governments from filing lawsuits, nor would it affect lawsuits filed against BP over the Deepwater Horizon incident, he said.
Loyola University law professor Robert Verchick, one of about two dozen legal experts who raised concerns about the bill’s effect on the BP claims, said the Governor’s Office should carefully consider the concerns raised.
“There is time to think and deliberate about this,” Verchick said Tuesday, adding that signing the bill would amount to gambling with the future of those claims.
“It would be a foolish bet,” said Verchick, a former deputy associate administrator for policy at the U.S. Environmental Protection Agency. “There are $10 billion in claims on the roulette table, and I would not leave them there if I were the governor.”
Attorneys representing at least some of the parishes suing BP also have raised concerns, Young said. Earlier in the week, Young had said attorneys did not see reason to worry about SB469’s effects on the parish lawsuits against BP, but he said that since then, new concerns about unintended consequences were raised by the attorneys representing local governments in that litigation.
“Based upon the issues raised by the law professors, additional concerns were voiced by the attorneys representing various parishes in the BP oil litigation as to what effect this bill may have on the BP claims,” Young said. “These concerns were communicated to the Attorney General’s Office and to the Governor’s Office.”
Young said he had not received a response to those concerns, which were forwarded Wednesday.
It’s unclear whether the involvement of the parish governments, which could be directly affected if BP seeks to dismiss their lawsuits after the bill is signed, would sway the governor. The parishes fared better in having their concerns heard during the session than did the levee authority and its allies.
Young spearheaded successful efforts to ensure the language in SB469 did not also halt the lawsuits brought by Jefferson and Plaquemines parishes against oil companies for environmental damage within their borders. Those suits are distinct from both the levee authority’s suit and the claims against BP for damage from the Deepwater Horizon disaster.
Steve Herman, one of the two lead counsels on the suits against BP, said he did not believe the bill would affect any of those claims because the Deepwater Horizon site was outside the area covered by the bill. Herman and his co-counsel are charged with overseeing the hundreds of suits against the company and shepherding them through the legal process, though the plaintiffs — such as Jefferson Parish — each have their own attorneys specifically dedicated to their cases as well.
State Rep. Pat Connick, R-Marrero, urged Jindal to ensure BP would not try to use the bill in the cases pending against the company, or else veto the legislation and ask legislators to pass a more carefully tailored bill during a special session or during next year’s regular session.
“Unless the state gets a commitment from BP that they will not attempt to use SB469 to retroactively be absolved from the damages they caused to Louisiana, I think it would be in the state’s best interest if the governor vetoes the legislation,” Connick said.
Connick, who voted against SB469, said the bill had not been vetted properly as it moved through the Legislature. “The unintended consequences that could result from this bill are mind-boggling,” he said.
On the Senate floor last week, passages were read from the bill, and Allain said repeatedly that there is no legislative intent to disrupt the rights of local and parish governments, as well as those suing BP. The purpose of the measure, he said, was to detail the duties of SLFPA-E, one of which did not include filing lawsuits for the failure of oil companies to abide by permits issued by state and local governments. He said the intent of the wording was not to disrupt any rights by parish and local governments or by anyone with a cause of action against BP.
State Sen. Robert Adley, R-Benton and co-sponsor of SB469, said Caldwell watched the debate throughout and was aware of the various wording alternatives, yet did not venture an opinion either publicly or privately about the legislation.
“Not a single word. To come out and play these politics at the end of the game, when it’s over, for lack of a better word, it’s shameful,” Adley said. “If he felt as he feels now, clearly he should have said something. He didn’t.”
Stephen Waguespack, head of the Louisiana Association of Business and Industry, said, “None of those concerns were raised at any point up until the time the session adjourned. If those concerns were valid, where have they been?”
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