La. flood board begins legal challenge of law blocking lawsuit over coastal oil, gas drilling

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NEW ORLEANS — A south Louisiana flood authority is fighting a new state law aimed at retroactively killing a lawsuit filed last year over coastal damage attributed to oil and gas drilling.

The Southeast Louisiana Flood Protection Authority-East argues in federal court papers filed Tuesday that the law cannot be used to block the lawsuit, which the authority filed in 2013 against more than 90 oil, gas and pipeline companies.

Lawyers for the flood authority are seeking a judge's ruling upholding their assertion that the bill was so badly drafted during the legislative process that it doesn't achieve the stated aim of its backers.

The law, Act 544 of the 2014 session, specifically prohibits any "state or local governmental entity" from pursuing certain types of lawsuits. But, the flood authority's lawyers argue, regional flood authorities don't fall under the constitutional or statutory definitions of local government entities.

Tuesday's filing also raises various constitutional issues. For instance, it said the Legislature, by passing a law attempting to affect a matter already before the court, violated the Louisiana Constitution's separation of powers.

They also claim the new law violates a constitutional prohibition against "special laws" concerning civil or criminal court actions; that it would unconstitutionally deny the flood authority the right to pursue remedies for coastal damage; and that insufficient public notice was given when the bill aimed at outlawing the lawsuit was grafted onto other legislation at a Senate committee hearing.

The protection authority's lawsuit says the oil, gas and pipeline companies' dredging of canals and drilling activities contributed to the degradation of coastal wetlands that form a natural hurricane buffer for New Orleans. Backers of the lawsuit say the industry has had decades to remedy the situation and that the lawsuit is needed to fund coastal restoration.

Gov. Bobby Jindal and oil industry backers attacked the lawsuit as an assault on an important Louisiana industry, a windfall for trial lawyers and an infringement on the state's efforts to fix the coast. Jindal backed the legislation aimed at killing the lawsuit.

"They fought the legislation during the legislative session because they knew their frivolous lawsuit was at risk of being thrown out," Jindal spokeswoman Shannon Bates said Tuesday in an emailed statement.

Greg Beuerman, spokesman for defendants Shell, BP and Chevron, said the protection authority's motion was filed prematurely. "This matter should be briefed at the same time as other threshold legal issues which we anticipate will dispose of this poorly conceived suit entirely," he said in an email statement.

While backing legislation to kill the lawsuit, Jindal also has been replacing protection authority board members with lawsuit opponents as vacancies occur. He is expected to have an opportunity by September to replace a lawsuit supporter and give opponents a 5-4 majority on the board.

Killing the lawsuit would be expensive for the board. The board's contract with private attorneys has a contingency arrangement: They are paid only if they win. However, it also contains a "poison pill" provision requiring that they be paid if the lawsuit is withdrawn. In June, board members said the costs could be as high as $11 million and that figure is growing.

Lawsuit supporters say that is a reason to keep pursuing it. Industry supporters say it's a good reason to abandon it now.

"The consequences of this group's actions will be left to hard working people in the Flood Authority's jurisdiction, whose property will be taxed to pay these rapidly increasing legal bills," said a statement from Marc Ehrhardt of the Grow Louisiana Coalition, a group that supports the oil industry.

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