Mike Hasten / Gannett Louisiana
BATON ROUGE, La. – Several law school professors, including one at Loyola, have warned Gov. Bobby Jindal that if he signs a bill killing a lawsuit filed by a New Orleans area levee authority, he’s jeopardizing lawsuits filed against British Petroleum for damage the massive amount of oil it released inflicted on the coast.
Senate Bill 469 by Sen. Bret Allain, R-Franklin, retroactively throws out a lawsuit filed by the Southeast Louisiana Flood Protection Authority-East against 97 oil, gas and pipeline companies for damage inflicted along the coast by their activities.
The bill accomplishes that by amending the Coastal Zone Management Act to state that no lawsuits can be filed against oil companies unless it’s by an entity identified in the act and it has an approved plan for restoration that included in that act.
Robert R.M. Verchick, who holds the Gauthier-St. Martin Chair in Environmental Law at Loyola University, wrote “does our governor realize that, if he signs this bill, he also may be killing scores of claims that his own state and associated local governments have brought against BP for the Macondo oil spill?”
Verchick points out “SB 469 clearly lists not only who can bring claims in Louisiana's coastal zone, but what kind of claims they can bring. Notably missing from its list are claims for economic losses and claims for natural resource damages under the Oil Pollution Act of 1990 (OPA) – the very basis for pending claims against BP.”
Verchick’s email says his opinion is supported by law school professors at the University of Alabama, the University of Florida and Boston College.
The state, several parishes, coastal cities, fire district and airports have lawsuits seeking economic claims against BP under OPA, Verchick said. SLFPAE has a claim against BP for more than $79 million, mostly to recover tax revenues it lost because of the oil spill.
“These OPA claims are not frivolous or opportunistic,” he said. “Communities that are bringing these claims were hit hard by the Macondo oil spill. They're trying to recover just some of what they lost.”
Rep. Joel Robideaux, R-Lafayette, who handled the bill in the House, said attorneys who worked on SB469 said it doesn’t harm lawsuits filed by other agencies.
He said he considers the law professors’ problems “another red herring that’s out there to say it’s a bad idea. We’re going to fight that, I’m sure, for a while.”
Robideaux said “Throughout the process, every meeting that we had was with lawyers who are very well versed with the statutes.”
Those lawyers, he said, include House and Senate staff attorneys and Jimmy Faircloth, Jindal’s former executive counsel, and “I talked with LOGA (the Louisiana Oil and Gas Association) throughout the process.
“Once it gets here (on the House floor) it’s legislative attorneys who tell us what the consequences are,” Robideaux said. “It’s more our legal staff than anyone else when push comes to shove.”
He said the bill “specifically allows local governments, DAs, the attorney general to all file suit. That’s in current law and we didn’t change that at all.”
The bill changes the law by stating that only entities that are recognized in the Coastal Zone Management Act and that have coastal restoration or protection programs in the CZMA can file suits.
SLFPA-E is not one of those entities.
But some of the entities that are in the coastal zone act do not have recognized plans but have claims.
Verchick points out “Because SB 469 works retroactively, it could undo all of these claims. Did Gov. Jindal know that when he pushed SB469 in the Legislature?”
Asked about the retroactivity clause affecting those entities that have filed suit but didn’t have plans, Robideaux said “The way the lawyers interpreted it, who were drafting the bill, at any time you can get an approved program and then you could file suit.
“All they have to do is get an approved program through the Coastal Zone Management Act,” Robideaux said. “It isn’t a big hurdle at all.”
Asked his opinion of the law school professor’s claims, Robideaux said “I don’t see it being a problem. I’m sure I’ll be getting a lot of phone calls and have conversations with the legal staff who drafted the bill.”
Jindal is expected to sign the bill early this week.