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Analysis shows case compelling to make SB 469 law
Given that from the very start the overall themes behind the lawsuit launched by the Southeast Louisiana Flood Protection Authority-East were greed, ideology, and power, it’s no accident that forces that support the continuation of the suit channel those qualities in a last ditch effort to keep alive an option contrary to the best interests of the state and its people.
Filed last summer against 97 companies claiming they violated permitting law and had to pay unspecified damages that could reach into the billions of dollars, at the outset its ringleaders openly admitted they saw these oil producers as fatted calves to be slaughtered in order to increase vastly the revenues and spending of their agency, even if their choices seemed outside the scope of their agency’s authority, had no coordination with, or even countered the state’s overall master plan for coastal restoration. Insulated from accountability to taxpayers, this clique blindly asserted that this action was necessary for coastal restoration, and rigged the contract to shunt as much as a third of recovery to go to lawyers it hired and it put in a poison pill provision that meant a huge payday to them even if it chose to drop the suit – a clear breach of fiduciary duty to taxpayers.
In response, SB 469 was passed this session in the Legislature to allow only entities under the state’s Coastal Resources Management Act to bring legal claims involving allegations about permits in coastal areas. Those agencies would be the state, the secretary of the Department of Natural Resources, the attorney general, parish governments with coastal management plans, and the local district attorneys for parishes without a plan.
Throughout the process, with the bill reaching its final form by House committee amendment on May 21, no objections ever were raised that the agencies that could engage in civil suits would be too limited in this regard, threatening in particular the abilities of local government to pursue claims against BP concerning the 2010 oil spill disaster. In fact, such language was in the bill when it left its Senate committee on May 5. Yet it was only just after the Senate had agreed to House changes and the bill shipped to the governor came a letter about this from a few, then more, law professors and also a local judge, arguing the point that the bill could negate those suits.
This timing makes the motive behind the note suspect. If on the one hand you had dispassionate legal scholars interested in making the best policy possible, it would seem reasonable on their part that they would have tracked the bill from the beginning and if the May 5 change genuinely brought a serious chance of negating suits by dozens of small, local governments, they would have fired off the note shortly thereafter. But if on the other hand the pro-big government and jackpot justice forces behind the suit saw they would lose in the democratic arena, they would find allies to try to shape perceptions of the bill in a way they could pass off as poisonous, wait until it was too late to change it, and only then make the allegation public as a means to stop it through a gubernatorial veto.
The validity of the latter interpretation of events and motives is enhanced by understanding the law professors behind it. The ringleader appears to be Loyola University Professor Robert R. M. Verchick, former Environmental Protection Agency official under Pres. Barack Obama who worked in the area of climate change regulation (perhaps giving input to the recent noxious rules on carbon emissions the EPA inflicted), who, among other things, contributes commentary to “progressive” websites, represents environmental interests in court, and has written a book advocating a much more heavy-handed government involvement in environmental regulation. Others who apparently have endorsed his contentions also have histories of ideological political preferences that favor government overreach.
This doesn’t mean that this opinion necessarily is wrong, for arguments stand and fall on their own merits. But they are shaped by the prejudices of those making them when other arguments expose ambiguity in the issue area. And it does mean in this case that it’s unlikely a dispassionate argument got made against signing the bill without its makers bringing into it their political prejudices – especially when other lawyers, and those who actually practice in the area, give equally, if not more plausible, interpretations that counter this as to the impact on suits against BP. As such, combined with the timing issues that implies tactical desperation, whether it makes a point valid enough to decide the entire fate of the bill is questionable.
The same applies concerning the opinion of Atty. Gen. Buddy Caldwell, solicited by Gov. Bobby Jindal, who only went so far as to say the law would create uncertainty about that question. However, Caldwell’s motives also are suspect because of his history of favoring trial lawyer interests, which has cost the state money and in part caused him to draw an opponent for reelection next year.
Yet suppose, for argument’s sake, even as Caldwell’s decision was shaped by a need to appeal to his power case, that the lawyers inserted their ideological agenda into their analysis, and that the special interests supporting suit continuation want to enrich themselves with money and/or power as a consequence, that they were correct about the impact of the bill. Would this support their contention that therefore the best course of action is to veto it and perhaps try again in the future?
Analysis proves otherwise. Even if an activist court ruled against the bill’s champions’ legislative intent and said some local government suits would have to end as a result, relief by these agencies could be sought in other ways, such as by federal statute or by asking the Attorney General to use his powers under Art. IV Sec. VIII of the Constitution to intervene on each of their behalves. And to get to this point would take lots of time, so if it came to that, by then the Legislature would be back in session and ready to legislate a solution. Even under the worst scenario, eventually all of the BP suits can be restored at minimal cost and distraction.
Contrast this with the option of vetoing. For a year more taxpayer dollars would continue to be wasted by the SLFPA-E because of a contract it cannot renege upon, if it even has standing to bring such a suit. Defendants also would waste money in defense, passing on the costs to consumers. The state’s own restoration efforts would face distraction if not conflict even though the suit on merits is a longshot to win. The only guaranteed winners with at least a year’s delay of reform are trial lawyers.
Somewhat lost in the argument whether Jindal should veto is the perfect should not be the enemy of the good. Vetoing allows a situation detrimental to the state and its people to continue. At worst, failure to veto causes minor inconvenience. The obvious good here is cutting off the present lawsuit and potential future similar overreaches of government power. Jindal needs to sign into or let this bill become law.
Posted by Jeff Sadow at 11:32