Only a few weeks ago, supporters of the Southeast Louisiana Flood Protection Authority-East’s (SLFPA-E) environmental lawsuit against 97 energy companies were mired in despair. Gov. Bobby Jindal and SLFPA-E nominating committee chair Jay Lapeyre were poised to tip the balance on the authority’s board against the lawsuit and kill it.
Then, to the surprise of many — and over the objections of Jindal and Lapeyre — the nominating committee up and did the right thing by re-nominating coastal scientist Paul Kemp for another term on the board. Kemp supports the lawsuit, and his reappointment preserves a 5-4 majority on the board in favor of the suit. For now.
That was just the beginning of an amazing turn of events against Big Oil.
On Monday, Oct. 6, state District Court Judge Janice Clark of Baton Rouge ruled that Act 544 of 2014 (filed as Senate Bill 469) does not apply to the SLFPA-E lawsuit. SB 469 was specifically (though not very artfully) crafted to kill the lawsuit retroactively. The suit is currently pending in federal court in New Orleans.
SB 469 was literally thrown together overnight when the original anti-lawsuit bill was poised to die in a Senate committee. Through a ham-fisted bit of legislative legerdemain, lawsuit opponents hijacked a bill in a friendlier committee, completely gutted and rewrote it, and then passed it with relatively little opportunity for debate — and, Judge Clark ruled, other fatal defects.
In their haste to cobble together a bill to retroactively kill the lawsuit, Big Oil’s lobbyists and legislative lapdogs did an incredibly sloppy job. The measure they rammed through the Legislature, with Jindal’s full support, barred such lawsuits by “local” entities. SLFPA-E is not a local entity. It is a separate, constitutionally created authority that is neither fully state nor fully local, Judge Clark ruled.
Jindal and Big Oil vow to appeal, but state Attorney General Buddy Caldwell has already thrown in the towel. Caldwell, to his credit, recognizes that the judge got it right. Moreover, his office punted on the more important question of whether Act 544 is constitutional. His brief on that question simply states that, having ruled the Act does not apply to SLFPA-E, Clark need not consider its constitutionality.
Supporters of the lawsuit hope Clark will strike down the law anyway, in case Jindal and Big Oil take another shot at trying to kill the litigation retroactively. This matter is bound to be heard by higher courts, and thus a final determination could be weeks or months away.
Meanwhile, the day after Clark issued her ruling in support of the lawsuit, conservative columnist Quin Hillyer and liberal historian John Barry (a former SLFPA-E member and leading advocate of the lawsuit) jointly penned an op-ed in The Advocate newspaper calling for a tax on oil and gas activities in Louisiana’s coastal wetlands — to pay for the state’s coastal master plan. That plan will cost between $50 billion and $100 billion over the next 30 years, but it does not contain a financing mechanism. Hillyer and Barry suggested an obvious one: make the energy industry contribute.
The significance of that idea cannot be understated. Former Gov. Dave Treen, a conservative Republican, proposed a “Coastal Wetlands Environmental Levy” (CWEL) more than 30 years ago. Treen’s idea went nowhere because of opposition from Big Oil.
Now, thanks to the SLFPA-E lawsuit, there’s a mechanism to bring Big Oil to the negotiating table. Noting that they disagree on many things, including the lawsuit, Hillyer and Barry nonetheless agree “that the energy industry caused significant damage” to Louisiana’s coast. “And we agree on the need for aggressive actions to combat these losses.” The two men wrote that “it is long past time” to impose a limited, fair and reasonable version of CWEL.
When a Reaganesque anti-tax guy like Hillyer (who, coincidentally, got his journalistic start at Gambit) says it’s time to tax the energy industry to save Louisiana’s wetlands, the tide has definitely turned. Big Oil should come running, not walking, to the table to settle the lawsuit and clean up its act.