A New Orleans-area levee authority is going on the offensive, challenging a new state law intended to kill its lawsuit against oil and gas companies, rather than waiting for those firms to use that legislation to try to have the case thrown out.
Attorneys for the Southeast Louisiana Flood Protection Authority-East filed a motion Tuesday asking a federal judge to declare the measure, which Gov. Bobby Jindal signed into law earlier this year, does not apply to its case against 97 energy companies that allegedly caused massive damage to Louisiana’s coastal wetlands.
Those lawyers and other supporters of the suit have made similar claims in the past, arguing that even though the legislation — known as Act 544 — was specifically designed to target the flood protection authority’s suit, its authors missed their mark.
“Due to the rush and the convolutions of the legislative process, Act 544 did not come out the way the lawsuit’s opponents may have hoped,” according to the memo that the attorneys, led by members of the Jones Swanson law firm, submitted to U.S. District Judge Nannette Jolivette Brown.
The flood protection authority’s motion argues that the bill itself does not actually bar the levee authority’s suit from going forward and that both the procedures used to pass it and its content raise constitutional issues.
A key element of whether Act 544 applies to the flood protection authority centers around the fact that the law bars some “state and local governmental” entities from suing oil and gas companies. However, the motion says, the flood protection authority is not a state agency and state law uses the term “local governmental entity” to refer to parish governments.
“Under Louisiana law, the phrase ‘state or local governmental entity’ does not include regional flood protection authorities or their constituent levee districts,” according to the memo.
The attorneys also argue that the claims made in their case do not fall within the scope of the lawsuits prohibited by the new law.
They further contend that the law amounts to the Legislature violating the separation of powers by applying a legislative interpretation retroactively to an issue that already has been heard by state courts.
Additionally, they say, the law violates a provision of the state constitution that prevents the state from taking away legal claims from governmental entities to deal with coastal restoration. Finally, the motion says, the Legislature did not properly advertise or provide public notice of the bill’s consideration before it was passed.
The authority filed suit against 97 oil and gas companies last summer, charging that they are responsible for significant coastal erosion and damage to wetlands in the New Orleans area. Jindal, the oil and gas industry and many legislators have strongly opposed the suit.
Many observers had expected oil and gas companies would move quickly to have the case dismissed after the new law went into effect in June. That did not occur, though Greg Beuerman, a spokesman for BP, Chevron and Shell, said Tuesday that the move by the flood protection authority was merely an attempt to “circumvent” a motion to have the case thrown out.
“This matter should be briefed at the same time as other threshold legal issues which we anticipate will dispose of this poorly conceived suit entirely,” Beuerman said in an emailed statement.
Even if the flood protection authority’s motion prevails, the fate of the suit remains unclear. It is possible that any decision Brown makes on the issue will be appealed. In addition, Jindal has replaced four of the nine members of the flood protection authority since the suit was filed in an effort to gain a majority of commissioners who will vote to drop the case. One more pro-lawsuit commissioner is up for reappointment or replacement this year.
It’s also not yet clear whether the Attorney General’s Office or the Governor’s Office will defend the law. A spokesman for the Attorney General’s Office said lawyers were still reviewing the latest pleading Tuesday.
Jindal spokeswoman Shannon Bates said the motion was the plaintiff lawyers’ “latest attempt to keep a frivolous lawsuit alive.”
Follow Jeff Adelson on Twitter, @jadelson.