A federal judge Wednesday heard a second round of arguments over the meaning and constitutionality of a state law meant to kill the controversial lawsuit filed by a local flood-protection board against oil and gas companies for wetlands damage.
Lawyers for the 86 oil and gas companies have asked U.S. District Court Judge Nannette Jolivette Brown to dismiss the lawsuit before the trial begins because a law passed in June, stripped the Southeast Louisiana Flood Protection Authority-East of its authority to sue.
While the flood board agreed lawmakers wanted to kill the suit, it points to the law’s wording that says “no state or local government entity” shall have the right to file such a lawsuit. It says that does not apply to the board because it was created as an “independent political subdivision” of the state and doesn’t fit either definition.
Brown asked attorneys for both sides “why is it the purview of the federal court” to correct what she saw as “clearly a drafting issue” that the state Legislature should correct.
James Swanson, representing the flood authority, said, “I couldn’t agree more.”
But Keith Jarrett, an attorney representing Shell, disagreed.
“We don’t think there was a drafting issue,” he said, relying on statements by lawmakers during debate referring specifically to the flood authority. “Could it have been clearer yes? But we think it is clear enough.”
The flood authority also has claimed the law violates the state constitution in two ways: Not enough time was allowed for public comment after it was created by grafting two different bills together, and it breached the separation of powers by allowing the Legislature to interfere with a pending court action.
The flood authority in October won decisions in state court on each of those issues.
Jarrett state law waives additional public comment time in such cases when the two bills are germane. And he pointed to a state Supreme Court ruling favoring a state law that retroactively killed a lawsuit New Orleans brought against gun manufacturers.
Following Wednesday’s arguments attorneys for both sides said they didn’t expect a ruling before the end of the year — nor a decision by Brown to end the case.
State law allows a ruling on a state constitutional issue by a lower court to be fast-tracked to the state Supreme Court for review, a process that could take three to four months. And federal judges typically defer to a state Supreme Court ruling on its constitution, the lawyers said, which could delay Brown’s decision.
Bob Marshall covers environmental issues for The Lens, with a special focus on coastal restoration and wetlands. While at The Times-Picayune, his work chronicling the people, stories and issues of Louisiana’s wetlands was recognized with two Pulitzer Prizes and other awards. In 2012 Marshall was a member of the inaugural class inducted into the Loyola University School of Communications Den of Distinction. He can be reached at (504) 232-5013.