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“A lot of people mentioned to me how omnipresent BP lobbyists were, more than the other major oil companies were (though all of them showed plenty of interest), so much more that it got a lot of people wondering, `What’s in the bill for them?’ It certainly got us wondering.” – John Barry, June 5, 2014

“As our analysis shows, SB 469 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 SB 469 – a fact strongly suggesting that the now known consequences of SB 469 were not unintended at all.” – Robert Verchick, June 4, 2014

“They (BP) didn’t lobby me, because they knew my position. But they lobbied several of my colleagues.” – State Representative John Bel Edwards, June 5, 2014

*****

In the late evening of April 20, 2010, Ryan Chaisson, Wes Bourg, Dustin King, and Albert Andry- a group of friends who called themselves the Knight Ryderz- were out fishing in the Gulf of Mexico. They steered their boat ten miles south of the Pass-a-Loutre Wildlife Management Area, fifty miles off the Louisiana coast, alongside the leg of a massive offshore oil rig. There, under a waxing crescent moon, a canopy of stars, and the blinking lights of nearby rigs, the four men witnessed an explosion that would set into motion the worst environmental disaster in American history and the largest oil spill in the history of the world. Shortly after the explosion, they moved to a safe distance and recorded this video.

Eleven people died that night, and for the next 87 days, more than five million barrels of oil gushed into the Gulf of Mexico, ravaging the already fragile coastal ecosystem, poisoning and killing marine life, and nearly crippling Louisiana’s seafood industry.

Four years later, BP still hasn’t paid billions in damages owed to families, businesses, and communities devastated by their negligence. Four years later, oil continues to wash ashore, and four years later, there are reports that suggest people are still getting severely sick due to their exposure to the dispersant BP used to “clean up” the oil. Today, literally today, federal investigators finally released a report on the cause of the spill- the failure of the blowout preventer, a critical piece of safety equipment.

*****

 DSC0613  
Photo by John Mosier  

Foster Campbell, a former State Senator who is currently serving on the Public Service Commission, once famously quipped, “The flag of Texaco flies over the Louisiana State Capitol.” Texaco has since merged with Chevron, but as this year’s legislative session proves, Campbell’s joke still works. All you need to do is replace Texaco with BP.

For nearly a century, Louisiana has been involved in a torrid, abusive, and complicated love affair with the oil and gas industry. The industry generates an enormous amount of wealth, provides tens of thousands of good-paying jobs, and represents the state’s single-largest economic engine. But it’s also at least partially, if not principally, legally responsible for the destruction and degradation of the state’s coast- the marshland and barrier islands that serve as the first and most critical line of defense against hurricanes.

For far too many in Louisiana, the environment is a mushy, amorphous, liberal issue. Even when scientists explain the issue in colloquial terms most people should understand (i.e. “Louisiana is losing a football field of land every hour”), it’s difficult to conceptualize. After all, you can’t sit outside and watch as an entire football field is, literally, swallowed back into the ocean in only an hour. But even if you could, that may still not be sufficient enough to convince the current regime of science deniers occupying the Governor’s Mansion and the tables at the Baton Rouge Ruth’s Chris Steakhouse.

Money, on the other hand, is immediately tangible. It talks, and it walks. Money buys access, influence, and power, and much like the rest of the country, in Louisiana, it also buys politicians.

*****

Last July, the Southeast Louisiana Flood Protection Authority- East (SLFPA-E) filed a landmark lawsuit against 97 different oil and gas companies “alleging that the conduct of those companies in their operations in a ‘buffer zone’ of marshes and wetlands between SLFPA-E’s levee system and the Gulf of Mexico has caused that wetland system to degrade and disappear, making SLFPA-E’s mandated role of storm surge protection a more difficult and expensive task.” Put more simply, the SLFPA-E sued these companies for destroying the environment.

The SLFPA-E had a few important things going for them: The law, the history, and the science. Environmentalists and legal scholars praised the authority’s bold decision to finally hold these companies accountable for the billions of dollars in damages they illegally and negligently inflicted.

But the oil and gas industry had an ace up its sleeve: Louisiana’s politicians were already on their payroll. The Texaco corporate logo may have changed, but the flag of Big Oil still soars high above the House That Huey Built.

Almost immediately, Governor Bobby Jindal, the recipient of more than $1 million in campaign contributions from the oil and gas industry, announced his vehement opposition to the SLFPA-E’s lawsuit, arguing, among other things, that it was an illegal usurpation of his authority (not true), that it was merely an attempt by greedy trial lawyers to earn massive amounts of money from these companies (not true, but even if it were, Jindal unwittingly acknowledged that the oil and gas companies were culpable and likely to lose), that these lawyers entered into an illegal agreement with the authority (not true, as the courts subsequently made very clear), and that it undermined the state’s long-term coastal restoration plan (once again, not true; if anything, it bolstered the plan).

Although it was established as an apolitical authority of coastal restoration experts and professionals, through a referendum supported by nearly 80% of Louisiana voters, Governor Jindal made it abundantly clear: From here on out, if you wanted to serve on the SLFPA-E, your political loyalty to him (and by extension, to the oil and gas companies that finance his campaigns) was more important than anything else on your resume.

The powerful Louisiana Oil and Gas Association (LOGA) launched a full-scale astroturf campaign opposing the lawsuit, complete with phony websites and stacked town hall meetings. LOGA’s campaign was informed, almost entirely, by a thoroughly debunked study about legacy lawsuits (which, notably, have nothing to do, substantively, with the SLFPA-E’s suit) written by LSU Professor David Dismukes.

Clancy DuBos of The Gambit reports, “LOGA took it a step further and filed a lawsuit challenging the legality of SLFPA-E’s contract with its legal counsel. The contract includes a handsome contingency fee. LOGA’s lawsuit specifically claims the SLFPA-E suit would cause ‘irreparable injury’ to LOGA members and have a ‘chilling
 effect on the exploration, production, development and transportation’ of oil and gas in Louisiana.” LOGA ultimately lost its lawsuit; there was nothing illegal or improper about the ways in which the SLFPA-E hired its legal counsel. But because of the case, thankfully, we now have the transcript of LOGA President Don Briggs’ deposition. Quoting again from The Gambit:

For example, Briggs was asked in a Feb. 20 deposition if he had “any facts or information” to back up his opinion that oil and gas exploration did not contribute to coastal land loss. He answered, “No. … Nothing.”

That was just the start. Consider the following exchanges in Briggs’ deposition:

Question:·Is it your opinion that oil and gas companies are leaving Louisiana because of the threat of lawsuits?

Briggs: Yes.

Question: Which oil companies have left Louisiana because of lawsuits?

Briggs: I don’t know.

Question: Do you have any facts or data to support your opinion?

Briggs: No.

Question: Is it your belief that oil and gas companies are not coming to Louisiana because of the threat of lawsuits?

Briggs: Yes.

Question: Which oil companies have decided not to drill in Louisiana because of the threat of lawsuits?

Briggs: I don’t know.

Question: Do you have any facts or data to support your opinion?

Briggs: No.

Briggs’ deposition contains many more admissions, including one that he hadn’t even read the SLFPA-E lawsuit.

*****

Because Bobby Jindal couldn’t stop the lawsuit through an executive order and because Don Briggs and the insiders he represents couldn’t convince the courts to agree with anything he argued, they turned to their trusted friends in the Louisiana legislature.

Not surprisingly, despite a few false starts and failed attempts, the legislature eventually passed SB 469, a bill that was originally written and sponsored by State Senator Robert Adley, an oilman himself who has received nearly $600,000 in campaign contributions from the oil and gas industry. After Adley’s bill failed, in a move that would seem sneaky and skilled if it hadn’t been so sloppy and blatant, it was subsequently taken up by State Senator Bret Allain, whose torturous misunderstanding of the law is actually less offensive than the fact that he sued (and settled with) an oil and gas company for the very thing his bill now seeks to prohibit.

On May 31st, Loyola Law Professor Robert Verchick sent Governor Bobby Jindal a detailed legal memorandum, urging him to veto SB 469. But, as Verchick made clear, his concerns had nothing to do with the merits or the politics of SLFPA-E’s lawsuit. Instead, Verchick called attention to the ways in which the bill’s vague, ambiguous, and overly broad language could jeopardize and potentially invalidate an enormous range of otherwise legitimate pending and future claims for damages against oil and gas companies. Most importantly, Verchick notes that SB 469, if signed into law, would likely be used by BP to reduce their financial and legal exposure to damages resulting from the 2010 Deepwater Horizon disaster.

As of this writing, 79 legal scholars from all over the country have signed onto Professor Verchick’s memorandum.

Quoting from an earlier report by Mike Hasten of Gannett (bold mine):

A Loyola law school professor and several professors from other law schools issued a statement that the bill could jeopardize claims of parishes and individuals seeking compensation for damages from the massive BP oil spill in the Gulf of Mexico.

Jindal said he agreed to delay signing because “we’re certainly not going to do anything to impede our people’s ability to file claims in regard to the explosion.”

However, the governor said he does not believe the bill would affect those lawsuits because they are filed in federal court, and the bill deals with state laws.

Jindal acknowledged that oil industry attorneys were involved in drafting the bill.

The fox, in other words, is guarding the hen house. Oil and gas industry attorneys weren’t merely “involved;” they wrote the bill. According to those who were there, lobbyists and lawyers for BP seemed to play an outsized role.

Earlier tonight, John Barry, the former chairman of the SLFPA-E and the internationally acclaimed author of Rising Tide: The Great Mississippi Flood of 1927 and How It Changed America, told me, “A lot of people mentioned to me how omnipresent BP lobbyists were, more than the other major oil companies were (though all of them showed plenty of interest), so much more that it got a lot of people wondering, ‘What’s in the bill for them?’ It certainly got us wondering.”

I also spoke with State Representative John Bel Edwards, who echoed Mr. Barry’s concerns. Oil and gas lobbyists already knew Representative Edwards was opposed to the legislation, he said. They didn’t even waste their time trying to convince him otherwise. But lobbyists, particularly lobbyists associated with BP, spent a lot of time with some of his colleagues.

Despite the fact that 79 leading legal scholars from all over the country and Louisiana’s own Attorney General are publicly urging the Governor to veto the bill, Jindal’s executive counsel, Thomas Enright, suggested on Wednesday that the bill would be signed into law. Quoting again from Mike Hasten of Gannett (bold mine):

Thomas Enright, Jindal’s executive counsel, dismissed (Attorney General) Caldwell’s recommendation in a Wednesday afternoon letter that says the Legislature fully debated the bill, and that local governments had the opportunity to amend it if they were concerned about its impact on their ability to sue.

….

Enright maintains in his letter, “Simply put, this piece of legislation was fully debated, was the subject of intense media coverage throughout the session and now represents the Louisiana Legislature’s intent to make absolutely clear that irresponsible lawsuits, such as the one filed by SLFPA-E, are unwelcome in this state.

Even if one agrees that SLFPA-E’s lawsuit was irresponsible, that hardly justifies enacting an even more irresponsible law.

Professor Verchick responded to Enright’s letter and skillfully and methodically dismantled his argument. Quoting in full (bold mine):

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 (now 78) 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 media coverage 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.

So far, Jindal’s allies have struggled to come up with a convincing response. Quoting again from Mike Hasten (bold mine):

Don Briggs, president of the Louisiana Oil and Gas Association, objected before The Daily Advertiser’s editorial board Wednesday to complaints that the legislation, if signed into law, would complicate or hinder claims against BP for the 2010 oil spill.

“Twenty three lawyers, judges and professors from California to Florida were somehow able to come together on a seven-page dissertation on what SB 469 does in less than 24 hours after it passed,” Briggs said. “Has anyone seen 23 lawyers agree on anything? Much less in 24 hours over email? If it doesn’t smell fishy to you, it certainly should.”

Again, notably, Professor Verchick’s memorandum now has the endorsement of nearly eighty “lawyers, judges and professors from California to Florida.” Maybe it is surprising to people like Mr. Briggs, a man who has repeatedly and, at times, hilariously demonstrated his ignorance of the law, that legal experts can agree on an issue in less than 24 hours. To me, if anything, it’s not evidence of some nefarious conspiracy; it’s just proof that the bill is clearly flawed. Unless Mr. Briggs can produce documentation of a secret, national network of law professors and judges who have a financial interest in defeating SB 469, I think it’s safe to say the only thing that smells “fishy” here is the outsized role he and his fellow industry lobbyists (that is, the people who actually do have a financial interest) played in crafting legislation that could potentially keep oil and gas companies off the hook for billions in damages. Continuing (bold mine):

Stephen Waguespack, president of the Louisiana Association of Business and Industry, said he considers the effort to get to Jindal to veto the bill is the SLFPA-E attorneys “doing everything they can to save the contract. The opponents did not raise a lot of issues in the session. It’s amazing how well thought out it is 48 hours after the session.

Prior to becoming the President of LABI, Stephen Waguespack was Bobby Jindal’s Chief of Staff. If Mr. Waguespack were serious about his new job, he would have done his homework. On April 8th, the attorneys representing the SLFPA-E sent out a press release captioned:

Attorneys Representing  Southeast Louisiana Flood Protection Authority – East Put The Ball in Oil and Gas Companies’ Court – Offer To Tear Up Contract

Under New Terms, Public Would Not Pay a Penny for Lawyers’ Fees

Suffice it to say, the attorneys’ offer went nowhere, and Governor Jindal, Mr. Briggs, and Mr. Waguespack, along with a handful of conservative commentators, continue to mislead the public, relying on lazy and hackneyed cliches about the evils of trial lawyers in order to score cheap political points. It’s not folksy; it’s dishonest and hypocritical. That said, Governor Jindal is imminently qualified on the subject of bad lawyers; since he was elected, he’s hired and enriched more bad lawyers than anyone else in the State of Louisiana.

But if you care about Louisiana, that’s not what should make you livid. You should be livid about the ways in which BP, a company responsible for the largest environmental disaster in American history, bought off an incompetent legislature and an absentee Governor and somehow managed to help write and pass a bill that, ostensibly, was about killing one lawsuit but, effectively, is about much, much more. Quoting from Professor Verchick’s memorandum (bold and underline mine):

As stated above, these open questions present a significant litigation risk to the governmental entities’ BP claims, as well as for claims from future spill events. While it is not a given that this risk will ultimately result in a dismissal of the state and parish claims against BP under OPA, we believe that the risk creates an uncertainty and an almost-sure delay in resolution of the BP litigation that is unacceptable. A court could plausibly interpret SB 469 to dismiss or limit damage claims, now before the court, that the state and its subdivisions have brought against BP. Regardless of how the court ultimately rules, the very existence of these eventualities will devalue the plaintiffs’ settlement posture and perhaps lengthen the time those governmental entities will go without recompense for these categories of economic loss.

Should BP raise defenses based on SB 469 and succeed even partially, the results would needlessly and disastrously deprive Louisiana and its communities of precious revenue and cause considerable embarrassment for state leaders. The legal issues we raise here are real and unnecessary to take on. It would be foolish to bet tens of billions of dollars on their outcome.

*****

Former Louisiana Governor Edwin Edwards spent eight years in federal prison for accepting payments, totaling a few hundred thousand dollars, from would-be casino operators who sought his mostly unsuccessful “help,” after he had returned to his law practice, in receiving licenses from a state board comprised largely of people he had previously appointed. Former New Orleans Mayor Ray Nagin was convicted of using his position to steer business to a struggling granite and stone company he owned with his sons and taking bribes, in the form of paid vacations, meals, and cell phones, from people seeking contracts or incentives from the city.

For many, these crimes are unforgivable, a complete and total dereliction of duty, a breach of trust, and for many, these two men, along with former Congressman William Jefferson, will forever be remembered as criminals.

If Bobby Jindal signs SB 469 into law and if BP does what nearly eighty of the country’s most preeminent legal scholars anticipate they will do- with a law that BP’s own lobbyists likely helped to write, Governor Jindal would have betrayed the people of Louisiana far more than Edwin Edwards or Ray Nagin or William Jefferson ever did. Edwin’s deals, C. Ray’s vacations, and Dollar Bill’s $90,000 in the freezer would all pale in comparison to the $1 million that oil and gas companies have already deposited in Jindal’s campaign bank account, the $600,000 they’ve given, so far, to State Senator Robert Adley, and the millions more they’ve contributed to their other friends in the legislature.

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