Sen. Bret Allain  

When Sen. Bret Allain (R-Franklin) realized the odds were stacked against his Senate Bill 531, he shopped venues until he found a committee more favorable to killing the lawsuit filed by the New Orleans levee board against 97 oil and gas companies.

Allain’s bill was originally slated to be heard by the Senate Judiciary A Committee on April 29. The legislation would have retroactively killed the levee board’s lawsuit, as well as the suits filed by the Jefferson and Plaquemines parish governments against the industry for coastal damages.

Allain soon realized the chances of his bill moving through the Senate Judiciary Committee were slim at best.

“We almost certainly had five or six out of the seven votes and they knew it,” says John Barry, the levee board’s former vice president and one of the lawsuit’s chief architects.

So Allain killed the bill before the Judiciary Committee could; he then resurrected it as an amendment to S.B. 469 by Sen. Robert Adley (R-Benton). For Allain, this proved a wise move, as Adley’s bill was scheduled to go through the Senate Natural Resources Committee, where it was guaranteed to receive the favorable treatment it got.

On Wednesday, the bill went before the full Senate where an issue quickly arose between the legislation’s author and coauthor over whether it should be retroactive. In a really close call for Allain, the Senate voted 18-19 on exempting the levee board’s suit from the legislation, and then later 24-13 in favor of the bill.

One opponent of Allain’s bill and its retroactive clause was Sen. Danny Martiny (R-Kenner), who argued that the issue should have been left up to the courts, not lawmakers.

“I thought yesterday that Sen. Martiny made a terrific argument that when this board was created in 2006 we wanted an independent body, and that now we’re taking that authority away with this bill,” says Sen. Fred Mills, R-Parks, another opponent of Allain’s bill (Mills and Republican Sen. Jonathan Perry of Kaplan were the only members of the Acadiana delegation who voted against the Adley-Allain bill). “Why would you go retroactive on something you gave them the authority to do in 2006? If we start setting this example, we basically bypass the judicial system. And Martiny said it, 'Ok guys, you got your victory, but I’ll be here next year telling you how much we’ll spend defending this legislation that’s not constitutional.'”

PerryJ MAY 110407 0093-2  
Sen. Jonathan Perry  

For Barry, there’s still some hope, as Allain’s bill still has to clear the House.

BarryJ 140205 184 RMay  
John Barry  

“It may not pass the House,” says Barry. “The legislation itself is amazingly ambiguous. So I guess as Sen. Martiny said on the floor, if it passes, it just guarantees it will be litigated, and it’ll be just one more thing for the courts to decide. Obviously, I would rather have the legislation fail in the House. It’s very badly written with multiple interpretations: You have the lead author [Adley] saying it’s not retroactive, and you have the bill’s coauthor [Allain] saying it is retroactive. Even they couldn’t agree on what it did and how it did it. If that’s not an invitation to go to court then I don’t know what is.”

What’s troubling, says Barry, is that the people realize the importance of the lawsuit, as does the media. “I don’t believe there’s any question about that anymore,” says Barry. “We have editorial support from every paper that’s opined on this. Lake Charles, Lafayette, New Orleans, Baton Rouge, Monroe, Houma. Everybody knows we’re right. It’s stricly the political power of the governor and the industry inside the Legislature that is the problem.”

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