Twenty-three eminent law scholars from universities nationwide have come out against legislation aimed at killing the New Orleans levee board’s lawsuit against the oil and gas industry, arguing that Gov. Bobby Jindal could jeopardize billions of dollars worth of BP damage claims if he signs the legislation into law.
The memorandum, titled “SB 469 Poses Litigation Risk for Local Government Oil Pollution Act Claims in Louisiana, Specifically Including Those Arising from BP’s Macondo Spill,” can be read in full here.
The memo’s principal author is Loyola University law professor Robert Verchick — a former Deputy Associate Administrator for Policy with the U.S. Environmental Protection Agency — who spoke by phone Tuesday with The IND. (Tuesday's memo expands on an earlier version released this weekend, and includes a jump from four to 23 signatures of law professors from throughout the country.
Included among the legal scholars is Zygmunt Plater of Boston College, who chaired the Alaska Oil Spill Commission Legal Task Force after the 1989 Exxon Valdez disaster. According to WWLTV, the Exxon Valdez spill led to the Oil Pollution Act of 1990, which serves as the legal basis for the state's damages lawsuits against BP over the 2010 oil spill.
“SB 469 is intended to erase the lawsuit the levee board had brought against oil and gas companies for coastal erosion, but it goes much further than that,” says Verchick. “There are some provisions that I think pose a risk to the litigation against BP.”
According to Verchick, the federal Oil Pollution Act allowed the state and parishes to file suit against BP in the wake of the 2010 oil spill for a variety of reasons. Yet, if SB 469 becomes law, Verchick says the scope of what is considered a legitimate lawsuit will be greatly reduced.
“One paragraph in SB 469 says that states and local entities shall not pursue any kind of claim that has to do with waters in coastal Louisiana unless it’s a certain type of claim that the bill allows,” explains Verchick. “One type it allows would be open to this idea of oil spills, but only for property damage. No other type of damage. The legal term property damage just describes the value of the property that is spoiled. It doesn’t include what lawyers call economic loss, and that’s what makes up the bulk of that $10 billion in claims against BP, which includes things like lost tourism dollars, or lost tax revenue, or increased medical response or increased job training. The list really goes on and on.”
Verchick says that change in language could very well create a legal advantage for BP in defending itself against non-property damage related claims.
“We’re worried that this language that parishes and the state may not pursue any claim unless it involves property damage will let BP to say ‘Oh well, these claims will have to be thrown out because the state and parishes no longer have the authority to bring claims on accidents involving coastal waters,'” says Verchick. “In the future there could be a small spill, a busted or ruptured oil or gas line, or there could be a spill that doesn’t involve petroleum — it could be a chemical spill — and any of those things would of course be terrible for coastal communities and of course people would want to bring lawsuits. Under SB 469, it’s pretty clear that the Legislature is instructing the state not to bring those claims unless it’s about property damage.”
Oil industry attorneys helped draft the legislation, and BP lobbied for its passage.
For Jindal, who hasn't acted on the legislation while the state attorney general reviews the concerns of Verchick et al, the clock is ticking. He now has only 19 days left to either sign or veto the bill. If he does nothing, it becomes law.