Last week, the Southeast Louisiana Flood Protection Authority-East filed suit against dozens of extraction companies to scoop money from them to fund its activities – never mind, naturally, that the majority owners of them directly or indirectly are millions of small investors and they and consumers would pay for any such transferring. The suit claims that exploration for decades has caused a greater magnitude of flooding, impaired levees, and culminated in breach of contract for insufficient restoration actions. Damages awarded could run into the billions of dollars if it succeeds.
The Authority candidly admits that it fears it doesn’t have money to fund its ambitious flood protection ideas and so wants to grab some. The Gov. Bobby Jindal Administration, from where approval from the governor which must be given (even as the Authority claims a novel status within state government that obviates that) for a suit to proceed, has expressed opposition and at the Authority’s next meeting will lay out the consequences of its going rogue.
Unfortunately, the Authority put taxpayers in a bad position by how it went about getting to this point. First, its board never authorized the suit; rather, it hired the lawyers who then chose to sue on its behalf, abrogating its own responsibility. Second, the hiring was done on a contingency basis (and with the blessing of Atty. Gen. Buddy Caldwell who always jumps to support the concept when it doesn’t reduce how own power) with a provision that the Authority pays (from its presumably too-scarce resources) only if it withdraws the suit. That means it has reduced incentive to drop the case as it pays nothing by dragging it all out to the bitter end, costing taxpayers millions for the state to defend the rule of law it’s trying to break.
Third, as expressed by its vice chairman John Barry in a note, it has the entirely wrong view about the appropriateness of the suit. Driven by its desperation for cash, it tolerates the notion that it’s entitled to pursue jackpot justice, by throwing something out there that can be used to legally separate money from presumed cash cows or to extort them into a settlement. The attitude of, “Let the courts decide our legal claims. The reality is our suit can only help improve flood protection. It cannot hurt,” subverts the democratic process not just in filing the suit without the authority to do so, but in that it is trying to get the funding in a way that obscures accountability and reduces responsibility in government.
The responsible and accountable solution would be to use its revenue-raising authority as provided by law to fund its big plans, meaning putting out ballot propositions to raise taxes or to finance debt. Then if the people approve, board members proceed. If not, they scale back their plans if the state or federal governments don’t come up with funding, even if they think that doesn’t provide enough protection. It is a democracy that we live in, they must remember, and that they do not have the right to reverse the intended order by dictating their preferences to those they are supposed to serve. If the people are unwilling to fund you, you don’t go out to find somebody else’s oxen to gore by judicial fiat, all the while declaring in the height of arrogance and conceit that it’s for “public safety.”
But they seem unable to understand this basic point, and thereby demonstrate again the often seen example of how trying to insulate an agency from political pressure instead allows it to act in a very politicized way. And to underscore the puerility of their argument, its exact opposite has come to pass in that they now have put the citizenry in a no-win situation: pursuing a suit they are unlikely to win while likely costing plenty of the people’s resources spent in the judicial arena needed to make them understand their actions attack a democratic process built upon accountability and responsibility.
Which is why the Jindal Administration needs to convince them to stop before much is squandered, and can do so in a couple of ways. If they persist in allowing filing without Jindal’s required approval, they must be told that they will not be nominated again to the board – a majority currently is operating under expired terms. That may fail to persuade because they serve until successors are appointed, and that can take awhile depending upon the vagaries of who the nominating committee of professional organizations, academicians, and interest groups produces as choices. Because of this possibility, they also need to be informed that in next year’s legislative session legislation will be introduced to remove power from the Authority to enter into contingency legal contracts without the governor’s approval and to cancel all ongoing arrangements. However, this means a solution can be a year away and the board might gamble that Jindal’s legislative majorities won’t come through on bills to clip its wings, or that it even might get a governor in the future more favorably inclined to its statist ideology, and so its reckless course may continue well past then.
In the period right after the hurricane disasters of 2005, the many levee boards that had flood control responsibility in this area of the state rightly were criticized for past politicized decision-making that contributed to the severity of the events. Establishment of this new body to assume many of the old boards’ functions was said to prevent this. Instead, we have old wine in new bottles with perhaps even more politicization than ever before.