Everything you need to know about the lawsuit bill

Lamar has you covered.

That is a comprehensive article by Lamar. It doesn't miss a beat. But perhaps its most crucial observation comes here.

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.

When the Attorney General expressed his doubts about the bill earlier this week, the reaction of Jindal's legislative allies who pushed it through appeared to indicate that they had only a vague conception what was in the bill in the first place. Robert Adley and Bret Allain's comments basically boil down to, "Well why didn't you tell us any of this stuff before?" Now we know why that is.  Most of our legislators don't seem to really know or care what they're doing beyond just following orders.

Expiration date

One thing that's come out of this is we can now assume the shelf life of your typical "good government reform" effort is about 8 years.

The political independence of these two regional flood protection authorities relies hugely on their status as political subdivisions. They are units of local (not state) government. They serve our metropolitan area flood protection needs and are no longer controlled by the governor, as metro-area levee boards were pre-Katrina.

These repeated legislative assaults on the political independence of the flood protection authorities would move them away from the protections of local government, weakening them by treating them as state agencies subject to the governor’s control.

That’s not what Citizens for 1 Greater New Orleans fought for in 2006. That’s not what Louisiana voters approved when they passed the 2006 constitutional amendment.

But that is what SB 553 is now trying to accomplish, by chipping away at the authorities’ powers and treating them differently from other levee districts and political subdivisions in Louisiana.

Political scientists will thank us for this measurement tool.  We should give them a name for this unit that honors its discoverer.  We could call it a Jindal but that's already the amount of time a sitting governor spends out of state campaigning for President.  "Adley" has a nice ring to it, though.  One Adley = about 8 years.

Robert Adley likes the giggles

Senator Adley is co-sponsoring a bill in the Louisiana Legislature introduced by J.P.Morrell that would decriminalize marijuana possession.

Sponsored by state Sen. J.P. Morrell, the bill would make possession of marijuana a misdemeanor punishable by up to six months in prison. Under current law, first-time marijuana possession is a misdemeanor; subsequent charges are felonies. The maximum sentence for the third offense is 20 years in prison.

A few weeks ago a less good bill in the House which would have kept the felony charge but reduced the proscribed sentence was deferred, supposedly because Austin Badon forgot to call the Sheriffs Association ahead of time to ask them if it was ok.

The Sheriffs don't like this bill either, of course. But it's worth noting that several conservatives like Senator Adley do.

Referring to Morrell’s bill and the state’s budget problems, Adley said, “We can’t fill up the jails on simple possession charges. We don’t have the money to keep them.”

Adley said that smoking marijuana as a Marine courier in Vietnam during the 1960s has led him to conclude that the dangers of the drug are overhyped. “People were better off smoking it than drinking alcohol,” he said. “They just got the giggles. The more whiskey they drank, the meaner they got.”

The Senate bill goes before committee on Tuesday.  Who knows, maybe it will do better than the Bible bill did today.

If it somehow manages to become law, though, it will be interesting to see how Chief Serpas's statistics-focused NOPD handles it.  Serpas and DA Cannizzaro have previously announced their intention to arrest fewer people on simple possession charges. But, as long as the criminal penalties still exist in statute, those charges can and have been pressed.

Recently Serpas told WGNO he was most worried about encountering marijuana users in the context of.. what else.. one of his renowned traffic checkpoints.

NOPD Police Chief Ronal Serpas says whatever lawmakers decide it’ll be up to law enforcement officers to enforce the changes.

“Marijuana, alcohol, any kind of synthetic drugs, they affect the way people drive and that’s one of the things we’re most concerned about is impaired driving.”

Serpas says he's concerned about impaired driving and I guess we'll take his word for that.  Last year the Times-Picayune reported that, while DWI arrests are way up under Serpas, the rate of traffic accidents due to driver impairment is unchanged. But whether the chekcpoints actually make the roads safe isn't important.  The pretext they provide officers to conduct arbitrary stop-and-searches, on the other hand, sure is a neat bonus. 

Here's a recent Democracy Now! interview with Matt Taibbi. His new book is about contrasts between the way the US justice system treats the superwealthy as opposed to.. pretty much everyone else. In the interview here he's talking specifically about how the drug laws can be used to intimidate people in absurd ways. 

MATT TAIBBI: So, HSBC, again, this is one of the world’s largest banks. It’s Europe’s largest bank. And a few years ago, they got caught, swept up for a variety of offenses, money-laundering offenses. But one of them involved admitting that they had laundered $850 million for a pair—for two drug cartels, one in Mexico and one in South America, and including the notorious Sinaloa drug cartel in Mexico that is suspected in thousands of murders.

And in that case, they paid a fine; they paid a $1.9 billion fine. And some of the executives had to defer their bonuses for a period of five years—not give them up, defer them. But there were no individual consequences for any of the executives. Nobody had to pull money out of their own pockets for permanently. And nobody did a single day in jail in that case.

And that, to me, was an incredibly striking case. I ran that very day to the courthouse here in New York, and I asked around to the public defenders, you know, "What’s the dumbest drug case you had today?" And I found somebody who had been thrown in Rikers for 47 days for having a joint in his pocket. So—

AMY GOODMAN: And that’s—is that even illegal?

MATT TAIBBI: No, in New York City, actually, it’s not illegal to carry a joint around in your pocket. It was decriminalized way back in the late '70s. But with part of the now past stop-and-frisk, what they do is they would stop you, and then they would search you and force you to empty your pockets. When you empty your pockets, now it's no longer concealed, and now it’s illegal again. So they had—in that year, they had 50,000 marijuana arrests, even though marijuana—having marijuana was technically decriminalized at the time.

So, my point was: Here’s somebody at the bottom, he’s a consumer of the illegal narcotics business, and he’s going to jail, and then you have these people who are at the very top of the illegal narcotics business, and they’re getting a complete walk. And that’s just totally unacceptable.

Serpas's sobriety checkpoints aren't NOPD's only answer to stop-and-frisk.  Sometimes, they randomly stop bicyclists too.  Which is what happened to the subject of the lede to the Lens article we began this post with. 

Bernard Noble was visiting his father in New Orleans three and a half years ago when two cops spotted him riding a bicycle. They stopped Noble, frisked him and found a small amount of marijuana — the equivalent of two joints.

Noble, a 47-year-old truck driver and father of three, is now serving a 13-year prison sentence after a jury found him guilty of marijuana possession. It was his seventh drug possession conviction in Orleans and Jefferson Parish.  He originally was sentenced to five years, but Orleans Parish District Attorney Leon Cannizzaro Jr. appealed and got a longer sentence.

Since Serpas' policy response to the bills in the legislature appears to be a redoubling of his efforts at traffic enforcement, it isn't hard to imagine more scenarios like these even if marijuana possession is partially decriminalized in Louisiana.  It won't be, so we don't have to worry too much about that particular irony.  But between a DA holding out for longer sentences in possession cases despite his own stated policy and the impaired drivers who are actually  bicyclists, there's plenty of that to go around. Perhaps enough to inspire a giggle from Senator Adley when he's in the right state.

Incentives

Yesterday the legislature passed a bill that (theoretically) could put a stop to the SLFPAE's lawsuit against the oil and gas industry over damage it has done to the Louisiana coast.

State Sen. Robert Adley, R-Benton, is sponsoring the bill, as well as a few more that seek to derail the lawsuit filed last summer by the Southeast Louisiana Flood Protection Authority - East, or SLFPA-E against 97 oil, gas and pipeline companies. The east bank levee board is seeking damages from industry for decades of environmental harm that dredging and other pipeline activities imposed on Louisiana's coastline.

But Gov. Bobby Jindal is fiercely opposed to the lawsuit. After ensuring its strongest proponents were removed from the levee board, Jindal turned his eye to killing the suit legislatively. Adley agrees with the governor that the board illegally entered into a contingency fee contract with legal firm Swanson Jones, without seeking the proper approval or making the terms of the terms of the contract public.

Jindal and Adley and others have argued that the lawsuit interferes with the state's own supposedly good faith negotiations with oil and gas over coastal restoration funds.

Which brings up the question, what are the industry's incentives with regard to coastal loss?  What do they get, for example, if nothing is done about it?

A set of laws unique to Louisiana allows the state to claim the minerals found under any navigable body of water. That has troubling implications for landowners in Vermilion Parish and every other coastal region of the state. The laws mean that as more land becomes submerged under the waters of the Gulf of Mexico each year, more and more money that once flowed from oil and gas drilling companies to the bank accounts of landowners now flows directly into the coffers of the state.

Landowners here say the law not only hurts their pocketbooks, but also creates a disincentive for Louisiana’s government to care about coastal areas and repair and maintain wetlands. The theory goes that if the cash-strapped state can make money off gaining increased mineral rights, then it has no reason to help keep privately owned bayou property from going underwater.

Facts are stupid things

Who needs facts when you have all the money in the world?

The environmental volunteers may be heartened by a first legal skirmish last week that went badly for their nemesis, the Louisiana Oil and Gas Association. It had petitioned a district court in Baton Rouge to block the lawsuit on the grounds that Attorney General Buddy Caldwell illegally authorized the Southeast Louisiana Flood Protection Authority-East to hire outside attorneys on a contingency fee basis. But in a deposition with lawyers for the attorney general and the flood protection authority, Don Briggs, the oil and gas association's long-time president, repeatedly failed to offer any evidence to back up his claims that the state's legal environment was causing companies to pull up their rigs and leave. He even admitted to not having read the lawsuit. Clearly, he was over-matched by coming unarmed with facts to a word fight with lawyers. Big mistake.

Yet, Briggs and his members still maintain that the crux of their suit is valid, that Caldwell misread the law in allowing the flood protection authority to contract with outside counsel instead of his representing the authority himself. The judge in the case will interpret what the law means, but, regardless, the real fight will come later at the Capitol over an attempt to change what the law says.

Leading that charge will be Sen. Robert Adley, R-Benton, among the most tenacious of legislators who goes into no debate unprepared. He owns a company that manages the distribution of natural gas to municipalities and gas districts, so he is inclined to see the industry's view.

Adley's bill will make the SLFPAE lawsuit altogether illegal thereby voiding whatever facts anyone thought might be relevant in the first place. 

Gret Stet of Texaco

John Barry speaking Monday to the Baton Rouge Press Club:

Barry summed up opposition to the lawsuit against the oil and gas industry with one word: Politics.

“People used to say the flag of Texaco flies over the State Capitol. People have to ask themselves if that’s still true,” he said during a lunchtime gathering.

Barry did not comment on whether the State of Texaco could ever have been "bigger than Texas." But the implication that the state government is wholly owned by oil and gas could not be more appropriate given the lengths the Governor and his allies in the Legislature have gone to to shut down the Flood Protection Authority's lawsuit.  In a Gambit column this week, Clancy Dubos doesn't pull any punches on this point.

No one should be surprised by Jindal’s duplicity. He has never let irony, or truth, or even a fundamental sense of right and wrong stand in the way of his ambition. And right now his ambition tells him to do whatever he can to ingratiate himself to the energy companies that he hopes will help bankroll his future political moves.

In late July, SLFPA-E sued 97 oil, gas and pipeline companies that have carved up Louisiana’s coast for the past eight decades, seeking to make them pay their fair share of the costs of repairing the marshes and protecting southeast Louisiana against the increased risks of flooding. Ever since, Jindal and his wetlands czar Garret Graves have been trying to put the kibosh on the lawsuit.

They tried to intimidate commissioners, who voted unanimously to file the lawsuit, into changing their minds. That didn’t work. Jindal now hopes to replace commissioners whose terms have expired, particularly historian John Barry, who has been outspoken in favor of the litigation. Barry, who wrote Rising Tide, is one of the nation’s leading authorities on flood control policy.

To be certain, the lawsuit is a long shot.  But it's a necessary long shot given the desperate Hail Mary situation South Louisiana finds itself in with regard to the  safety of its residents and the future of its coast.  The Lens' Bob Marshall explained shortly after the suit was filed.

Decades of drilling and dredging by the oil and gas industry have contributed to the dramatic loss of wetlands in southeast Louisiana, which help reduce storm surges pushing against the region’s flood protection levees. About 2,000 square miles of land have disappeared in Louisiana; various studies say the oil and gas industry is responsible for anywhere from 16 to 50 percent of that.

The Southeast Louisiana Flood Protection Authority-East claims that the loss of wetlands in its jurisdiction means levees and floodwalls must be built higher, resulting in a dramatic increase in their costs for building and maintaining levees and floodwalls.

The agency wants 97 companies named in the lawsuit to repair the damage, and if that’s not possible, to help defray the cost of flood protection now and in the future.

Back in February, Marshall reported on the dramatic costs the SLFPA-E was facing down as it assumed responsibility for maintaining the new and complicated flood control system from the Army Corps of Engineers.

The costs include $14 million for annual operation and maintenance of the system – a figure that does not include future levee raising — as well as $20 million a year for the next 30 years as part of the state’s cost-share for the whole project.

If the flood protection authority can’t find a fix, officials said, the only alternative would be bond issues at rates that could be ruinous to some communities.

“We’ll soon be facing a $600 million question,” the authority’s vice president, John Barry, said with reference to the 30-year cost sharing burden. “Who is going to pay?”

The lawsuit proposes that instead of placing the burden of financing the ever-increasing expense of protection on the public debt of residents, why not seek recompense from the parties responsible for putting them in this position in the first place?  It's a simple and desperate call for justice.

But no one is living under the illusion that's really within reach. 

Last week's legislative hearing demonstrated the oil industry's muscle pretty plainly.

After the meeting, Adley told reporters there wasn’t anything the Legislature could do about the suit until the next session, which begins March 10.

He and Rep. Jones both said, however, that they strongly expect multiple lawmakers to file bills seeking to either limit the authority of the levee boards or block this specific suit.

Meanwhile, Louisiana's Master Plan for coastal restoration is largely dependent upon a favorable result of the current Clean Water Act litigation against BP stemming from the 2010 Macondo disaster.  In May, The Lens hosted a forum dramatically but aptly titled "Last Call For Louisiana's Coast." There Barry said bluntly, "Were it not for the BP spill, we would not have any dollars coming" in time to even get started with the necessary work of saving what's left of the wetlands.

Now even that assertion seems hopeful. Anyone who has been following BP's increasingly defiant stance recently can't expect the state will reap an award anything near sufficient to its needs from those proceedings... certainly not in time to do what desperately needs to be done with it anyway.

Simply put, "Last Call" means it's time to start trying whatever desperate move might be left available before it becomes time to pack up and float away.  And taking 97 oil companies to court is about as desperate a move as one can make.  But even then, Barry has made it clear that the suit is an opportunity for negotiation.

I ask the governor this: Why not solve the problem? Our suit addresses only New Orleans. The entire Louisiana coast needs help. The governor has been good for the coast. I ask the governor to be great for the coast. I ask the governor to negotiate a solution acceptable to everyone. I would support this. I hope the governor and the Legislature would, too.

Of course, any good faith negotiation would have to start with taking the Texaco flag down off the Capitol building and running the Pelican back up in its place.  But even that may be too much to hope for.

Sucking harder than BP's crazy straw

State Senator Robert Adley

The Senate Commerce Committee dispensed this afternoon with a bill that would have effectively shut down the Tulane Environmental Law Clinic, putting an end to one of the session's most controversial proposals.

...

Adley described Tulane as "a billion-dollar industry that recruit out-of-state kids to come in and sue us."

We're real sorry BP got oil all over your icky corporate shield law, Bobby. Go find something to complain about other than those darn meddling kids.

Update: Besides Adley should know that Tulane is really all about recruiting out-of-state kids to come in and beat the crap out of us in baseball.