Chalk up another small win for a New Orleans-area levee board in its coastal erosion suit targeting scores of oil and gas companies: A state judge in Baton Rouge ruled Friday that a 2014 state law aimed at quashing the case is unconstitutional.
Judge Janice Clark, of the 19th Judicial District Court, already had ruled that the law — intended to retroactively invalidate the suit by the Southeast Louisiana Flood Protection Authority-East — did not actually apply to the case.
Clark expanded that ruling Friday and declared that the law, known as Act 544, violated three separate provisions of the Louisiana Constitution dealing with the separation of powers, the right of governmental entities to sue over coastal damage and requirements for providing public notice before the Legislature passes a bill.
Clark’s ruling came as attorneys for the Flood Protection Authority released some details about a settlement with two small Texas companies in the case. The settlement with White Oak and Chroma, two firms that operated three wells in southeast Louisiana for about six years, netted the authority only about $50,000.
That’s a minuscule amount compared with the billions of dollars of damage the suit accuses the energy industry of causing to the state’s coastal wetlands through drilling and dredging activities.
The actual settlement agreements with the two companies have not been released publicly.
Friday’s ruling by Clark came in response to a lawsuit filed by the Louisiana Oil and Gas Association that sought to invalidate the Flood Protection Authority’s contract with its attorneys last year.
The authority’s suit is in federal court, where Judge Nannette Jolivette Brown is expected to hear arguments in mid-November on whether Act 544 is constitutional and applies to the case.
Therefore, while Friday’s ruling provides a symbolic victory for the Flood Protection Authority, it is far from the final word on the case.
Gladstone Jones, the lead attorney for the authority, said he expects Brown to come to her own conclusions on the validity of the state law. He also expects LOGA to appeal Clark’s ruling.
“We respect the court’s opinion, and I’m sure this will be litigated through the Supreme Court, where we look forward to going as the next step,” Jones said. A state Supreme Court ruling could be binding on the federal courts, he said.
Gov. Bobby Jindal’s administration said Clark was out of line in her ruling, particularly because the case before her — seeking to invalidate the Flood Protection Authority’s contract with its attorneys — was settled before Act 544 was signed into law. Jindal and members of his administration have been fierce opponents of the authority’s lawsuit since it was filed in 2013.
“We disagree with the ruling,” Jindal spokeswoman Shannon Bates said. “It was improper for the court to decide this important issue in an unrelated case — one that was filed months before this law was even passed. The law is constitutional. For these reasons, we expect the ruling to be reversed on appeal.”
Clark’s ruling is based on three constitutional issues with the new law. First, she said, it violates the separation of powers because it represents an attempt by the Legislature to tell the courts how to interpret state law with regard to the status of the Flood Protection Authority and its case.
Second, she found the law violates a constitutional provision that bars state government from preventing other governmental bodies from suing over coastal damages.
Finally, Clark ruled that the Legislature violated provisions about the public notice that must be provided as a bill moves through the legislative process. The bill that would become Act 544 started off this year’s legislative session as a different measure and was completely rewritten before it was approved — a process Clark said was “repugnant” to the constitutional requirements.
She previously had found that the law did not apply to the Flood Protection Authority because it referred to “local governments,” which in state law refers to parishes and municipalities and not to levee authorities, she said.