Quin Hillyer: On wetlands suit, know when to fold’em

By Quin Hillyer

qhillyer@theadvocate.com

The levee board for southeastern Louisiana is acting like one of those suckers in a “match the pot” poker game with lots of wild cards. Worse, in sticking with a radically sweeping lawsuit against as many as 97 oil companies, board members are playing with somebody else’s money, namely that of Louisiana’s taxpayers. It’s long past time for them to escape a losing game.

To recap, critics rightly think the lawsuit is an attempted mugging, trying to pick supposedly deep pockets of oil companies even for harm they didn’t do while stopping dead in their tracks the increasing cooperation the companies had been giving to coastal restoration efforts. That’s one reason so many elected officials of both parties, along with key coastal restoration leaders, have opposed it.

Worse, they are operating under a no-bid, wildly irresponsible contract with lawyers, putting taxpayers on the hook for millions of dollars, and growing. And now that legislators and the governor have duly enacted a law quashing the suit, the board and its hired attorneys say the law doesn’t apply to them and that the suit “is barely close to even starting.”

Follow the money here: The contract, originally approved as a contingency fee deal (meaning the lawyers get paid only if they win) contains what its own chief instigator calls a “poison pill” that pays the lawyers’ huge hourly fees if the suit is dropped before conclusion. The Legislature and governor enact a law quashing the suit — so now the board and lawyers say they will challenge the enforcement of that law, still apparently under the same terms that pay the lawyers hourly if the suit is eventually dropped.

So, by merrily prosecuting the lawsuit anyway, they rack up more billable hours that are payable, even if they are wrong about their assertion that the new law actually doesn’t apply to them. But that final ruling could be many appeals, years and thousands of exorbitantly billable hours away.

Joe Hassinger, vice president of the Southeast Louisiana Flood Protection Authority-East and a critic of the lawsuit, said the board has been given no reason to believe the billable hours won’t continue to pile up under the “poison pill” part of the contract.

“If we get to a point that the suit is dismissed because of the act passed this year and signed by the governor,” Hassinger told me, “and claims are made for reimbursement and compensation for hours and expenses for several million dollars, the proponents of the suit will have to explain to taxpayers and the public what flood protection will go unfunded so those bills can be paid.”

Hassinger moved in June for the board to dismiss the suit, but his motion failed on a 4-4 tie vote. The four board members who voted to keep the suit alive are the ones who keep “matching the pot,” hoping their hand wins in the end and absolves the board — meaning the taxpayers who fund it — of these poison pill payments.

Fat chance. Legally speaking, the board isn’t even holding face cards.

The suit’s proponents claim the law is inapplicable because, as former board member and lawsuit instigator John Barry wrote on his Facebook page, “Act 544 does prohibit ‘local government entities’… from suing over any oil-related damages in the coastal zone. However, a local government entity has a very precise legal definition, and that definition does not fit the flood authority.”

The Jindal administration argues, quite convincingly, otherwise. It notes that levee boards were created in the state constitution as Part 3, Section 38 of Article VI. The very title of Article VI is “Local Government.” How an entity created under the article defining “local government” can be anything other than a “local government entity” is beyond ordinary human understanding.

Good poker players know that as frustrating as it can be, sometimes it’s best to quit while one is behind — in order to avoid falling into an even worse hole so deep you can’t pay your way out. If the levee board’s majority had a shred of fiscal responsibility, they would fold their suit now. The board can’t protect Louisiana citizens against floods if the board is under a flood, or even a rising tide, of debt.

New Orleans native Quin Hillyer is a contributing editor for National Review. You can follow him on Twitter, @QuinHillyer. His email address is qhillyer@theadvocate.com, and he blogs at blogs.theadvocate.com/quin-essential.