On April 19, 2018 the Deep South Center for Environmental Justice, VA YLA New Orleans, Justice and Beyond, 350 New Orleans, Sierra Club, Mr. Theodore Quant, and Ms. Renate Hcurich filed a lawsuit alleging that the New Orleans City Council and the Council’s Utility Committee violated Louisiana’s constitution and Open Meetings Law at two recent meetings related to Entergy New Orleans’ application to build a gas plant in New Orleans East.
The lawsuit alleges that the New Orleans City Council’s Utilitity Committee’s February 21st meeting and the City Council’s March 8th meeting had violated Louisiana’s constitution and Open Meetings Law because members of the public were prevented from entering the meeting for observation and comment and supporters of Entergy were given preferential access to the meetings.
Orleans Civil District Court | No. 2018-3843
Fourth Circuit | No. 2019-CA-0774 c/w 2019-CA-0775
Supreme Court of Louisiana | No. 2020-C-00771
Public Access to Meetings
Utility Influence & Paid Actors
Environmental Racism
On June 14, 2019, Judge Piper Griffin of the Orleans Parish Civil District Court, ruled that the laws on public observation and comment had been violated and that the proposal’s approval was voided.
In July of 2019, the City Council appealed the decision of the Orleans Parish Civil Court in the Fourth Circuit Court of Appeals.
On February 12th, 2020, the Fourth Circuit Court of Appeals issued a new ruling which affirmed that the City Council had violated laws on public observation and comment at the utility committee meeting but reversed the lower court’s decision that the approval of the proposal should be voided because the laws were not violated at the city council meeting.
“Right now, we are looking at a situation where there is no consequence for a violation of the open meetings law by a council committee,” said Monique Harden, who represents the Deep South Center for Environmental Justice. This new decision has further been appealed by Deep South Center for Environmental Justice et al. and will be heard by the Louisiana Supreme Court.
On March 20th, 2020 the Deep South Center for Environmental Justice, et al. filed a writ application in the Louisiana Supreme Court asking the Supreme Court to overturn the decision of the 4th Circuit.
While this lawsuit and subsequent appeals is still making its way through the courts, the 128-megawatt gas power plant located in Michoud – commonly referred to as The New Orleans Power Station, or NOPS – went into operation on May 31, 2020. Entergy has already collected $30 million from New Orleans customers for the new gas plant. The money collected is the first year of installment payments. There will also be additional installment payments and costs for fuel, maintenance, and management. The total cost for the gas plant will be $650 million which New Orleans residents and future generations are on the hook to pay Entergy for the next 29 years.
In June of 2016, Entergy New Orleans announced plans to construct a $216 million, 226 megawatt gas-burning power plant in New Orleans East. Entergy claimed the gas power plant – commonly referred to as The New Orleans Power Station or NOPS – was necessary to replace two older and less efficient plants. Company representatives claimed that the plant would deliver energy at low cost to consumers and increase the electrical grid’s resiliency in response to severe weather events.
Yet the proposed plant faced widespread community opposition. The plant was to be constructed in a predominantly African American and Vietnamese American neighborhood of New Orleans East. Opponents of the plant claimed that the plant would contribute to climate change, increase the risk of flood, and produce toxic air pollution that would disproportionately impact communities of color. In response to this community opposition, Entergy announced plans for a scaled-back version of the power plant. The scaled-back plans called for a 128 megawatt gas-burning plant that would cost $210 million according to company estimates.
On February 21, 2018, the New Orleans City Council’s Utility, Cable, Telecommunications, and Technology Committee (UCTTC) met to consider Entergy’s proposal to construct the new gas power plant. The committee meeting was scheduled to start at 10AM on February 21, 2018 however by 9:15AM, the doors to the meeting room were locked and no members of the public were permitted to enter. Although both the Louisiana Constitution and the state’s Open Meetings Law require that meetings of public bodies be open to members of the public for observation and comment, ultimately approximately 50 to 60 community members were denied entry to the meeting.
“At 9:20 a.m. I was told by security guards that the meeting was at capacity and that we would not be allowed to enter the room. We were confused, especially because individuals in suits were still permitted to enter the meeting yet members of the New Orleans East community and others were not. None of our community members — who were wearing shirts stating No Gas Plant — were allowed to enter the meeting,” said Minh Thanh Nguyen, founder and executive director of the Vietnamese American Young Leaders Association of New Orleans (VAYLA), in a sworn affidavit.
Entergy was found to have paid actors to attend and speak at the meeting in support of the plant. These paid actors took up seats that could have otherwise gone to community members and created a false impression of community support for the plant. Despite community opposition, the committee ended up approving Entergy’s proposal to construct the new gas power plant in a 4-1 vote.
Following the committee’s vote, the proposal was granted final approval at a meeting of the City Council on March 8, 2018. This meeting also faces claims of violating the state’s constitution and Open Meetings Law. Although members of the public that wished to attend the meeting were asked to wait in line outside the City Council chambers, more than a dozen Entergy employees and supporters were let into the meeting through a private, back entrance. As a result, 20 to 30 community members were forced to wait outside the meeting room for hours until someone left so they could enter.
On July 2, 2019 the Honorable Judge Piper D. Griffen ruled in favor of the petitioners finding that Open Meetings Laws were not adhered to and vacating the original ruling approving Entergy New Orlean’s application to build the New Orleans Power Station (NOPS).
THE COURT: I don’t see that they [the City Council] did anything wrong, but even though they did nothing wrong the reality becomes this; the citizens of New Orleans have to believe in the process and trust the process. And to believe in and trust the process they have to have an appreciation that the process itself is one in which their voices are heard. The City’s investigation showed they were paid citizens, that those paid citizens are present and to some extent may have skewed the presentation…in making this decision I have to look at…whether there is substantial compliance to make sure that there is in fact adherence to the policy behind the Open Meetings Laws….In essence what I’m saying is that En[t]ergy’s actions undermined the Public Meetings Laws….I would ask that Petitioners simply prepare a judgement that vacated the original ruling finding that the Open Meetings laws were not adhered to as relates to the meaning and policy behind the Open Meetings Laws.
Judge affirmed the Orleans Civil District Court ruling that there was a violation of the Open Meetings Law and reversed the court’s judgement voiding the Council’s vote to approve Entergy New Orlean’s application to build NOPS.
Appellants, Entergy New Orleans and The Council of the City of New Orleans appeal the trial court’s June 14, 2019 judgement voiding the Council’s March 8, 2018 decision to adopt Resolution R-18-65, which granted Entergy authorization to build the New Orleans Power Station (NOPS) in New Orleans East due to the violation of the Open Meetings Law, La. R.S. 42:11, et seq. that occurred at the Council’s February 21, 2018 UCTTC meeting.
For the foregoing reasons, we affirm the trial court’s findings that there was a violation of the Open Meetings Law at the Committee meeting and reverse the trial court’s judgement voiding the Council’s vote to approve the Resolution at the Council meeting.
Statement of Writ Considerations: The Fourth Circuit misinterpreted the application of the Open Meetings Law to a public deliberative process in which an advisory committee violated the statute, and issued an Opinion that will have a significant detrimental effect on the public interest, meriting review under La. S.Ct. Rule X, §1(a)(4).
Opposition to Defendants’ Application for Writ of Certiorari filed on July 1, 2020.
