The fight over Entergy New Orleans’ gas-fired power plant in New Orleans East has moved to the courts, and the initial rulings in two closely related cases challenging the City Council’s approval of the plant may lead to conflicting results.
One case is a procedural challenge. Several environmental groups allege that Entergy’s use of paid actors to fill the City Council Chamber during two public hearings violated the Public Meetings Law by depriving many opponents of the opportunity to be heard.
In the other, more substantive challenge, some of the same plaintiffs seek to overturn the council’s decision to approve the plant (known as the New Orleans Power Station, or NOPS) for a variety of reasons.
Civil District Court Judge Piper Griffin heard both cases. She ruled against the council in the open meetings case, giving brief oral reasons from the bench. In the substantive challenge, Griffin issued a detailed, 26-page opinion that ruled in favor of the council at every turn.
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Griffin noted from the bench that her decisions “won’t make sense to everybody” because she found that the council “did nothing wrong” throughout the lengthy hearing and approval process. She added that the council “did a very good job of making sure notice of hearings were had” and “did its due diligence.” Nevertheless, she concluded that Entergy undermined the public hearing process and therefore caused a Public Meetings Law violation.
In essence, her rulings split the baby, but their after-effects may conflict with one another. Although the plaintiffs lost their direct challenge to the council’s approval of NOPS, they plainly hope their procedural victory will move Griffin to overturn the council’s approval — something she expressly declined to do in her lengthy written opinion in the substantive case.
When judges review council decisions, they do not determine whether the council decided rightly or wrongly, but whether the council acted arbitrarily or capriciously — a high standard.
In her written opinion, Griffin noted that the council’s decision to approve NOPS came after nearly two decades of regulatory actions. She noted the 21 public hearings held by the council regarding NOPS. The plaintiffs raised multiple arguments, which Griffin shot down one by one — at one point even calling the plaintiffs’ contention “disingenuous.”
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Interestingly, in her oral ruling on the public meetings challenge, Griffin did not mention the two additional public hearings the council held after The Lens busted Entergy for “astroturfing” two initial public hearings. Nor did she note the council’s $5 million fine against Entergy or its decision not to reconsider the previous council’s approval of NOPS. In effect, the council already has remedied Entergy’s Public Meetings Law violation. What more should the court order?
That’s where the two rulings may conflict.
If Griffin’s ruling in the public meetings case leads her to overturn the council’s approval of NOPS, it effectively would allow a bad faith, non-public body to nullify the good faith efforts of a public body to comply with the law. That would set a dangerous precedent. It also would nullify Griffin’s detailed written ruling in the substantive case.
Both cases are likely to be appealed, which means the fight is far from over.
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