Thursday, June 5, 2014

AG recommends veto for levee board lawsuits bill ~New Orleans Advocate
~ Caldwell wrote Jindal that the bill’s wording carries “the potential for an unintended effect on the state’s, or a local governmental entity’s, claims against BP related to the Deepwater Horizon incident.” But Jindal’s top legal adviser disagreed, saying the views expressed during a Wednesday morning meeting were “the same as those offered by the opponents of the bill.” Thomas L. Enright Jr., the governor’s executive counsel, wrote Caldwell on Wednesday, “I must respectfully disagree that the proper course of action is to veto the bill.”

~Letter contradicting Thomas Enright, Governorcist Jindal’s executive counsel, from Robert R.M. Verchick Gauthier-St. Martin Eminent Scholar Chair in Environmental Law, Loyola College of Law

Dear Mr. Enright,

I have obtained a copy of your letter of June 4, 2014, addressed to Attorney General James D. Caldwell, which you furnished to the media. While I understand your position, I find your reasoning unpersuasive and, in some cases, based on inaccurate facts.

First, you write that the reasons set forth by the Attorney General for vetoing SB469 lack “specificity” as to the bill’s “unintended consequences.” To that end, I direct your attention to the legal analysis provided by my colleagues and me and encourage you to review our memorandum. That document —seven pages long and signed by more than 20 legal professors and scholars from the most prestigious law schools across the country, including our very own Loyola, Tulane and LSU law schools—reports in stark and detailed language the many ways that SB469 threatens billions of dollars worth of claims related to the BP oil spill. I’m frankly baffled at how such consequences could go ignored in the Governor’s rush to sign this bill into law. For that reason, I include a copy of our full analysis for you to review. In addition to the reasons outlined in that document, we are now also concerned, as you no doubt know, that NOAA has expressed serious questions about SB469, which could result in the loss of federal funding to protect our coast. Federal approval of the bill was never obtained as is required by federal law or even sought as of yesterday, June 3, 2014. In addition, the weakening of parish authority to protect their coastlines could lead NOAA to rescind the state’s coastal management program, depriving the state of needed federal revenue.

Second, you say, “this piece of legislation was fully debated, was the subject of intense mediacoverage throughout the session and now represents the Louisiana Legislature’s intent.” But SB469 was not fully debated. As you know, in the legislative process, discussion by the public can only take place in committee hearings. The bill was first assigned to Senate Committee Judiciary A, where it was clear the bill would have failed. When the author of the bill learned of its obvious fate, the bill was hastily moved, rewritten, and then heard in Senate Natural Resources Committee less than 18 hours later. There was next to no public notice, and debate on the bill was thus cut short. Furthermore, when the bill moved to the House of Representatives, it was assigned to the House Natural Resources Committee, instead of the Civil Law Committee where legislators skilled and experienced in the issues presented by SB469 could have addressed same. Worse, Representative Gordon Dove, Chair of the House Natural Resources Committee cut off debate.

Regardless, and contrary to the suggestion, neither legislative debate – nor media coverage – can substitute for thorough legal analysis by experts in the field. SB469 has been subject to just such an analysis, and under that analysis SB469 fails. As our analysis shows, SB469 fails to protect the local governments whose concerns your letter concedes are at issue and puts at risk billions of dollars of local government claims against BP. And, here, it should be noted that BP heavily lobbied for the passage of SB469 – a fact strongly suggesting that the now known consequences of SB469 were not unintended at all. The bill may even fail to achieve its original goal— termination of the SLFPAE’s lawsuit. The bill says it applies only to "local government entities," a term with a specific legal meaning that does not include regional flood protection authorities or the levee districts that make up SLFPAE. And, in the one place SB469 does mention regional flood protection authorities, the bill fails to include levee districts. The
SLFPAE lawsuit is filed on behalf of the East Jefferson Levee District, the Orleans Levee District, and the Lake Borgne Basin Levee District as entities distinct from SLFPAE itself. So those levee districts' claims in the SLFPAE lawsuit could well remain untouched. In sum, SB469 fails in every regard.


Robert R.M. Verchick
Gauthier-St. Martin Eminent Scholar Chair in Environmental Law

Loyola College of Law 
New Orleans City Council asks Gov. Jindal to veto levee board lawsuit bill ~Richard Rainey