[StBernard] Jindal levee authority appointee wants lawsuit against oil, pipeline companies suspended

[Westley Annis]

Jindal levee authority appointee wants lawsuit against oil, pipeline
companies suspended
Print Mark Schleifstein, NOLA.com | The Times-Picayune By Mark Schleifstein,
NOLA.com | The Times-Picayune 
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on November 18, 2013 at 7:29 PM, updated November 18, 2013 at 9:31 PM

A new member appointed by Gov. Bobby Jindal to the Southeast Louisiana Flood
Protection Authority-East will ask the authority to suspend its
controversial lawsuit demanding that 97 oil, gas and pipeline companies
either restore wetlands damaged during their operations or pay for the
damages. A competing resolution, submitted by proponents of the lawsuit,
asks the authority to reaffirm its original vote approving the contract to
hire the Jones, Swanson, Huddell & Garrison law firm and to authorize
continued prosecution of the suit.

Lambert "Joe" Hassinger Jr. was appointed by Jindal last month to replace
John Barry, after the governor made clear he would not reappoint the
historian who had spearheaded the filing of the lawsuit. Jindal contends
that the levee agency overstepped its authority in filing the suit and that
the action conflicts with the state's coastal restoration and protection
master plan.

Hassinger is the sponsor of two lawsuit-related resolutions that are set for
debate at the authority's meeting on Thursday. 

One resolution calls on the authority to ask the New Orleans District Court
to suspend the litigation for 90 days and ask the attorney team handling the
suit to also suspend its work "pending further instruction from the board of
directors" of the authority.

"I want my fellow board members and I to have the opportunity to take a step
back, re-evaluate the board's course of action, and consider our statutory
mission," Hassinger said in an email response to questions about the
motions. "I believe that the best way to do that, at this point, is by a
stay."

Hassinger denied that he was asked to introduce the resolutions by the
Jindal administration. "Absolutely not," he said. "I am acting in someone's
interest, though: the Louisiana taxpayer." 

Hassinger said his focus in reassessing the lawsuit has been "on whether
what was designed to be an 'apolitical board' has significantly deviated
from its statutory mission." 

"We have a job to do, responsibilities that are critical to the safety of
the citizens in our jurisdiction," Hassinger said. "Those are construction,
operation and maintenance of the levees and flood control structures in the
metro New Orleans area. The simple fact is that the authority was not
created to pursue or oversee coastal restoration. Local parishes and the
state have that responsibility." 

Hassinger said that by filing the lawsuit, the authority also deviated from
its role as a non-political entity -- "dove off the cliff, head first into
politics where it professes it never wanted to be."

He expressed concern that "in the next legislative session, we will be dealt
with politically. We may have lost our shield of independence because the
board has tried to turn that shield into a sword, not against the oil and
gas industry, but against our system of government."

"Regrettably, we've brought a sword to a gun fight," he said. 

Hassinger was referring to threats made by several members of the
Legislature that they will seek to change the law governing operation of the
authority to block it from taking actions like the lawsuit without approval
of the governor or the Legislature. 

However, Barry and other members of the authority, in filing the lawsuit,
said the authority's responsibility extends to wetlands restoration because
the loss of wetlands threatens the future of the levee system and the safety
of those living behind it.

Barry, who as a member of the public will address the authority immediately
before the consideration of Hassinger's motions, said the authority's
responsibility also is to assure it has the financial ability to pay for
improvements in the levee system, and, the lawsuit provides a way of
assuring that the energy companies pay for the damage they've caused, with
the money then being available for those improvements. 

Barry has scheduled a news conference Tuesday to announce the formation of
Restore Louisiana Now Inc., a new nonprofit organization that will support
the lawsuit and other coastal issues. The organization will lobby the
Legislature on behalf of the suit and against changes in the law governing
the levee authority, Barry said. 

Hassinger's second resolution calls for the contract between the authority
and the Jones Swanson law firm to be reviewed by the legislative auditor, to
determine if the contract is in line with state law, its effect on the
authority budget and operations, and its implications for taxpayers.

That contract was criticized by Jindal because of its contingency fee
provisions, which would award the attorneys 32.5 percent of the first $100
million recovered from the energy companies; 27.5 percent of the next $100
million to $300 million recovered and 22.5 percent of any amounts greater
than $300 million. The contract also includes a "poison pill" provision,
which requires the authority to pay any attorney's fees and costs incurred
in pursuing the lawsuit if the suit is withdrawn before its conclusion in
court or in a settlement.

When the lawsuit was announced in July, Barry said that provision was
included to limit the possibility of political interference. He has since
pointed to the criticism of the governor and the threats made by legislators
as examples of the political influence the provision was designed for.

But Hassinger disagreed. "What has been trumpeted as a clever tactic and a
poison pill is indeed poison, but it's not poison to the governor, to the
Legislature, to (the) oil and gas industry, to special interest groups, or
to proponents of the suit," he said. "It is poison to this board, to the
next group of commissioners, and most importantly, it is poison to the
public -- the taxpayers -- whose money we collect to fund flood control
projects, the taxpayers whose confidence and support this authority cannot
succeed without." 

The suit contends that damage caused by the energy companies to wetlands
outside east bank levees has reduced the effectiveness of the levees to
protect interior areas from hurricane storm surges. It argues that the
damaging activities were conducted under federal and state permits requiring
operators to maintain and restore the areas.

It also argues that the federal Rivers and Harbors Act of 1899 prohibits
actions that impair the effectiveness of flood protection levees. The suit
relies on a civil law provision called "servitude of drainage," which
prohibits someone owning or controlling property from taking actions that
send more water onto someone else's property.

The planned votes on whether to continue with the suit come only a week
after Jefferson and Plaquemines parishes filed 28 lawsuits of their own
against energy companies, also demanding that the companies repair damage
caused by dredging and remove contaminants left behind after drilling
operations. Those suits rely on the parishes' authority to regulate coastal
zones within their borders, including whether the companies were following
the requirements of state and local permits.

Last week, Garret Graves, chairman of the Coastal Protection and Restoration
Authority and coastal adviser to Jindal, would not say whether Jindal
supported the parish lawsuits. But he said the state would review whether
the companies were violating their permits.

Oil and gas industry officials have roundly criticized all the lawsuits,
contending they are more aimed at enriching the attorneys who were hired to
file them than at fixing damage.

"The issue of wetland loss is tragic and one that is very important to the
oil and gas industry," Chris John, president of the Louisiana-Mississippi
Oil and Gas Association, said when the authority lawsuit was filed. "We
live, work and play in and near Louisiana’s wetlands and have been very
involved in fighting coastal erosion. The reasons for the loss are complex
and involve both natural changes and many man€made activities."

In addition to adding Hassinger to the authority, Jindal has recently
appointed:

Jefferson Angers, president of the Center for Coastal Conservation, to
replace lawsuit supporter Ricardo Pineda, who is chief of floodplain
management for the California Department of Water Resources
Kelly McHugh, president of a civil engineering and land surveying firm, to
replace retired WWL-TV meteorologist David Barnes. Barnes, who did not ask
to be reappointed, was not present for the vote on the law firm contract,
which was the actual vote approving the lawsuit.

Hassinger was not available for comment Monday morning.

Authority Chairman Tim Doody, who also has been threatened with replacement
by Jindal, would not comment on the motions.

"I think the agenda speaks for itself," Doody said. "We’re going to have an
open discussion of the lawsuit and what went into it, and where we are and
why we are where we are."