July 3, 2014 01:37
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No doubt many of you are wondering what's going on with the flood authority's lawsuit against numerous oil companies. I can assure you, It's alive!

[Editor's Note: This letter from former Southeast Louisiana Flood Protection Authority - East Vice President John Barry first appeared Wednesday as a post on his Facebook page.]

Colleagues and Friends,

No doubt many of you are wondering what's going on with the flood authority's lawsuit against numerous oil companies. I can assure you, It's alive!

That's the main message. Now for a little more detail: As you no doubt know, the single bill (SB 469) which Bobby Jindal and the industry managed to get through the legislature was signed by the governor. Since it's now - for the moment anyway - a "law" it will henceforth be known as Act 544.

The attorneys will definitely challenge this bill on several grounds. Let me name just two:

First, Act 544 does prohibit "local government entities" - except for parishes - from suing over any oil-related damages in the coastal zone. However, a local government entity has a very precise legal definition, and that definition does not fit the flood authority. So the bill actually does not prohibit the flood authority from suing. That is a very strong argument that the attorneys will make. (Thank you Jimmy Faircloth, Jindal's favorite attorney, for this genius move in writing the bill; based on his track record in this and other cases apparently, Jimmy needs to go back to school.)

Second, a state court has already ruled that an unrelated law (about a hospital closure) just passed by the legislature is unconstitutional because its advocates violated procedural rules in passing it. They put the bill on the agenda for a committee hearing after 4:00 PM one evening and heard the bill at 9:00 AM the next morning. Exactly the same thing happened with SB 469/ Act 544 - only worse. Most of you will probably recall that SB 469 as originally written had nothing whatsoever to do with the lawsuit. The industry was attempting to move another bill, SB 531. But we had 531 killed in one committee, so they stripped everything out of 469 except the bill number and the title, shoehorned into it the core of 531, and got it heard in a different committee. So not only was proper notice not given, but 469 as it was heard was entirely different from how it was filed. And it gets even more egregious: forget the lack of notice - even if you were physically in the room when the committee heard 469 you could not get a copy of the bill. This violates all sorts of notice and open meetings standards.

As I said, those are only two of the challenges the attorneys have. They're both pretty good ones. And they have others. Needless to say, the attorneys are happy to be fighting on the battlefield where the lawsuit belongs - in a courtroom, and not in the legislature.

But that's not the only recent development.

On July 24 2013, the suit was filed in state court in Orleans Parish. The defendants - the industry - immediately removed it to federal court, and on Dec. 18, 2013, attorneys for both sides argued before federal Judge Nannette Brown whether it should stay in federal court or return to state court. Judge Brown, incidentally, was appointed by Obama and has only served about two years on the bench. This past Friday, June 27, she ruled that the suit will stay in federal court.

What's that mean for the case?

The biggest positives: Judge Brown's 83 page opinion pretty much rejected all the technical arguments made by the defendants' attorneys, even though she kept the case. Also, by keeping it in federal court, the case is now entirely out of the political arena - for those of you who don't know, in Louisiana judges are elected, so the industry can pressures state judges by choosing to fund either sitting judges or their opponents and so on. No such pressure works on the federal bench.

The biggest negative: No matter what happens in her court, the result will probably be appealed. And the 5th Circuit Court of Appeal is the most conservative appeals court in the country.

However, if the suit moves forward - if Judge Brown finds that Act 544 does not apply -  then all those things I said in the past six months about settlements happening will come true. I firmly believe that will happen.

There's a separate issue on the horizon. Paul Kemp is a coastal scientist who sits on the Southeast Louisiana Flood Protection Authority East, and he supports the lawsuit. His term may have expired July 1, 2014. I say "may" because his appointment letter says it expires July 1, 2015. I don't want to get too far into the weeds here as to why the difference, and the attorney general has been asked to issue an opinion. He probably will soon. If it's determined his term has already expired, that triggers the next battle - over his renomination. There is a complex nominating process for the board with a special nominating committee, and it's possible that if the committee chooses to do so, it could keep Paul on the board whether Jindal wants him or not. In the recent past, the committee cooperated with Jindal, but several things have changed since then.

That's all for now folks. When something happens, I will give you another update.

Thanks for your support. And remember who helped us - who helped you, if you live in Louisiana - and who betrayed you when the next election rolls around.