Strange moves to intervene in Barbier's rejection of claims

By Steve Korris | Jan 16, 2012


NEW ORLEANS – Alabama Attorney General Luther Strange, who displaced Louisiana attorney general Buddy Caldwell as Louisiana's lawyer in Deepwater Horizon litigation, aims to take charge of an appeal that Louisiana parishes filed.

On Jan. 13, Strange moved to intervene in their challenge to U.S. District Judge Carl Barbier's rejection of most of their damage claims against BP.

Many parishes filed appeal notices, but Strange filed the first brief.

"If the court answers the question presented by this appeal, the court will likely decide the fate of substantive claims that the State of Alabama pleaded against the defendants, as well as Alabama's ability to enforce its own environmental protection statutes," he wrote.

"If an illegal oil spill commences in federal waters, does federal law preempt a state's ability to penalize the polluters when the oil enters the state's territory and kills the wildlife within?"

He wrote that Barbier dismissed state law penalty claims of Alabama and Louisiana on Nov. 14, but held that their federal claims were viable.

He wrote that Alabama couldn't appeal because judgment wasn't final.

After Barbier entered a similar order against the parishes, on Dec. 9, they filed the appeal Strange wished he could file.

"We seek to ensure that the penalty scheme enacted by Alabama's legislature to punish and deter oil pollution within our borders is properly enforced," he wrote.

He wrote that Alabama has an interest in regulation of waters and protection of fish and wildlife resources.

He wrote that Alabama has an interest in the physical and economic health and well being of the citizens directly affected by oil pollution.

"In short, there is no question that Alabama's sovereign interests warrant intervention," he wrote.

He wrote that Barbier's first order found the federal Clean Water Act preempted Alabama's claims under Alabama law.

He wrote that the second order simply cited back to the analysis against Alabama's claims in the first order.

"In other words, when this court reviews the district court's ruling that the parish DA's penalty claims are constitutionally preempted, this court will actually be reviewing the district court's ruling that Alabama's state law penalty claims are constitutionally preempted," Strange wrote.

He wrote that Alabama's expertise would benefit the court.

"Alabama in no way means to diminish the efforts of the Louisiana attorney general and parish district attorneys, who have also diligently fought against preemption of their statutes," he wrote.

Special deputy attorney general Corey Maze and assistant attorney general Winfield Sinclair worked on the brief.

Strange represents all state and local governments on a plaintiff steering committee that Barbier picked.

In December, Barbier roasted Caldwell for delaying and obstructing litigation while praising Strange and Louisiana Gov. Bobby Jindal for collaborating with the committee.

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