When Gov. Bobby Jindal signed a controversial bill retroactively banning the Southeast Louisiana Flood Protection Authority-East from filing lawsuits without his permission, many people thought that would put an end to the suit against 97 oil and gas companies.
|“This is just the start of the beginning of this ... We’ve just been waiting for the Legislature to do its thing and the governor to sign the bill, and now we can get down to business" — Gladstone Jones, lead attorney for the levee board|
They should think again, said the Flood Protection Authority’s lead attorney on the suit.
“In fact, it would not be accurate to say this is even close to being over,” Gladstone Jones said. “It’s barely close to even starting.”
A legal fight over the law aimed at killing the lawsuit is expected to begin in the coming months, with lawyers for the authority arguing that the new law was unconstitutionally passed and does not actually apply to the authority. An initial ruling on those issues is likely to just be the first step in a process that will presumably see appeals that could drag on for months or years.
John Barry, whom the governor removed from the levee authority board for leading the lawsuit effort, now heads the nonprofit Restore Louisiana Now. In a letter to his organization, he recently outlined some of the tactics that lawyers for the Flood Protection Authority may use to keep the suit alive.
Barry described two points of contention: that legislators broke their rules on public notice while moving the bill between committees, and that the language of the law actually exempts the levee authority from the intended oversight.
During the session, lawmakers supporting one bill to stop the suit failed to gain approval in one committee. But they were able to have it amended into another bill that was before a more receptive committee, where it eventually passed.
“So not only was proper notice not given, but [the new bill] as it was heard was entirely different from how it was filed,” Barry wrote. “And it gets even more egregious: forget the lack of notice — even if you were physically in the room when the committee heard [the bill] you could not get a copy of the bill. This violates all sorts of notice and open meetings standards.”
According to Barry, a state court already has ruled that a 2014 bill dealing with hospital closures was unconstitutional because of similar public-notice problems.
He also told his followers that the flood authority is not covered by a section of the new law barring government entities other than parishes from filing suits for oil-related coastal damages.
“However, a local government entity has a very precise legal definition, and that definition does not fit the flood authority,” Barry wrote. “So the bill actually does not prohibit the flood authority from suing. That is a very strong argument that the attorneys will make.”
Anti-suit lawmakers, however, have said they carefully crafted the bill to meet the expected legal challenges.
Jones, who agreed with Barry’s points, laid out the following likely timetable for the litigation.
In the next two weeks, lawyers from both sides will meet with U.S. District Judge Nannette Jolivette Brown to discuss likely pre-trial issues.
Chief among those will be the impact of the new law. The defendants likely will file a motion to have the case dismissed based on it. Jones said his team will ask the judge to rule on the constitutionality of the law.
“We’re likely to ask the judge to first rule on the constitutionality issue,” he said.
That process will take at least three months, Jones said.
Any decision by Brown would likely lead to an appeal by the disappointed side, he said.
“This is just the start of the beginning of this,” Jones said. “We’ve just been waiting for the Legislature to do its thing and the governor to sign the bill, and now we can get down to business.”
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.