Swamp Stomp
Volume 15, Issue 5
On December 3rd, 2014, 19th Judicial District Court Judge Janice Clark declared that a law passed in 2014 to block the east bank levee authority’s wetlands damages lawsuit against more than 80 oil, gas, and pipeline companies is unconstitutional. Jimmy Faircloth, however, the attorney who lobbied the 2014 Legislature on behalf of Act 544 for the governor’s office, filled paperwork with the Louisiana Supreme Court to uphold the constitutionality of the law.
The law was initially passed in response to a suit that the levee authority filed in 2013 that would force energy companies either to repair wetland damage or to pay for restoration projects or additional storm surge protection. Since it was first filed in 2013, several companies have been removed from the suit, but 86 corporate defendants remain.
Mike Reed, Jindal’s communications director, commented, “We are pleased that the ruling has been appealed and that the constitutionality of the statute is being defended.”
Not everyone is as confident as Reed that the law will ruled as constitutional, however. Gladstone Jones, the Southeast Louisiana Flood Protection Authority-East, said that he is certain that the Supreme Court will agree the law is unconstitutional.
Before adding that he is “confident” that the law “will continue to be found to be inapplicable and an unconstitutional overreach,” Jones said, “This entire effort to derail this lawsuit and making oil companies fix what they broke is driven by the governor’s frivolous presidential aspirations to please his potential donors—the oil industry.”
Clark declared that the law did not apply to the levee authority, because it “is an independent political subdivision and not a state agency.” Her decision was made based on the language used in the document; as written, the language in the law means that the law does not apply to independent subdivisions such as the levee authority.
Furthermore, Clark ruled that the law violates the Louisiana Constitution’s “public trust doctrine” contained in Article 9, Section 1, since the law attempts to block the levee authority’s ability to “redress issues with coastal restoration particularly insofar as those are related to hurricane protections.”
Article 9, Section 1 of the Louisiana Constitution states: “The natural resources of the state, including air and water, and the healthful, scenic, historic, and esthetic quality of the environment shall be protected, conserved, and replenished insofar as possible and consistent with the health, safety, and welfare of the people. The legislature shall enact laws to implement this policy.”
According to Clark, such a law also violates the Constitution’s restrictions on the Legislature’s handling of “special laws” that deal with local issues, because the language used was not appropriately advertised prior to the legislative session.
Currently, the suit is being fought in federal court in New Orleans, after the companies in question successfully argued that the addressed issues are federal in nature. A ruling is yet to be made, but U.S. District Judge Nanette Jolivette Brown has heard arguments from both sides regarding whether or not to dismiss the suit.
Attorneys representing the levee authority have notified Brown both of the governor’s office’s appeal to the state Supreme Court, and state Attorney General Buddy Caldwell’s own questions regarding the constitutionality of the law.
Caldwell’s concerns are extremely similar to those raised by Clark. In a memorandum he filed with Clark, Caldwell said that “the retroactive application of Act 544, at a minimum, raises problematic constitutional separation of power issues and even clearer constitutional issues” under its public trust doctrine provisions.
A verdict is expected soon, and the outcome may prove significant both to Jindal’s future and that of the Louisiana wetlands.