High-dollar legal teams are preparing to spar in federal court over the regional levee authority’s historic lawsuit against oil and gas companies, but a panel of volunteers could preempt those efforts when they meet in August.
Last week, the state Attorney General’s Office issued an opinion stating that two seats are now vacant on the Southeast Louisiana Flood Protection Authority-East. That means the future of the suit now rests in the hands of the independent committee charged with finding nominees.
Last year, the nine-member board voted unanimously to sue oil and gas companies for contributing to coastal erosion that has made it harder to protect New Orleans from hurricanes.
Gov. Bobby Jindal, who opposes the lawsuit, has since placed four new members on the board to erode support for the suit.
If the nominating committee gives Jindal the chance to name lawsuit opponents to the empty seats, then the majority would swing to the governor’s position and they could vote to withdraw the lawsuit.
In June, the board voted to withdraw the lawsuit, but the motion failed, 4-4, with one lawsuit supporter absent.
The vacant seats belonged to Paul Kemp, a proponent of the lawsuit, and Jeff Angers, one of the four new members who oppose the lawsuit.
Kemp and Angers were appointed to serve the remaining terms of other members. The board had assumed they would serve full, four-year terms. Kemp joined the board in 2011, Angers in 2013.
But by one interpretation of state law, their terms may have expired July 1, 2014. So last month the nominating committee chairman, Jay Lapeyre, requested an opinion from Attorney General Buddy Caldwell.
Caldwell’s office opined that the terms ended July 1. The opinion covered similar confusion over three members of the Southeast Flood Protection Authority-West.
The opinion was non-binding, but Lapeyre said his panel would meet Aug. 28 to begin the process of selecting nominees for the two seats.
The committee must wade through a long list of eligibility requirements for board service.
Four seats must go to scientists or engineers. Another one must be a civil engineer. Two seats are for professionals — anyone who has at least a bachelor’s degree. The remaining two are at-large members, with no professional requirements.
In addition, the board must have a member from each of the five parishes in its jurisdiction: Orleans, Jefferson, St. Bernard, St. Tammany and Tangipahoa.
The committee is required to send the governor just one name for the scientist/engineer seats, but two for the others.
Kemp held a seat reserved for an engineer or scientist; Angers’ was an at-large seat with no professional requirements.
Before the political fallout over the lawsuit, the committee’s main challenge was receiving enough applications. It often found creative ways to meet the various requirements. For instance, an engineer from a needed parish might be placed in an at-large seat to make room for another member in the engineer/scientist category.
Those requirements were established by the Legislature in the reform movement after Hurricane Katrina, for the express purpose of keeping politicians out of the process. But the lawsuit against the most politically powerful industry in the state immediately brought politicians in.
When the nominating committee met last year to consider three vacancies, the Jindal administration announced the governor would veto any nominees who supported the suit. So the panel turned down the application of board vice president John Barry to serve another term. Those three new members all oppose the suit.
Since then, however, the committee has asserted its independence. In a meeting earlier this year, it passed a motion stating that it has no obligation to submit new people for the levee authority board if the governor rejects a qualified nominee.
That could set up a confrontation between a governor and the committee because by law, a board member continues to serve after his term expires until he is replaced.
That situation could arise in August. Kemp, a Louisiana State University professor considered a foremost expert on the state’s coastal issues and hurricane defenses, said he probably will apply for one of the open seats. If he is renominated and rejected by the governor, no one is sure how the deadlock would be broken.
Before the controversy over the lawsuit, “if the governor had rejected someone, I don’t think we would send him up again,” Lapeyre said.
“We have now taken a position we don’t think the governor has that right to veto qualified nominees,” he said. “We think the governor has to choose; otherwise, what was our purpose?”
A series of legal deadlines leading to that vote — or the governor’s ability to supersede it, as he has done before — has already begun, Lapeyre said. That process requires:
• The flood authority board must notify the Coastal Protection and Restoration Authority of a vacancy within 10 days of that occurrence.
• The chairman of the coastal authority, currently Jerome Zeringue, has 14 days to publish notice of the vacancy in official journals in Louisiana and the parishes affected. Zeringue said the flood authority sent the notification, and he expected to meet the deadline for publishing the openings.
• Thirty to 60 days after the last public announcements of the vacancy, the nominating committee must meet and select names.
• The nominees must be sent to the governor no later than 90 days after the vacancy occurs. In this case, that is around Oct 1. The exact date often is influenced by state holidays or emergency declarations for events such as hurricanes.
• If the nominating committee fails to send names by then, the governor can select anyone who meets the qualifications for the open seat.
Lapeyre has scheduled committee meetings on Aug. 28, Sept. 18 and Sept. 25. The committee usually selects nominees in two meetings.
Bob Marshall covers environmental issues for The Lens, with a special focus on coastal restoration and wetlands. While at The Times-Picayune, his work chronicling the people, stories and issues of Louisiana’s wetlands was recognized with two Pulitzer Prizes and other awards. In 2012 Marshall was a member of the inaugural class inducted into the Loyola University School of Communications Den of Distinction. He can be reached at (504) 232-5013.