[StBernard] Jindal looks for ways to intervene in levee lawsuit

[Westley Annis]

Jindal looks for ways to intervene in levee lawsuit

Oil, gas companies targeted

BY JEFF ADELSON
jadelson at theadvocate.com
August 01, 2013

Gov. Bobby Jindal's administration is looking for ways to block a lawsuit
accusing oil and gas companies of raising the risk of catastrophic flooding
in New Orleans by destroying the wetlands in southeast Louisiana.

The move represents a step forward in the Jindal administration's opposition
to the suit, although they've criticized it repeatedly since the Southeast
Louisiana Flood Protection Authority - East filed the paperwork last week in
Orleans Parish Civil District Court.

Jindal said state officials were looking into means to sink the suit during
a news conference on hurricane preparedness Wednesday in St. Bernard Parish.

"We have asked the (Coastal Protection and Restoration Authority) to look
into intervening to make sure the courts understand this suit is not
authorized, that the levee board did not have the legal authority to do
this," Jindal said.

That approach could be bolstered with new laws that could be brought forward
next session restricting the levee board's authority, he said.

The potentially historic lawsuit alleges that the massive destruction caused
by canals, pipelines and wells built by oil and gas companies over the
course of generations has increased the intensity of storm surge in the New
Orleans area by removing a natural buffer that would otherwise have reduced
the damage caused by hurricanes. That, in turn, has required the
construction of larger and more complex flood protection measures that are
costlier for the flood protection authority to operate.

In addition, the suit notes that the permits the 97 named companies are
working under permits that require the projects they construct to be
maintained while in use and restored when completed.

"What it comes down to is really simple, it's a choice: Do you want to
protect the oil and gas companies from having to keep their written promises
and having to obey the law or do you want to protect people's lives and
property from hurricanes?" board Vice President John Barry said.

The crux of the legal dispute arises from administration claims that the
permission of the governor and attorney general is required before the board
can hire special counsel, as they did to prepare and pursue the lawsuit. The
board, however, argues they are bound by a different set of requirements
that only call for the attorney general to sign off on lawsuits.

Jindal and administration officials have opposed the suit since it was
filed, arguing the board overstepped its authority and the contingency
agreement for the attorneys working on the case is too generous. However,
officials initially said they had no plans to directly attempt to block the
suit from going forward. Coastal Protection and Restoration Authority
Chairman Garret Graves said last week he wanted to talk with board members
in hopes that they would drop the suit on their own. Board members responded
with an invitation to the authority's Aug. 15 meeting.

The hope is that meeting can produce a "common path forward" that would
include continuing the suit, board President Tim Doody said. But, he said,
its not clear whether that kind of middle ground exists.

"I believe there is, I don't know that there is," he said.

How the administration's intervention would work is not yet clear, though it
could be as simple as a legal brief from the administration opposing the
suit.

A similar scenario played out when then-Attorney General Richard Ieyoub
joined a massive suit against tobacco companies during former Gov. Mike
Foster's administration. During that suit, the companies used affidavits
from Foster and Jindal, who was serving as secretary of the state Department
of Health and Hospitals, to argue the case was not authorized and should be
thrown out. A judge disagreed and allowed Ieyoub's lawsuit to proceed along
with those from other states, eventually resulting in a multibillion
settlement.

The more forceful Jindal administration opposition to the suit also came the
same day U.S. Rep. Steve Scalise, R-Jefferson, sent a letter to the flood
protection authority demanding more information on its contract with its
attorneys.

Scalise focused his attention on one element of that contract, a so-called
"poison pill" that would require the levee board to pay the attorneys for
the time and expenses they spent on the suit if it is withdrawn by the levee
board. That's the only scenario in which the board would be required to pay
the attorneys, who would otherwise reap a portion of the money received in a
judgement or settlement or, should they lose, go without pay.

Barry and other officials have said that provision was included in hopes it
would give pause to those who would attempt to exert political pressure to
force the authority to drop the suit.

That provision, however, could force the authority to pay the attorneys from
taxpayer money that should go to flood protection.

"They're taking a very big gamble while putting flood protection assets on
the table as poker chips," Scalise said.

But with the authority already worrying about how it will be able to come up
with the money to maintain and operate the post-Hurricane Katrina flood
protection system, Barry said the suit was the board's only recourse.

"I don't think it's a question of how much the levee board or the taxpayers
will be on the hook, its a question of protecting New Orleans," Barry said.
"This is the only vehicle I know of that will get us enough money to protect
the city."

During Wednesday's news conference, part of a 64-parish tour Jindal has
embarked on since the end of the legislative session, administration and
local officials also touted the state's hurricane preparedness. With the
peak of the Gulf hurricane season coming up in a few weeks, Jindal stressed
the importance of collaboration between various agencies and urged residents
to be prepared.

Jindal also warned residents to be prepared for hurricanes that could bring
storm surge to unexpected areas, as occurred last year during Hurricane
Isaac. Jindal suggested the flood protection system designed and built by
the U.S. Army Corps of Engineers played a role in directing flooding to new
areas.

"It absolutely causes a different flow of water," Jindal said.

But studies done by the corps after Isaac showed the new flood protection
system in the New Orleans area had a minimal effect on flooding in areas
that received larger-than-expected storm surges, such as St. John the
Baptist and St. Tammany parishes.