San Francisco Chronicle: AP Analysis: Is this flood board going rogue?

By KEVIN McGILL, Associated Press
Updated 2:05 pm, Sunday, August 4, 2013

NEW ORLEANS (AP) – In a month full of reminders of the perils and costs of offshore drilling – among them one leaky well, one full-scale blowout and spectacular fire and one corporation’s acknowledgment that some evidence pertaining to the 2010 Gulf oil spill was destroyed – July’s biggest splash was made in Civil District Court in New Orleans, where a local flood control authority, some would argue, went rogue.

Foreseeing huge flood-control costs associated with the continued disappearance of Louisiana wetlands, the Southeast Louisiana Flood Protection Authority-East’s board of commissioners filed a lawsuit against scores of oil, gas and pipeline companies. It seeks damages and mitigation for damage allegedly done by decades of dredging and canal-cutting.

Gov. Bobby Jindal issued a scathing criticism of the suit, saying the board was effectively trying to usurp state responsibilities and that the suit would provide a “windfall for trial lawyers.”

It’s worth noting that Jindal issued that statement the day after The Associated Press reported that the law firm of his political ally and former executive counsel has received $1.1 million in no-bid state work. That irony aside, Jindal’s statement raised serious issues. They were spelled out at more length in a letter from his coastal protection chief, Garret Graves, to Timothy Doody, president of the SLFPAE, formed amid post-Katrina reforms to oversee three New Orleans area levee districts.

Without denying the role of oil and gas activities in degradation of the coast, Graves said there are others involved as well. He blames, for example, the U.S. Army Corps of Engineers’ “ongoing, unsustainable river management practices,” and “halfhearted” efforts by BP to continue cleaning lingering oil from the 2010 disaster.

Graves argues that the lawsuit undermines a comprehensive state effort to prevent and mitigate wetlands loss. He argues that state law regulates the local flood control agency’s power to file such a lawsuit and that the governor’s approval was needed before the board reached an agreement with the lawyers filing it.

“Louisiana law and our constitution organize government and place certain responsibilities within accountable entities,” Graves wrote. “However, SLFPAE’s recent decision violates those principles.”

John M. Barry, vice president of the board, responded with a letter praising the work of the state’s Coastal Protection and Restoration Authority, which is headed by Graves. But he rejected Graves’ arguments.

“We are an independent board, expressly designed to be insulated from political pressure – exactly the kind of pressure now being exerted upon us. Our purpose is protecting people’s lives and property,” Barry wrote. “We are supposed to exercise our judgment in how best to do so. We are a board with expertise in flood protection, not politics. Based on our responsibility, expertise and best judgment, we filed this lawsuit.”

He elaborated in an interview, saying the administration based its statements about legality of the contract on a misreading of law. “Our in-house counsel said we had the authority. Before we approached the litigator, the attorney general’s office said we had the authority,” Barry said.

Gladstone Jones, the litigator hired to prepare and file the lawsuit, anticipated the argument, Barry added. “He satisfied himself that we had the authority before he started putting in any of his enormous effort,” he said.

The contingency lawsuit will cost the board nothing if it loses, Barry said. He also answered critics, including Republican U.S. Rep. Steve Scalise, who said the board or the state will have to pay if the board drops the suit.

“If the board is reconstituted by the political process and it voluntarily withdrew the suit, then the attorneys would have to be compensated,” Barry said.

“Will the attorneys get rich if they win? Yes,” Barry added later. But a loss could bankrupt them, he argues. “More importantly, if they win, we should have the money necessary to protect the area from hurricanes.”
Kevin McGill is an Associated Press reporter based in New Orleans.
Special thanks to Richard Charter

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