A New Orleans judge heard arguments Tuesday but made no decision in a lawsuit over whether the City Council lawfully made its decision last year to green-light Entergy's controversial power plant in New Orleans East.
The hubbub over the $210 million natural gas-fired power plant has rumbled on for more than a year, and the suit has been seen as a last-ditch effort by a coalition of activists to block it after the council reaffirmed its backing for the plant in February.
Monique Harden and Susan Stevens Miller, lawyers for the Deep South Center for Environmental Justice and Earthjustice, respectively, argued before Orleans Parish Civil District Court Judge Piper Griffin that there were several violations of due process in the council's consideration of the issue, including a failure to consider studies of potential environmental pollution and flood risk.
Also, they argued that there was a conflict of interest for the council and its outside advisers, who they claim acted as advocates for the plant while helping the council decide on whether to approve it.
Basile Uddo, an attorney for the council, aimed to counter those arguments about conflict of interest and correct council processes.
He also warned that the failure to replace the generating capacity of a now-shuttered power plant with the new plant, or to potentially risk broader "system agreements" with other states by not moving forward with the new plant, could be "a huge red flag for the city of New Orleans."
After two hours of arguments by lawyers for both sides, Griffin made it clear that she would not be making a call on the merits of the plant itself, but only on whether the manner in which the council made its decision was lawful.
"I don’t get to determine which evidence is better than the other evidence," Griffin said. "I'll be deciding on the question: Was the evidence (against the plant) so overwhelming that (the City Council's) decision was arbitrary and capricious and must be reversed?"
She took the matter under advisement and said she will issue a written decision at a later date.
The lawsuit is the latest chapter in a long-running saga over the plant's approval process. The 129-megawatt project was approved by the City Council in a 6-1 vote in March 2018. But after The Lens reported that a consultant working for the utility paid a number of actors to speak in support of the plant at public meetings, an uproar ensued that put the fate of the plant in doubt.
Entergy agreed to pay a $5 million fine for those actions, and the council decided in February to move forward with the plant.
The coalition bringing the case also includes the Sierra Club, 350 New Orleans and the Alliance for Affordable Energy.
The judge's line of questioning Tuesday reflected what is likely a difficult road for the coalition of groups seeking to have the approval overturned.
"Are you saying no power plant should be built in any area within a certain distance of certain populations?" Griffin asked the coalition attorneys. "Because if that’s what you’re saying, we’d be going back to the Stone Age. I’m just being honest."
The oral arguments followed written submissions by lawyers for the coalition, the City Council and Entergy, as well as the various regulatory bodies involved, including the Louisiana Department of Environmental Quality, the Federal Emergency Management Agency and the Environmental Protection Agency.
Uddo said he expects the judge will take several days to weigh all the arguments before making a ruling.
Harden said after the hearing, "We believe the people of New Orleans deserve better than a utility company that uses paid actors to support a polluting and costly gas plant, and a rubber stamp for a council. We are hopeful for a just conclusion."