MAGINNIS: Legislators to Judge Suit Against Big Oil

Before the Legislature convenes on Monday, hundreds if not thousands of citizens will amass at the Capitol steps and grounds for a festival that will be more than a party. Organized under retired Army Gen. Russel Honoré, the first Louisiana Water Festival will be part celebration and part demonstration in favor of environmental justice initiatives to be considered in this legislative session.

But the primary goal is to defend against legislative attempts to squash the historic lawsuit filed by the Orleans area flood protection authority against 97 energy companies for damages to coastal marshes from their drilling, dredging and digging of canals. The general and his “green army” will have a big fight on their hands, for the Legislature long has been a friendly forum for Big Oil and its own “green army” of well-paid corporate lobbyists.

The environmental volunteers may be heartened by a first legal skirmish last week that went badly for their nemesis, the Louisiana Oil and Gas Association. It had petitioned a district court in Baton Rouge to block the lawsuit on the grounds that Attorney General Buddy Caldwell illegally authorized the Southeast Louisiana Flood Protection Authority-East to hire outside attorneys on a contingency fee basis. But in a deposition with lawyers for the attorney general and the flood protection authority, Don Briggs, LOGA’s long-time president, repeatedly failed to offer any evidence to back up his claims that the state’s legal environment was causing companies to pull up their rigs and leave. He even admitted to not having read the lawsuit. Clearly, he was over-matched by coming unarmed with facts to a word fight with lawyers. Big mistake.

Yet, Briggs and his members still maintain that the crux of their suit is valid, that Attorney General Buddy Caldwell misread the law in allowing the flood protection authority to contract with outside counsel instead of his representing the authority himself. The judge in the case will interpret what the law means, but, regardless, the real fight will come later at the Capitol over an attempt to change what the law says.

Leading that charge will be Sen. Robert Adley, R-Benton, among the most tenacious of legislators who goes into no debate unprepared. He owns a company that manages the distribution of natural gas to municipalities and gas districts, so he is inclined to see the industry’s view.

He has pre-filed a bill to make clear that no political subdivision of the state, which includes the Southeast flood authority, can hire outside counsel without the direct approval of the governor and the attorney general. Another Adley bill would give the governor eventual control over the regional flood protection authorities by changing the nominating process of members to his advantage.

Yet the Adley legislation that would have immediate and fatal effect on the flood authority’s lawsuit is Senate Bill 546, which states that no governmental body can sue an oil and gas company that is lawfully acting within a state permit, which is the primary defense of the sued oil companies. The bill would be applied retroactively, which would shut down the legal action with a majority vote of both houses and the willing, eager signature of the governor.

Opinions are divided about how hard it will be for the petro-friendly Legislature to pass a bill so important to the oil industry. Despite its many employees across the state, a recent statewide poll showed that the public, by a 50-36 percent majority, does not want the Legislature to interfere with the suit going to trial.

Adley said his bill would not affect separate lawsuits brought by the Jefferson and Plaquemines parish councils, which are more limited and specific in citing companies that have violated their coastal zone permits. Legislators are loath to meddle in legal actions brought by locally elected officials, but they may act differently toward litigation brought by an appointed board, in defiance of the governor. In 2006, after the great storm, the regional flood protection authorities in the Orleans area were established in law to act independently. Yet many legislators may now feel that since they are not independent of the governor and Big Oil when it counts, why should some appointees be treated differently. The challenge will be for Gen. Honore’s army to make lawmakers act otherwise.

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