As a New Orleans-area levee authority on Monday reaffirmed its intention to go forward with a lawsuit against dozens of oil and gas companies, newly elected officials in Plaquemines Parish are contemplating putting a similar set of cases on hold.
At the moment, both efforts will continue to move through the legal system, with the Southeast Louisiana Flood Protection Authority-East’s case headed to the 5th U.S. Circuit Court of Appeals and the parish cases moving through procedural steps in state and federal trial courts.
Supporters of the sweeping Flood Protection Authority suit, which charges that the energy industry is responsible for billions of dollars in damage to coastal wetlands, on Monday fended off opponents, who cited a federal district judge’s dismissal of the case as reason to drop it altogether. With backers of the suit still maintaining a slim majority on the board, and a significant financial penalty possibly in place if the authority does not go through with its appeal, the proposal to stop the appeal failed 5-4.
Commissioner Rick Luettich, a supporter of the suit, argued that the judge’s recent decision should not be seen as the final word on the matter.
“We haven’t been stopped by the law; we have been delayed by the law,” Luettich said. “The court system hasn’t rendered a final judgment.”
Opponents of the suit, appointed to the board by Gov. Bobby Jindal over the past year and a half as part of a multipronged effort by opponents to kill the case, argued that continuing it was a fool’s errand.
“The court said we’re not the right party. It’s not our fight,” Commissioner Joe Hassinger said.
The Flood Protection Authority’s case, filed in 2013, was dismissed by U.S. District Judge Nannette Jolivette Brown last month in a ruling that said the board was not the proper entity to bring the case and did not have a legal cause of action to sue.
The attorneys pursuing the case for the authority immediately announced their intention to appeal that decision to the 5th Circuit, and authority President Stephen Estopinal signed off on that plan, though the full commission had not voted on the issue until Monday.
The contract between the Flood Protection Authority and its attorneys allows the lawyers to decide whether to go ahead with appeals unless stopped by the commissioners. If the case is halted, the attorneys, who are working on a contingency basis, would be able to charge the authority for the time and expenses they’ve already incurred, an amount likely to reach several million dollars.
That provision, known as a “poison pill” and intended to stop political interference with the suit, took up much of the commissioners’ discussion on Monday.
Hassinger argued that the provision was illegal and that even if a court rules that the authority owes its lawyers money, the board would be able to refuse to pay it because it is a state-created entity.
“The board has no risk in deciding to accept what the judge says the law is,” Hassinger said.
Commissioner Paul Tilly, who has supported the suit throughout the process, countered that doing so would put the board at risk of being sued by its own lawyers. He and Luettich also argued that the money generated by the lawsuit would be needed to help fund the state’s Coastal Master Plan, a $50 billion, 50-year plan to restore the coast.
“Without funding, it’s just a piece of paper,” Tilly said. “Have you ever tried to stop the flow of water with a piece of paper?”
That sentiment was echoed by former Flood Protection Authority Commissioner John Barry, one of the architects of the lawsuit, and retired Lt. Gen. Russel Honoré, who leads an environmental coalition dubbed the Green Army.
“I think the people of Louisiana need some hope, need some hope that someone’s going to stand up and fight for our coast,” Honoré said.
The Flood Protection Authority’s suit has been at the center of a political battle since it was filed in 2013 and has repeatedly survived efforts to kill it. By contrast, the unrelated set of suits in Plaquemines, and a similar set in Jefferson Parish, have been relatively noncontroversial.
That could change. Plaquemines Parish Councilwoman Nicole Smith Williams has proposed putting the parish’s case on hold to allow herself and the other six members elected to the nine-member council last year to decide whether to proceed.
“This is just something we’ve inherited. That’s why I don’t feel we need to jump into any rash decisions either way,” Williams said.
Plaquemines and Jefferson parishes filed their own suits alleging coastal damage by the oil and gas industries months after the Flood Protection Authority. Those suits are narrower in scope, focusing on damage to specific pieces of property.
The Flood Protection Authority’s suit, by contrast, claims damage across the entire southeast Louisiana coastline; its proponents have said specific actions by companies would be hashed out during a trial.
The judge’s dismissal of the authority’s lawsuit does not negate the parish cases and, in fact, could strengthen the argument that parish governments are the proper plaintiffs to sue for damage within their jurisdictions.
Williams said she wants to look at all the issues tied to the parish case, including its impact on economic development in a parish that has many oil and gas facilities.
Williams’ proposal would only put the suits on hold, not rescind them, though it could be the first step in withdrawing from the cases. It is expected to come up at a Parish Council meeting in coming weeks.
Plaquemines Parish Council Chairman Benny Rousselle, who also took office this year, said putting the litigation on hold might give officials a chance to reach a settlement with the companies accused of damaging the coast.
That damage is admitted even by those who oppose the suits, Rousselle said, and the ongoing litigation could prevent the oil and gas companies from coming to the table to negotiate.
“It’s a very tough decision,” he said. “I think everyone would admit that a settlement would be the ideal situation. That’s what I’d really like to push for.”
Follow Jeff Adelson on Twitter, @jadelson.