- Associated Press - Wednesday, December 10, 2014

NEW ORLEANS (AP) - A federal judge was asked Wednesday to determine the constitutionality of a Louisiana law designed to kill a regional flood board’s lawsuit against oil and gas companies over wetlands damage.

U.S. District Judge Nanette Jolivette Brown did not say when she would rule but indicated she might wait for the Louisiana Supreme Court to issue its own ruling on the matter in a separate but related case. That court is also expected to rule on the constitutionality of the law.

In 2013 the Southeast Louisiana Flood Protection Authority-East filed a landmark lawsuit against nearly 100 oil and gas companies over damage they allegedly caused to Louisiana’s wetlands. The authority is one of two regional boards set up by the state after Hurricane Katrina to better protect the New Orleans area from flooding. The companies face paying billions of dollars in damages if the suit is successful.

The suit argues that the defendant oil companies did not fulfill their obligations to clean up the damage caused by drilling and related activity on Louisiana’s coast.

In drilling for oil in Louisiana’s marshes and swamps, oil companies dug about 10,000 miles of canals and sucked up enormous amounts of oil and gas. Those actions and others led to tremendous land loss, according to scientists. Louisiana has lost about 2,000 square miles of coastal land and drilling has been blamed for about 36 percent of that loss.

To thwart the suit, legislators and Gov. Bobby Jindal got a law passed this year that prohibits state agencies and local governments from pursuing suits such as the one filed by the flood board.

Questions before the courts now are whether the flood board falls under the law’s description and whether the law itself is constitutional.

On Wednesday, James Swanson, a lawyer for the flood board, argued that the law is unconstitutional because it would interfere with a lawsuit well underway in the court system. He said the law, if it is allowed to stand, “would take the place of the courts” by intervening in an ongoing legal process. That, he argued, would violate the state constitution’s separation of powers.

He also argued that the law, as written, does not apply to the flood board, which he said doesn’t meet the legal definition of a state agency or a local government but is a stand-alone entity.

Russell Keith Jarrett, a lawyer for the oil companies, said the legislation was clear in its intent to kill the suit and that the flood board cannot be considered separate from state government.

“It is the will of the government to kill the lawsuit,” Jarrett said. “The rights of the levee district were created by the Legislature, and they can be taken away by the Legislature.”

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