A New Orleans levee board’s suit against scores of oil and gas companies will likely remain alive long enough for the courts to have their say in the case after a nominating committee on Friday reaffirmed its decision to keep a supporter of the suit on the board.
The decision is a blow to efforts by Gov. Bobby Jindal, who has fiercely opposed the suit, to take control of the Southeast Louisiana Flood Protection Authority-East by filling it with new members who would vote against continuing the case.
Meanwhile, lawyers for the authority have opened up a new front in their efforts to strike down a law passed this year by the Legislature in an attempt to kill the suit. Those attorneys, already fighting that battle in federal court, have now asked a state district judge in Baton Rouge to weigh in and potentially invalidate the law as unconstitutional.
The nominating committee’s decision Friday to renominate coastal scientist Paul Kemp for his present seat on the authority — one reserved for a technical expert or scientist — essentially guarantees he will remain on the board for the near future, meaning supporters of the lawsuit will likely continue to have a slim majority on the board.
The nominating committee had initially given Kemp the nod last week after a contentious meeting that culminated in a 5-4 vote in his favor.
But the validity of that vote was later called into question because state law requires nominees to receive the support of a majority of all 11 members on the committee. That led to Friday’s meeting and revote.
With the aid of one member who changed his vote and another who was absent last week, the nominating committee — made up of academics, engineers and representatives of think tanks — this time supported Kemp’s renomination by a 7-3 vote.
The new votes came from Patrick Carriere, who represents Southern University’s College of Engineering and who missed the last meeting, and American Society of Civil Engineers representative Jerry Klier.
Klier had voted against Kemp last week, pushing instead for engineer Mark Morgan, whom he knows personally, to be given the technical slot on the board, but he changed his position Friday.
“I think the spirit of the process we did a week ago needs to be honored, and we need to support Paul Kemp for that position,” Klier said.
Morgan and current Commissioner Jeff Angers were both nominated to a non-technical seat on the flood protection authority last week. Because those seats require the committee to send up two names, Jindal will chose which one to appoint to the board.
The committee sends the governor only one name for a technical seat like Kemp’s.
Also voting for Kemp’s appointment were Public Affairs Research Council President Robert Scott, Louisiana Geological Survey at LSU representative Chacko John, Louisiana Engineering Society representative Lee Alexander, Tulane University School of Science and Engineering representative Nick Altiero and University of New Orleans College of Engineering representative Norma Jean Mattei.
Jay Lapeyre, who chairs the committee and represents the Council for a Better Louisiana, Association of State Floodplain Managers representative Windell Curole and LSU College of Engineering representative Sherif Ishak voted against Kemp’s nomination.
Lapeyre said afterward that he voted against Kemp because he thinks the lawsuit — which alleges the energy industry is liable for billions of dollars in damage to coastal wetlands in southeast Louisiana, thus increasing the risk of catastrophic storm surges — went beyond the board’s authority. The suit also has thrust the authority, which was designed to be apolitical, into political issues, Lapeyre said.
“This board was constituted on the idea that they were not political, and they have gone outside the intended scope and authority of what they were empowered to do,” Lapeyre said, adding that he has not received any calls or pressure from Jindal’s office or anyone else to cast his vote a particular way.
Author John Barry, a former member of the flood protection authority who was ousted after leading the charge on the suit, told members of the nominating committee that allowing Kemp’s stance on the lawsuit to determine whether he was reappointed could set a precedent that politics can trump expertise. He said that could have far-reaching repercussions for the levee authority, which was supposed to be shielded from political influence by its independence from local governments and the establishment of the nominating committee.
“Today it’s the lawsuit,” Barry said. “Tomorrow it could be some project that some politician wants or some other politician doesn’t want.”
“If you yield to political pressure, you are inviting more political pressure,” he added.
The controversy over the suit has played out in two arenas: the case itself, which has slowly been moving forward in federal court, and the efforts by Jindal to appoint a majority of anti-lawsuit commissioners to the authority in an effort to get the suit withdrawn.
Jindal spokeswoman Shannon Bates said Friday evening that the administration had not yet received notification of Kemp’s renomination and would review it when it arrives. She also repeated a statement issued after Kemp’s initial nomination last week, pledging the administration would use “the full authority of the Governor’s Office to stop” the suit.
Kemp’s nomination severely restricts Jindal’s ability to gain control of the board, at least for the time being. State law does not give the governor the ability to reject the sole nominee for a seat on the authority. However, Kemp’s nomination would have to be confirmed by the state Senate, presumably during next year’s legislative session.
The prospects for that confirmation are dim, given the Senate’s overwhelming support this year for the law designed to kill the suit, but Kemp’s nomination does apparently mean the suit will stay alive long enough for a judge to rule on whether that law is valid.
Attorneys representing both the flood protection authority and the nearly 100 companies named in the suit have filed arguments with U.S. District Judge Nannette Jolivette Brown over whether a bill signed into law this year can retroactively end the case. A hearing on those issues is expected in November.
But now that fight could also play out in the state’s courts. The flood protection authority’s attorneys have asked 19th Judicial District Court Judge Janice Clark in Baton Rouge to rule on whether the bill targeting the lawsuit does in fact apply to the case and potentially also to rule whether it is constitutional.
The motion technically comes as part of a case that played out earlier this year, in which the Louisiana Oil and Gas Association sought unsuccessfully to have the courts nullify the contract between the flood protection authority and its attorneys. Because that case could still be appealed, the flood authority says Clark should rule on whether the new law can play any role in the case.
The arguments being made by the flood protection authority in its new attempt to have the law declared unconstitutional mirror those made against the law in the federal case. Those include claims that the specific language of the law does not apply to the levee authority and that the type of claims the authority is making in the lawsuit do not fall within the scope of those outlined by the law.
The authority’s attorneys also argued the 2014 law cannot be applied retroactively and that the tortured process the bill took as it moved through the Legislature, which included completely rewriting an unrelated measure to get it through committees, meant lawmakers violated a variety of procedures required by the state constitution related to public notice and other issues.
Clark is expected to hold a hearing on those issues in early October.
Follow Jeff Adelson on Twitter, @jadelson.