Last Friday, against the vehement and public urging of his own Attorney General and nearly one hundred of the nation’s most respected legal experts, Governor Bobby Jindal signed Senate Bill 469 into law. Quoting his press release (bold mine):
Governor Jindal said, “This bill will help stop frivolous lawsuits and create a more fair and predictable legal environment, and I am proud to sign it into law. It further improves Louisiana’s legal environment by reducing unnecessary claims that burden businesses so that we can bring even more jobs to our state. The bill will also send future recovered dollars from CZMA litigation to coastal projects, allowing us to ensure Louisiana coastal lands are preserved and that our communities are protected.”
If you’re wondering who, exactly, the law benefits, all you need to do is keep reading Jindal’s press release, which contains this amazing confession. Quoting (again, bold and italics mine):
LOGA President Don Briggs said, “The signing of SB 469 is a huge victory for the oil and gas industry as well as the economy for the state of Louisiana. We commend Governor Jindal for his leadership and support of this bill as it made its way through the process….”
As I mentioned in a previous post, SB 469 was, ostensibly, about stopping a controversial, landmark lawsuit filed by the Southeast Louisiana Flood Protection Authority-East (SLFPA-E) against 97 oil and gas companies for their role in illegally damaging and depredating the state’s coastal environment and ecosystem. But as we now know, the law is about much more than merely ending a single lawsuit by a single governmental authority.
SB 469 appears to have been written and deliberately designed by lawyers who represent the oil and gas industry in order to shield, reduce, or eliminate their clients’ exposure to civil damages on a wide range of pending and future claims, including, most notably, BP’s liability for billions of dollars in outstanding claims related to the 2010 Deepwater Horizon catastrophe. Indeed, according to people intimately involved in the legislative process, no one lobbied harder for the passage of SB 469 than those associated with BP.
With the stroke of the pen, Governor Bobby Jindal likely saved the oil and gas industry billions of dollars in damages for which they otherwise would have been legally responsible, damages that are legitimately owed to hundreds, if not thousands, of hardworking families, businesses, and coastal communities who were devastated by and continue to suffer from the lingering effects of the worst environmental disaster in American history. Governor Jindal may claim this was about ending “frivolous lawsuits” and creating a “more fair and predictable legal environment,” but unfortunately for him, the geniuses on his communications team allowed Don Briggs, the President of the Louisiana Oil and Gas Association, to tell it like it is, “a huge victory for the oil and gas industry.” To be sure, that may actually be an understatement.
This wasn’t about ending frivolous lawsuits or better ensuring a fair and predictable legal environment; it was about rigging the law in favor of the biggest, wealthiest, and most powerful industry in Louisiana (and arguably, the world).
Thomas Enright, the Governor’s Executive Counsel, argues that claims for damages against BP would not be affected by SB 469, because the federal Oil Pollution Act preempts the new Louisiana state law. Notwithstanding the irony and the hypocrisy of Governor Jindal, seemingly for the very first time in his entire career, invoking and championing the preemption doctrine, Enright may very well be correct in his analysis.
But the simple fact is: BP’s lawyers can and will argue otherwise; it’s an issue of first impression that will ultimately be determined by the courts, not by Jindal’s attorney. SB 469 provides a new and novel line of defense. Indeed, Louisiana’s Attorney General and nearly 100 legal experts from the nation’s top law schools all agree. The oil and gas industry’s lawyers know it’s true, too; after all, by Governor Jindal’s own admission, they helped write the law.
Even if Enright is, in fact, right and even if the courts eventually rule against BP, because these issues will take months, if not years, to fully resolve, Jindal’s decision to sign and enact SB 469 almost certainly reduced substantially the anticipated settlement values for thousands of Louisiana citizens. And that‘s why BP stands to gain billions of dollars. Remember, BP has enormously deep pockets; if they wanted to, they could afford to litigate these claims for the next century without ever affecting or even touching their bottom line. The average citizen, however, cannot afford and would never be inclined to wage a war of attrition against BP about the preemption doctrine as it relates to state law conflicting with the Oil Pollution Act.
Remember too, the longer the legal process, the less those who were affected and damaged by BP’s negligence can expect. In a complex case involving billions of dollars, a broadly and vaguely worded new law can have an enormous economic value.
Make no mistake: Governor Jindal understood this. As reported by Patrick Flanagan of The Independent Monthly, Nikesh Jindal, Bobby Jindal’s younger brother, “is an attorney with Gibson Dunn, one of the law firms representing BP against the damage claims… assigned to the division handling BP’s case,” a critical detail and potentially a massive conflict of interest that has never been fully explained or even properly disclosed. If Governor Jindal’s brother Nikesh didn’t explain the stakes to him, Jimmy Faircloth, Jindal’s former executive counsel and longtime confidant, should have. Quoting from The Times-Picayune (bold mine):
Also, the claim that SB 469 got a full public airing isn’t true. The bill was cobbled together late in the session by the governor’s former executive counsel, Jimmy Faircloth, and switched to a different Senate committee hours before a hearing on it. That limited public input. Mr. Verchick pointed out in a response to Mr. Enright Wednesday that the chairman of the House Natural Resources Committee also curtailed debate on the bill.
It’s worth noting that Representative Gordon Dove, the chairman of the House Natural Resources Committee, didn’t just shut off debate on the bill; he also refused to read into the record, as is customary, the names of citizens who showed up to support or oppose the bill. If he had, he would have revealed that ten times as many people, almost all of whom were either coastal activists or environmental professionals with no personal financial interest whatsoever, showed up to oppose the bill than those who showed up to support the bill, almost all of whom were being paid by organizations, agencies, and companies with a direct financial interest. (I am in receipt of this documentation and can send it upon request; I’m not posting it out of an abundance of caution, because it contains the home addresses, phone numbers, and e-mail addresses of private citizens).
Continue reading on CenLamar.com at this link.