East Bank Levee Authority Votes to Reaffirm Wetlands Damage Lawsuit Against Energy Companies

By Mark Schleifstein
December 05, 2013

The Southeast Louisiana Flood Protection Authority-East voted 5-3 during a special meeting Thursday (Dec. 5) to reaffirm its decision to file suit against 97 oil, gas and pipeline companies to force them to restore damaged wetlands outside the East Bank levee system or pay for damage that cannot be restored.

The vote also reaffirmed the hiring of the Swanson Jones law firm to oversee the lawsuit.

Voting against the resolution were three authority members appointed in October by Gov. Bobby Jindal, who has made clear his opposition to the suit. Jindal contends the suit is not in keeping with the state's coastal restoration policy, and was filed without consulting him and other state officials.

Not voting was authority President Tim Doody, who votes only in the event of ties. Doody, however, has made clear that he supports the lawsuit. Like the three authority members replaced by Jindal, Doody's term on the authority has expired and he has been notified by the governor's office that he's likely to be replaced because of his support of the lawsuit.

The vote came after the three new authority members raised questions about the necessity of the vote and about the legality of the process followed to select the Swanson Jones law firm.

New authority member Joe Hassinger, who represents New Orleans and replaced former authority Vice President John Barry, who proposed the lawsuit, questioned why Thursday's special meeting was necessary when the authority already had scheduled a vote on the resolution at its regularly scheduled meeting in two weeks.

"Why are we here?" Hassinger asked.

Board Member Richard Luettich, a University of North Carolina research professor who co-designed the ADCIRC computer model used by the Army Corps of Engineers in designing the local levee systems, said he requested the special meeting to remove any confusion about whether the authority still supported the controversial suit.

During the authority's Nov. 21 meeting, a majority of its members agreed to ask the state's legislative auditor to review the legal contract, with Wilton Tilly III and authority secretary Louis Wittie, who voted for the suit in July, joining the three new members.

Tilly and Wittie also joined those three in tabling a vote on the reconfirmation motion during that meeting.

Luettich said the second vote, because it was on a motion to table, was done without discussion, and he felt the public might have been confused about the authority's intent to continue with the suit.

Luettich said he believed the authority, in considering the reconfirmation motion, could choose between two "very honorable" paths, or choose a third path of putting off a vote.

"The first is to approve this and give a vote of confidence to the legal team and a strong message to the public that this is the right thing to do," he said. "The second is to decide not to take this course of action and tell the legal team it's time to settle up and stop the suit.

"The third is to undermine the legal team, undermine their effort and hope the whole thing crumbles," he said.

New authority member Jefferson Angers of Baton Rouge, who is executive director of the Center for Coastal Conservation, also raised questions about the way the Swanson Jones firm was selected to represent the authority.

Angers distributed copies of the authority's "Qualification Based Selection Process for Professional Services" to the other authority members, a policy adopted in 2009 that calls for a selection committee to advertise for the law firm and select a firm from three finalists.

In announcing the lawsuit in July, Barry said he had approached several law firms about whether they would handle the case pro bono, or at cost, but no lawyers were interested. He said he then approached several law professors and attorneys knowledgeable about environmental law, and they recommended the Swanson Jones firm.

After Thursday's meeting, Barry said the proper selection process was followed, and that the committee called for in that process included him, Doody and authority attorney Robert Lacour. 

Jindal and Coastal Protection and Restoration Authority Chairman Garret Graves, who advises the governor on coastal and levee issues, have criticized the legal contract because it would allow the law firm to retain as much as a third of any financial judgement against the energy companies and because it contains a "poison pill" provision that requires the authority to pay the lawyers' expenses and hourly charges if the contract is canceled before the suit reaches a conclusion.

If the authority were to lose at trial, the law firm's hourly charges and expenses are not reimbursed, however.

Authority Secretary Stephen Estopinal referred to the proper process outlined by Barry and called for an end to the discussion.

But Angers responded that even without a vote on the resolution, the lawsuit would continue, and asked whether the authority would be asked to reaffirm the vote again in the future.

"If every two weeks we get called back in here to reaffirm, that's not an efficient use of taxpayer dollars, or your time and mine," he said.

St. Tammany Parish resident and civil engineer Kelly McHugh, the third Jindal appointee, again questioned whether the law firm should have been hired without following the authority's own selection policy. "Doesn't that jeopardize anything? he asked.

"I don't think it does, but we'll find out soon enough," Doody said, referring to the ongoing investigation of the contract by the legislative auditor.

During the vote, Doody asked Hassinger whether he was able to vote on the motion. Hassinger has requested a ruling from the state Board of Ethics on whether he can vote on a motion to kill the lawsuit, because his law firm, Galloway Johnson Tompkins Burr and Smith, may represent some of the companies named in the suit.

The law firm's website says it represents "several of the largest drilling contractors and pipeline transportation companies in the world, as well as companies engaged in all phases of oil and gas production, processing, transportation, refining and related activities. Our clients include both major and independent oil and gas producers, as well as oilfield service companies and suppliers."

Voting for the motion were Luettich, Estopinal, Baton Rouge marine scientist G. Paul Kemp, Metairie civil engineer Wilton Tilly III and authority secretary and Hammond engineer Louis Wittie. Voting against were Hassinger, Angers and McHugh.

Before the vote was taken, the authority also heard from a variety of people who support the resolution, including former Army Gen. Russel Honore, who now heads a nonprofit environmental organization called the Green Army; Louisiana Bucket Brigade founder and director Anne Rolfes; and Levees.org founder Sandy Rosenthal.

Honore said the suit was a rare step forward by a state agency to force oil and gas companies to restore their historical damage to wetlands. "We want these oil and gas companies, but they've got to clean and restore what they broke," Honore said.

Barry, in his comments to the authority, compared suggestions by Jindal and Graves that they would support efforts by the Legislature to nullify the lawsuit during its next legislative session to feudal lords denying the legal rights of English citizens, quoting 17th century English jurist Sir Edward Coke, who coined the phrase, "The house of everyone is as his castle."