Considering the long legacy of official supplication to the oil and gas industry in Louisiana, a lawsuit by a New Orleans area flood protection authority asking the industry to pay for environmental abuses seems at first glance to have a lot of merit.
But we’re concerned about the methods used by the Southeast Louisiana Flood Protection Authority—East in filing its lawsuit against 100 energy companies that have operated along the state’s coast.
The lawsuit, filed Wednesday, argues the industry’s operations damaged the state’s coastline, compromising its ability to fight storm surge and making flood control more difficult and costly. If successful, the suit could require corporations, including major oil producers, to pay some of the cost of restoring wetlands, as well as bearing some of the cost of maintaining flood control systems built after Hurricane Katrina.
John Barry, who serves on the Flood Protection Authority board, conceded industry can’t be blamed for all of the land loss along Louisiana’s coast. But he said energy operations along the coast have been a major factor in land loss, and industry should “fix the part of the problem they caused.”
Numerous scientific studies support the idea that oil and gas exploration has contributed to coastal erosion. But sorting out the questions of liability raised by the suit could take years.
The scale of the lawsuit and its potential impact on public policy underscore the Flood Protection Authority’s obligation to conduct its business in the public interest. We must wonder if the authority’s strategy for advancing the lawsuit meets that standard.
The board did not publicly debate its decision to file the suit, a troubling move given the potentially sweeping consequences of the litigation. The board didn’t vote publicly to file the suit, although it did vote to hire attorneys who are now representing it in the litigation.
That omission raises troubling legal questions of its own. The board’s actions seem to violate the spirit if not the letter of the Louisiana Open Meetings Law.
The Flood Protection Authority’s board has agreed to pay the attorneys it hired to handle the suit about 32.5 percent of any money collected from the litigation up to $300 million and 22.5 percent of any money above that amount.
Although Barry said the board gauged interest among several lawyers, the legal team was selected without benefit of a request-for-proposal process in which professionals are allowed to submit bids for services in an open, competitive forum. Without such a process, the public can’t be sure that the Flood Protection Authority is getting the best terms for its legal representation.
An element of the contract between the attorneys and the board stipulates the attorneys are required to pay all costs involved in the case regardless of its outcome. But under the terms of the contract, the board would be obligated for those expenses should it decide to drop the suit.
We understand the rationale of such a provision, which seems aimed at giving attorneys some measure of assurance that the board will be a consistent partner in the litigation, even if the board’s membership changes.
But we’re hesitant to support any tactic that could limit a board’s flexibility on such an important issue for years.
This doesn’t seem like the best way to build public support for a legal move that could have such far-reaching implications.