A Baton Rouge judge ruled Monday that a new state law does not prevent a New Orleans-area levee board from bringing a suit against oil and gas companies for damaging the state’s coastline, though it remains unclear what effect that decision will have.
Judge Janice Clark, of the 19th Judicial District Court, also said she would soon consider the constitutionality of Act 544 — a law passed this year to try to retroactively end the suit filed by the Southeast Louisiana Flood Protection Authority-East — and hinted that she found at least some of the arguments against the law persuasive.
Clark’s ruling, which came in a case that does not involve the merits of the lawsuit itself, represents at least a moral victory for the authority, which has been fighting to keep its suit alive for more than a year despite strong opposition from Gov. Bobby Jindal and most state legislators.
It remains to be seen whether U.S. District Judge Nannette Jolivette Brown, who is presiding over the lawsuit itself, will come to the same conclusions when she considers nearly identical challenges in November.
Clark’s ruling is also likely to be appealed.
The case before Clark is distinct from the lawsuit itself, which accuses oil and gas companies of causing billions of dollars in damage to the state’s coastal marshes through decades of drilling, canal-building and dredging. The destruction of those wetlands, which serve as a buffer to storm surge during tropical storms, has led to more catastrophic storm surges and a higher cost for flood protection in the New Orleans area, according to the suit.
No one, including the attorneys for the Flood Protection Authority, disputes that legislators intended to kill the lawsuit when they passed the law that would become Act 544. But the authority has maintained that the law was poorly drafted and therefore does not actually apply to the authority or the case it brought against the energy industry.
That argument hinges on the law’s references to “state or local governmental entities,” terms defined in state law as referring to either state agencies or parish and municipal governments.
In a ruling from the bench, Clark agreed with the levee authority’s attorneys that the language did not, as legislators intended, encompass the authority.
“It appears to this court that (the Flood Protection Authority) was designed to be a unique entity, neither fish nor fowl,” Clark said. “It’s an entity with its own particular powers, infused with powers parishes typically don’t have.”
Lori Mince, an attorney for the authority, had asked Clark either to rule that Act 544 did not apply to the authority or else declare the law unconstitutional. It seems Clark could be poised to do both.
After making her ruling, Clark suggested she found at least two of the authority’s four challenges to the constitutionality of Act 544 persuasive, though she discussed only one in court: the potential issues the law raises about the separation of powers.
Mince argued that by trying to end a case that was already in the hands of the federal courts, Act 544 usurped the power of the judiciary.
The issue, Clark suggested, is “who has the power to determine if suits at law go forward.”
The authority’s attorneys have made several other arguments that the law is not constitutional.
The bill that eventually became Act 544 started out as an entirely different measure aimed at killing the suit, and the authority’s attorneys have argued that rewriting a bill that was already part of the way through the legislative process was illegal.
They also argue that legislators were constitutionally required to provide more public notice about the bill than they did and that the law violates a constitutional provision, known as the public trust doctrine, that prohibits the state from preventing governmental entities from pursuing certain legal claims.
Monday’s hearing stemmed from a months-old case in which the Louisiana Oil and Gas Association sued state Attorney General Buddy Caldwell. LOGA’s attorneys argued that Caldwell’s office is required by law to represent the Flood Protection Authority in all legal matters and that it improperly approved the authority’s resolution hiring outside counsel to handle the coastal erosion suit.
Clark earlier dismissed those claims, calling them “frivolous,” but a final judgment, necessary for LOGA to appeal the case, was never filed. The Flood Protection Authority’s attorneys, who had intervened in that case, then used the ongoing suit as a basis to challenge Act 544.
Representatives of the Attorney General’s Office said Monday that they were still considering the issue of the law’s constitutionality. It is not clear whether the office will seek to defend the law.
Attorneys on both sides of the case will have until Friday to file briefs on the constitutionality of the measure, and Clark’s ruling is expected sometime after that.
The Jindal administration suggested Monday that it could take up a defense of the law itself.
“We believe Act 544 is constitutional and clearly applies to SLFPA-E, and we would appeal any ruling that had the effect of allowing this frivolous lawsuit to go forward,” Jindal spokeswoman Shannon Bates said in an emailed statement.
When Brown takes up the arguments over Act 544 in federal court next month, she will not necessarily have to take Clark’s ruling into account. And whatever she decides, a lengthy appeals process likely will have to play out before any ruling is finalized.
Follow Jeff Adelson on Twitter, @jadelson.