After eight years of legal wrangling, as six coastal parishes stand on the brink of unlocking billions to repair the environmental damages allegedly caused by illegal and largely unpermitted activities of Big Oil, the state legislature considers a bill that would effectively strike down the lawsuits and throw out a breakthrough $100 million settlement already negotiated.
On Thursday, in a contentious, three-hour-long, late-night meeting, members of the Louisiana state Senate’s Natural Resources Committee narrowly advanced a proposal that would effectively end an eight-year legal battle that six coastal parishes have waged in order to hold oil and gas companies accountable for environmental damages, right as these parishes stand on the brink of unlocking billions of dollars to pay for remediation and coastal restoration projects.
“A crying damn shame, done in the dead of night,” said Ret. Lt. Gen. Russel Honoré, the no-nonsense Army veteran whose take-charge command of Joint Task Force Katrina in 2005 made him an instant folk hero in his home state of Louisiana.
Nearly nine years after retiring as the 33rd Commanding General of the First Army, the same job once held by John J. Pershing and Omar Bradley, Honoré launched the “Green Army,” a coalition of anti-pollution and environmental organizations and activist citizens. He’s emerged as one of the state’s most ardent environmental crusaders, offering a stark contrast to the stereotypical environmentalist.
For Honoré, this is a war. He’s not wrong.
The legislation at issue, Senate Bill 359, isn’t the kind of routine housecleaning lawmakers occasionally consider when an existing statute needs a little polish. Despite claims by the bill’s author, state Sen. Bob Hensgens, that it would simply “clarify” the “original legislative intent” of the state’s 1978 Coastal Zone Management Act, the legislation has nothing to do with any high-minded legal principle.
Rather, it is a brazenly obvious attempt to torpedo pending litigation against 43 separate oil and gas companies for environmental damages by stripping away the legal authority of local and parish governments and district attorneys to sue. It seeks to enshrine into law an argument that Big Oil has repeatedly lost in courts.
Make no mistake: This is a Hail Mary play designed by the Big Oil’s sprawling team of defense lawyers who have run out of tricks after eight years of billable hours spent on doing everything possible to avoid the finality of a trial verdict. Notably, only 43 of the 841 oil companies currently operating in the state of Louisiana are named as defendants in the lawsuits filed by coastal parishes, but collectively, those 43 companies have built a legal defense team comprised of 193 attorneys from 47 different law firms located in 14 different cities across six states.
Millions more has been spent by a cadre of industry front groups, lobbyists, and public relations firms on a coordinated campaign designed to blame lawsuits for threatening the future of a business that is, by its very nature, not sustainable and environmentally ruinous.
Contrary to repeated claims by Big Oil, the attorneys representing the parish governments are not working on a contingency fee basis. If this bill were to be enacted into law, the net result would actually require significant state spending in order to continue pursuing the litigation, money the state simply does not have right now. Moreover, it would almost certainly invalidate the proposed $100 million settlement agreement with Freeport-McMoRan.
Even in Louisiana, a state so obsequious to Big Oil that political candidates, particularly on the ideological right, are often reluctant to express any support for environmental issues that doesn’t involve the Second Amendment, SB359 is a uniquely crass and cynical proposal.
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Although Hensgens picked up support from 19 of his Republican colleagues in the state Senate, at least two of whom have privately gripped that they were misled into agreeing to become listed as co-authors, some of the sharpest criticism came from fellow conservatives.
“For years, Big Oil has run this state. It’s time for them to pay up,” Republican state Sen. Eddie Lambert argued during last night’s meeting.
As the meeting drew to a close, another GOP lawmaker, state Sen. Patrick Connick, denounced the scheme as outrageous, imploring members of the media to cover the story as front-page news and asking the public to call their elected officials and “raise hell.”
The meeting was contentious from the onset, when Hensgens, who serves as Chairman of the Natural Resources Committee, told the bill’s opponents that he would not allow a PowerPoint presentation that lawyers representing the coastal parishes had prepared, ruling that the presentation should have been given to committee members more than 24 hours beforehand, a decision that struck the leading plaintiff attorney John Carmouche as disingenuous, considering the rushed nature of the hearing, which took place in a room filled with empty seats due to social distancing orders amid the ongoing Covid-19 pandemic.
Considering that Hensgens ultimately allowed Carmouche to speak at length, the decision to deny the presentation, which are common during committee meetings especially when the subject at issue is controversial or far-reaching, wasn’t based on any real concerns about time constraints or logistics. Indeed, prior to the meeting, members had been well-aware that the bill’s opponents were preparing a public presentation, so it also cannot be said that anyone on the committee had been caught off-guard.
The Bayou Brief obtained a copy of the 94-slide PowerPoint, which briskly but methodically picks apart the central arguments offered by the bill’s supporters.
Although state Sen. Hensgens claimed he would not allow this presentation because it hadn’t been submitted to him at least 24 hours before the meeting on Thursday, it seems more likely that he was concerned about the slides related to a 2014 bill authored by his colleague on the committee, state Sen. Bret Allain.
When the legislature debated the bill six years ago, state Sen. Allain made a series of comments underscoring his belief in preserving the rights of district attorneys and parish governments and removed language from his original draft that would have eliminated those rights.
Allain’s bill, which was signed into law by former Gov. Bobby Jindal, actually strengthened the rights of local D.A.s and parish governments to sue for violations of state-issued coastal sue permits. Instead of creating ambiguities, which is what supporters of Hensgens’s proposal claim in justifying the need for new legislation, Allain ensured there could be no confusion, a point that was subsequently reinforced in a pair of legal rulings, in both federal and state courts.
Indeed, as Federal District Judge Jay C. Zainey held in Parish of Plaquemines v. Total Petrochemical & Refining, the law wouldn’t make any sense unless local governments could sue.
“Given that this statute directs how local governments must use recoveries on state permits, and given that it is not creating any new rights, the statute can only have meaning if local governments could already sue state permit violators,” Judge Zainey.
There is another unseemly aspect to last night’s theater: The bill would have never advanced out of committee had it not been for the vote of at least one member, state Sen. Sharon Hewitt, with a direct pecuniary interest in a favorable outcome for the defendants.
Although Carmouche mentioned her by name during a subsequent discussion, he noted that a member of the committee is married to a top engineer at one of the companies named in 17 pending lawsuits and that this member’s husband could presumably even be called as a trial witness.
Had Hewitt recused herself, the bill would have failed to advance due to a tied 3-3 vote.
In addition to Hewitt, another member, state Sen. Michael “Big Mike“ Fesi is the owner of a pipeline company that lists the following clients on its website:
Russel Honoré titled his most recent book Don’t Get Stuck on Stupid, and it’s a message he works into a range of subjects.
“The GOP (in Louisiana) controlled both houses and the Governor’s Mansion for eight years (under Bobby Jindal),” Honoré tells me. “Oil was $100 a barrel back then, and they still broke the state. Stuck on stupid.”
But as last night’s hearing demonstrated, not all Republicans in the state legislature are willing to look the other way, and if the fireworks on display yesterday are any indication, the industry’s defense lawyers- by promoting this legislation- may have unwittingly done the one thing they needed to avoid: Acknowledge guilt.