La. House committee votes to kill levee board lawsuit

A Louisiana House committee Wednesday voted to specifically kill the lawsuit filed by a New Orleans-area levee board.

The House Committee on Natural Resources amended Senate Bill 469 to say that the Louisiana Legislature wants this measure to apply retroactively, and that lawmakers oppose the lawsuits filed last year by Southeast Louisiana Flood Protection Authority-East against 97 oil and gas companies claiming environmental damage to the marshes.

The panel then voted 13 to 6 to send the amended legislation to the full Louisiana House.

“We want a statement by the Legislature saying this is retroactively applied,” said Jimmy Faircloth, the Pineville lawyer who was the primary author of SB469 and represents large landowners. He is a former executive counsel for Gov. Bobby Jindal.

Up until the hearing Wednesday, the legislation had been presented as providing a possible avenue for a party to seek dismissal from the lawsuit. It was interpreted by many as subtly targeting the levee board lawsuits. But the wording change removes any need to interpret and flat out says SB469 targets the levee board lawsuits.

Faircloth argued that the Louisiana Supreme Court in 2001 determined that governmental entities do not have the same rights as an individual and therefore the Legislature can pass laws that can reach back to change the rules to alter an agency’s ability to sue after the lawsuit has been filed.

The levee board lawsuits claim that energy companies over the years dug about 10,000 miles of canals through the wetlands, which led to the erosion of the marsh buffer that mitigates the impact of hurricane storm surges on populated areas. By not repairing the environmental damage, the industry failed to follow its obligations in the permits that allowed the companies to do the work in the wetlands, according to some of the allegations.

Jindal and the oil and gas industry oppose the levee board lawsuits.

SB469 would allow only government agencies with a Coastal Zone Management Plan to bring legal claims involving allegations in coastal areas. The Southeast Louisiana Flood Protection Authority-East, called SLFPA-E and pronounced “Slip-Fah,” is not included on a list of agencies allowed to file suit.

The committee voted 12-5 to accept the amendment that would apply SB469 retroactively.

Under the questioning of state Rep. Eddie Lambert, R-Prairieville, Faircloth said the SLFPA-E lawsuit would probably lose in court.

“You say you think the court is going to throw it out,” he said. “So we don’t really need this bill.”

The amendment does nothing more than “knock this lawsuit out,” Lambert said. “We’re voting to kill the lawsuit.”

“No doubt about it,” responded state Sen. Bret Allain, R-Franklin, and sponsor of SB469.

State Rep. Patrick Connick, R-Marrero, asked why the state Department of Natural Resources hasn’t pursued the oil and gas companies on behalf of the state.

“We do not have any evidence that the permits have been violated,” said J. Blake Canfield, a lawyer for DNR, adding that a lot of the canals were dug prior to 1980 when the Coastal Act went into effect, and the state has not looked further back.

Connick also questioned that with all the talk about legal procedures, why the legislation was being heard in the House Natural Resources Committee rather than the House Committee on Civil Law and Procedure. Last week the House overcame arguments that the Natural Resource committee was more naturally amenable to the oil and gas industry and voted to send SB469 there instead of the panel that reviews legislation dealing with civil lawsuits.

Chairman Gordon Dove, R-Houma, said the committee deals with coastal management.

Dove said he sits on the Louisiana Coastal Protection and Restoration Authority and that agency has done much to repair the coast.

“We’ve really done a lot, but (we) can’t make the federal government step up to the plate,” Dove said. “Thanks to CPRA and Gov. Bobby Jindal.”

“This bill is a 110 percent get out of jail free card,” Gladstone N. Jones, a New Orleans lawyer representing SLFPA-E, said of the bill’s impact on the oil and gas industry’s failure to cleanup after itself.

Dove questioned Jones on why SLFPA-E sued only the oil companies and not the lumber interests, federal government and others who might have contributed to coastal erosion.

“It’s a good question,” Dove said.

“Not really,” Jones replied.

Oil and gas industry activity is responsible for 36.7 percent of the coastal loss, according to studies, Jones said.

Dove responded: “Did the oil companies build the levees on the Mississippi River?”

Much of the coastal damage also was caused by levees channeling the soil carried in the Mississippi River off the continental shelf rather than replenishing the wetlands.

Voting FOR amending SB469 to apply retroactively (12): Chairman Dove and state Reps. Robert Billiot, D-Westwego; Stuart J. Bishop, R-Lafayette; Bubba Chaney, R-Rayville; Connick; Ray Garofalo, R-Chalmette; Jerry Gisclair, D-Larose; Johnny Guinn, R-Jennings; Joe Harrison, R-Napoleonville; Sam Jones, D-Franklin; Chris Leopold, R-Belle Chasse; Jim Morris, R-Oil City; and Clay Schexnayder, R-Gonzales.

Voting AGAINST the amendment (5): State Reps. Franklin Foil, R-Baton Rouge; Ted James, D-Baton Rouge; Lambert; Jack Montoucet, D-Crowley; and Stephen J. Ortego, D-Carencro.