A federal judge Wednesday heard a second round of arguments over the meaning and constitutionality of a state law meant to kill the controversial lawsuit filed by a local flood-protection board against scores of oil and gas companies for wetlands damage.
Lawyers for the companies have asked U.S. District Judge Nannette Jolivette Brown to dismiss the lawsuit before the trial begins on the grounds that a state law passed in June stripped the Southeast Louisiana Flood Protection Authority-East of its authority to sue the companies.
While the flood board’s attorneys agreed that lawmakers wanted to kill the suit, they pointed to the law’s wording, which says “no state or local government entity” shall have the right to file such a lawsuit. They contend that does not apply to the board because it was created as an “independent political subdivision” of the state and doesn’t fit either definition.
Brown asked attorneys for both sides to explain why it should fall to the federal court to correct what she saw as “clearly a drafting issue” that the Legislature should address.
James Swanson, representing the flood authority, said, “I couldn’t agree more.”
But Keith Jarrett, an attorney representing Shell, disagreed.
“We don’t think there was a drafting issue,” he said, citing statements by lawmakers during debate in which they referred specifically to the flood authority. “Could it have been clearer? Yes. But we think it is clear enough.”
The flood authority also has claimed the law violates the state constitution in two ways: that not enough time was allowed for public comment after it was created by grafting two different bills together, and that it breached the separation of powers by allowing the Legislature to interfere with a pending court action.
The flood authority in October won decisions in state court on both issues.
Jarrett said state law waives additional public comment time in such cases when the two bills are germane. And he pointed to a state Supreme Court ruling favoring a state law that retroactively killed a lawsuit New Orleans brought against gun manufacturers.
Following Wednesday’s arguments, attorneys for both sides said they didn’t expect a ruling before the end of the year — nor a decision by Brown to end the case.
State law allows a ruling on a constitutional issue by a lower state court to be fast-tracked to the state Supreme Court for review, a process that could take three to four months. And federal judges typically defer to a state Supreme Court ruling on its constitution, which could delay Brown’s decision.