At the week’s beginning, the U.S. Supreme Court served notice of its refusal to hear the Southeast Louisiana Flood Protection Authority-East’s suit against nearly 100 companies that explored and extracted oil for decades, leaving intact numerous lower court rulings against it. Thus ended with a whimper the attempt by a rogue government to squeeze money out of the private sector to finance its activities through a nuisance jackpot justice gambit.
(It also became a major financial setback for the Jones, Swanson, Huddell and Garrison firm, which had signed a huge contingency contract that could have swiped nearly a third of any award. Instead, they get nothing; how many millions of dollars they lost remains private.)
Edwards throughout expressed sympathy for the attempt, but has concentrated his own efforts on backing parish-initiated suits under state law. But not only does this suffer from using the same logic that the federal courts now definitively have found wanting – meaning plaintiffs must hope state laws on the matter must differ enough from federal ones to give this approach any hope of success – but also last year Landry attached his office to these.
The significance of that became heightened latter that day, when Landry announced his office would intervene in Louisiana’s attempts to sue opioid manufacturers for too enthusiastically promoting their product. Days before, Edwards had said the state would do that, but Landry stepped in, saying the state needed coordinated, expanded, and expert pursuit of the matter. His motion to supersede argues that his office ultimately has the authority to handle these matters when it chooses.
The Edwards Administration alleges that misreads the Constitution – except it has a very poor track record when it comes to legal interpretations, a point reinforced when the next day a state appellate court reaffirmed a lower court ruling handing Landry another victory over Edwards. This case involved Landry’s injunction against an executive order of Edwards’ that created new protected classes subject to state contracting regulations. The court essentially agreed with the district court ruling upholding Landry’s view that Edwards unconstitutionally usurped legislative powers in doing so.
Whether Edwards wants to get strike three called against him on this at the Louisiana Supreme Court remains to be seen, but the fact remains that Landry’s interpretations of his office’s powers continue to secure legal ratification while Edwards’ keep suffering defeat after defeat. Perhaps this explains why, since a flurry of grandiose publicity from Edwards over a year ago concerning the parish lawsuits in telling the world how the state would take the lead on these, little has happened.
Towards the end of last year a state district court ruled at least one of the parish suits could go to trial, but controversially justifying it by calling it permissible to substitute judicial for administrative remedies. However, other legal questions concerning that case, involving Jefferson Parish, remain unresolved. Plaquemines Parish’s suit also has seen small movement forward. It will take months to address all the legal niceties, and even if they all play to the advantage of the plaintiffs, defendants can challenge these rulings in higher courts.
But the fact remains that the basic justification for these – oil company activities disregarding state law caused coastal damage – foundered in the SLFPA-E case, because of the myriad of other potential causes of coastal damage that makes it impossible to show liability definitively on behalf of the companies, especially when the state in the past did not see fit to penalize them for the allegedly destructive activities. Landry seems to understand this, so, just as in the opioid case, he could take control of the cases and either drop these or settle for figures frustrating the jackpot justice desire of Edwards and the parishes (and the desire to rake in a bonanza by the private firm Talbot, Carmouche and Marcello that parishes first approached to initiate legal activity).
Edwards, a trial lawyer himself and heavily supported by his brethren in his election, may have come into office thinking he could advance his agenda by springing tort jihad against its opponents. Fortunately, by Landry’s insistence in following the rule of law, to date he seems to have neutered that.