During a recent meeting of the regional flood authority, commissioner Paul Tilly asked for an update on the panel’s lawsuit filed in July 2013 against oil and gas companies for destroying wetlands that once protected its levees.
When told oral arguments on an appeal were possible in the spring, one wit asked “Spring 2016?”
Two and a half years after igniting a political firestorm in Louisiana and grabbing national headlines, the suit by the Southeast Louisiana Flood Protection Authority-East may have lost the news spotlight but it continues to hold attention in the courts – and in politics.
After surviving Gov. Bobby Jindal’s efforts to kill it -— first with legislation and then by stocking the authority with acolytes — it is now at appeals courts on both and state and federal levels.
None of the court action so far has addressed the merits of the board’s claim: The illegal destruction of wetlands has increased the board’s financial burden of protecting the region against storm surge.
Instead, courtroom arguments have centered on points of law, including the authority’s use of private attorneys, the constitutionality of the bill Jindal had passed to retroactively kill the suit, and the legal standing of the authority to sue under the laws it claims have been violated.
The final determination of all those points remain unresolved.
The federal case
Although the levee authority filed its suit in state court, the oil companies succeeded in moving the case to the federal district court in New Orleans on the claim the environmental laws and regulations involved were federal, not state. In short order, they asked for a dismissal of the case based the on claim the flood authority did not qualify for protection under Louisiana law.
On Feb. 13 this year, Judge Nanette Jolivette Brown granted that motion.
The authority appealed the ruling to the U.S. Fifth Circuit Court of Appeals and briefs were filed on Nov. 9.
Rob Verchick, environmental law professor at Loyola University, said the levee authority’s appeal rests on two main issues. First, because their claims are based on Louisiana state law, the case should have been decided by a state judge instead of the federal judge who ruled against them. Second, the federal judge misapplied the law and reached the wrong result.
“Essentially, the case boils down to whether the law protects a community when a company’s intentional or negligent destruction of wetlands increases the community’s risk of flooding,” Verchick said. “The levee board says state law protects communities in such cases, particularly where a company’s actions violate state and federal permitting standards. The defendants say the law does not protect communities in such situations, regardless of those violations.”
Attorneys for the board expect to know by February whether the court will allow oral arguments, or simply rule based on the briefs. In either case, no decision is expected until the spring.
Two separate legal issues have arisen from one suit.
In December 2013, the Louisiana Oil and Gas Association sued Attorney General Buddy Caldwell claiming he erred by authorizing the levee authority to hire outside attorneys to file its suit.
On March 10, 2014, 19th Judicial District Court Judge Janice Clark gave the levee authority a rousing victory calling the association’s suit “frivolous.” Two months later Clark was still wrestling with side issues in the case such as court costs when the Legislature passed Jindal’s bill which retroactively prohibited state agencies from filing suits without approval of the governor.
The flood authority then asked Clark to make two rulings: First, as an independent political subdivision the new law, Act 544, did not apply to it. Second, the new law violated the state constitution.
In October, Clark agreed, concluding Act 544 was unconstitutional because it violated the separation of powers, and it was rushed through the Legislature with a “repugnant” violation of public notice requirements.
The association has appealed the ruling on outside attorneys, and that action is pending in the First District Court of Appeals.
Clark’s ruling on the constitutionality of Act 544 is expected to go before the state Supreme Court sometime next year.
Supporters of the powerful oil industry quickly rallied to its support, but reached only limited success.
Legislators filed 19 bills aimed at the suit, but none passed. Instead, in the final weeks of the session, they found themselves quickly cobbling together portions of different failed measures to get something passed. That’s how they ran afoul of Clark.
And Jindal’s monthslong offensive against the board fell one vote short of the five-member majority he needed to have the authority vote to drop the suit.
With less two months left in office, Jindal has run out of chances to change the board. And governor-elect John Bel Edwards opposed Jindal’s bill while in the Legislature.
That doesn’t mean the oil industry has raised the white flag.
In fact, on its website, the Louisiana Oil and Gas Association unambiguously promises retribution for any officials — including judges — that cross its agenda, stating:
“Judges that blatantly rule against the industry, parish presidents that stand behind egregious lawsuits and mayors that publically support litigations to prevent oil and gas activity were elected at some point in time. These same officials can also be voted out of office.”
Election results showed Edwards lost most parishes that are centers of the oil industry.