In a New York Times op-ed published late last month about Senate Bill 469, which is designed to kill an environmental lawsuit brought by the local flood protection authority, retired Lt. General Russel Honore wrote, "The oil and gas industries and pipeline companies aren't responsible for all of Louisiana's coastal loss. Nobody claims that they are. It's important, though, that the industry be held to account for the damage it has done." Gov. Bobby Jindal and most state lawmakers feel otherwise.
From the day the Southeast Louisiana Flood Protection Authority-East (SLFPA-E) sued 97 oil, gas and pipeline companies last July, the governor made no secret of his opposition to the lawsuit. He vowed to kill it, and on June 6 he signed SB 469 into law to accomplish that aim. Now we wait to see if the new law does what it was designed to do.
We know the aim of the SLFPA-E lawsuit: to hold the named defendants accountable for environmental damage to coastal wetlands that resulted from their oil-and-gas activities there. The aim of SB 469 is equally clear: to kill the flood authority's lawsuit — retroactively.
Jindal initially delayed signing SB 469 so that Louisiana Attorney General Buddy Caldwell could review the bill. Caldwell then asked Jindal to veto the bill, saying it was "overly broad." Dozens of legal scholars agreed, saying SB 469's retroactive provisions could actually undercut dozens — possibly hundreds — of pending lawsuits brought by parishes and state agencies against oil giant BP for damages related to the 2010 Deepwater Horizon disaster. The experts, along with a growing number of local officials, warned that SB 469 could scuttle countless other legal claims that have nothing to do with the SLFPA-E lawsuit.
Jindal disagreed. He signed the measure and proclaimed that it "will help stop frivolous lawsuits and create a more fair and predictable legal environment." We'll see. Signing SB 469 ends the political fight over the lawsuit, but the legal battle is just beginning. Opponents of the new law say that it is not just overly broad, as Caldwell noted, but also unconstitutional — and that it could scrap not just local and state governmental claims against BP, but possibly other environmental claims as well. The only certainty at this point is that the new law will be litigated for at least another year, or two — or longer. By then, Jindal (who immediately took off for an appearance in South Carolina after signing SB 469) will be long gone from Louisiana.
Regardless of how one might feel about the SLFPA-E lawsuit, no one in his or her right mind (except maybe BP) wants SB 469 to take away more rights than its authors intended. But that is precisely the risk Jindal and supporters of SB 469 are now taking. In their mad dash to protect the energy industry from the SLFPA-E lawsuit, backers of SB 469 created the legislative equivalent of Godzilla — a law that could destroy much more than its creators intended. Having been warned of these consequences, Jindal now owns that monster. He should pray that the courts agree with his interpretation of its scope.
Meanwhile, SLFPA-E lawyers claim the measure is so inartfully worded that its reference to "local government entities" and "levee boards" may actually exclude the SLFPA-E lawsuit from its prohibitory provisions. (The suit was brought by three area levee districts, each of which is a state agency, not a local entity.) That would be sweet irony for supporters of the lawsuit, but only if the new law doesn't also let BP and others off the hook.
In signing SB 469, the governor has ignored the advice of Louisiana's highest-ranking legal officer. Instead, he followed the advice of his executive counsel, Thomas Enright Jr., who offered no legal arguments of his own in response to Caldwell's letter suggesting a veto. Instead, Enright simply claimed that SB 469 "was fully debated" by lawmakers and received widespread media attention, as if that somehow cured the bill of any flaws.
All responsible parties — including energy companies — admit that oil and gas activity has contributed to the degradation of Louisiana's coast. Jindal and most state lawmakers have decided not to hold the energy industry accountable. That's their legacy.
If SB 469 also lets BP off the hook, Louisiana will suffer irreparable harm — and Jindal will go down in infamy as the governor who sold out Louisiana for his own political gain. That is the risk Bobby Jindal has taken by signing SB 469.