The Louisiana House on Thursday rejected the lawsuit filed against 97 oil and gas companies by a New Orleans levee board by approving legislation that would retroactively kill the litigation, which claims the companies caused environmental damage to the state’s wetlands.
The House voted 59 to 39 for Senate Bill 469, which would reach back and change the conditions under which the Southeast Louisiana Flood Protection Authority-East, called SLFPA-E, could sue.
SB469 now returns to the state Senate for consideration of amendments added in House committee. The key House addition was language that says the Legislature specifically opposes the SLFPA-E lawsuit and approves the rules change that would negate the litigation currently pending in court.
State Sen. Bret Allain II, R-Franklin, chief sponsor of SB469, said he will push his colleagues in the upper chamber to accept the language and approve sending the measure to Gov. Bobby Jindal before the weekend is out.
Environmental activists, though a bit depressed by an industry victory in the House, nevertheless said after the House vote that the retroactivity clause is their best hope for defeating the bill at its legislative stop in the Senate.
Twenty-four senators went on record backing the bill May 7. But 18 senators disapproved of giving the legislation the ability to reach back and kill a pending lawsuit. That’s only two shy of what’s needed to win in the state Senate.
“We still have a chance,” said Steve Murchie, campaign director of the New Orleans-based Gulf Restoration Network. “It was clearly pointed out that this was retroactive. ... That is the issue that disturbs a lot of legislators.”
The SLFPA-E lawsuit claims the 97 companies failed to abide by their permits in digging, then abandoning about 10,000 miles of canals through the 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 as well as the oil and gas industry opposed the lawsuit, and about 18 bills were filed during the 2014 session to clip the wings of this litigation and similar lawsuits. But the SLFPA-E lawsuit was the one most targeted by the industry and the Jindal administration.
SB469 is the last measure that would kill the lawsuit. The rest have been sidelined.
State Rep. Joel Robideaux, R-Lafayette, handled SB469 on the House floor. Earlier in the session, he had handled legislation that attempted to sidetrack a number of lawsuits seeking to make oil and gas companies clean up after themselves.
Robideaux said he didn’t consider the bill to be retroactive because the levee board never had the authority to file its suit. The measure simply would strengthen the meaning of existing law to the point that when presented to a judge, the court would find that the SLFPA-E lawsuit would no longer be able to move forward, he said.
“We don’t typically clarify the law that would cut off a lawsuit that has already been filed,” said Rep. John Bel Edwards, D-Amite, adding that a state district judge has ruled already that public agencies under the law that organized SLFPA-E do have the authority to file some lawsuits.
SB469 effectively immunizes the oil and gas industry from bearing any responsibility for the environmental damage caused over the decades, Edwards said, asking his colleagues, “Who runs this place?”
It appears that the industry felt it safer to attack the litigation in the Legislature rather than take its chances in the courts, Edwards added.
“I would not say they came running to the Legislature,” Robideaux said.
But the oil and gas industry did argue that the law forbids agencies like levee boards from filing the type of legal action SLFPA-E levied against the 97 companies. The companies received permits to seek and produce oil and gas in the state’s wetlands, and legal challenges against them therefore should fall under the Coastal Zone Management Act, which details how such litigation should unfold, Robideaux argued.
“They shouldn’t have been filing suit in the first place,” he said.
“This is an actual pending suit,” said Rep. Eddie Lambert, R-Prairieville, “What you’re asking us to do is go in and kill the lawsuit.”
Robideaux replied, “That is what this bill is trying to accomplish.”
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.
SLFPA-E is not on that list.
The legislation would not impact similar lawsuits that have been filed by the governments of Jefferson and Plaquemines parishes. It also would not stop other local governments from filing lawsuits.
“We will assess where we are, consult with our client and make some decisions,” Gladstone Jones, a New Orleans lawyer on the team representing SLFPA-E, said in a prepared statement after the vote. “Oil may think it has bought itself immunity at the Legislature, but we believe the courts will have the last say.”