City Council goes before state appeals court seeking to overturn ruling against Entergy plant by MICHAEL ISAAC STEIN

By MICHAEL ISAAC STEIN
​Article originally published by The Lens
JANUARY 6, 2020

A colorful protest against Entergy's gas plant in eastern New Orleans, held in front of the Fourth District Court of Appeals. (Michael Isaac Stein/The Lens)

The New Orleans City Council went to state appeals court on Monday in an attempt to reverse a June ruling in Civil District Court that voided the 2018 vote approving Entergy New Orleans’ controversial power plant in eastern New Orleans. ​​

In the June ruling, Judge Piper Griffin found that Louisiana’s Open Meetings Law was “undermined” because one of Entergy’s subcontractors hired actors to show up early to a public meeting on the plant, while unpaid residents were unable to get in because the room was at capacity. 

The City Council appealed that decision to the Fourth Circuit Court of Appeal, and on Monday, a panel of three judges — Judge James McKay, Judge Paula Brown and Judge Dale Atkins — listened to oral arguments from the City Council, Entergy New Orleans and the coalition of environmental and consumer advocates that filed the original lawsuit against the council. 

There has been some tension between Entergy and the City Council in recent weeks. The utility launched two lawsuits against the council in December over votes setting utility rates and imposing a $1 million fine against the company. But on Monday, Entergy and the council were sitting on the same side of the table. Though Entergy was not a named defendant in the original suit, the company has intervened in the case and is paying for outside, private attorneys to represent the City Council, according to an August council motion. 

The council’s private attorney, James Garner, stressed two arguments for why the appeals court should reverse the lower courts’ ruling. First, he pointed out that in the lower court ruling, the judge said that the council “did nothing wrong.” Instead, the judge placed the blame on Entergy for its involvement in the paid actor scandal. Garner argued that there could not be an Open Meetings Law violation as the result of actions taken by a private company.

Second, he argued that the meeting at which the violation occurred didn’t actually matter. The February 2018 meeting was a utility committee meeting, not a full City Council meeting. During the February meeting, the committee voted in favor of recommending approval for the power plant and moved the issue to the full council. The full council gave the final thumbs up for the plant at a March 2018 meeting. 

“The meeting wasn’t required, wasn’t necessary,” Garner argued on Monday. “The only meeting that counted was the March 8 meeting.”

Some found that to be an unsettling argument to come from the City Council, including a former council member who was named as a defendant in the suit. Susan Guidry, who left the council in 2018, a few months after the March vote, was the sole council member to vote against the plant at the February and March meetings. She attended Monday’s hearing. 

“To say our committee votes are irrelevant, it’s shocking to hear that from a city council lawyer,” she told The Lens after the hearing.

The panel of judges also heard arguments on a second lawsuit filed by a similar coalition that, like the first suit, called into question the legitimacy of the council’s decision to approve the gas plant. Griffin ruled in favor of the city in that suit. On Monday, the council argued that ruling should be upheld. 

The judges will likely issue rulings in the coming weeks or months. 
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‘Paid citizens have the same right to attend public meetings’

​As The Lens first reported in March 2018, and as the City Council later confirmed with its own investigation, one of Entergy’s subcontractors hired dozens of people, including some professional actors, to go to two City Council meetings and support the plant. One of those was the February 2018 utility committee meeting. 

At the time, the City Council chamber was under construction, so the meeting was held at a smaller auditorium at the Pan American Life Building. The day before the meeting, an Entergy executive sent an email to several other employees.

“I received confirmation that the room will open at 8:30 am,” the email said. “Let’s get as many of our folks there ahead of the bus from NO East.”

That email was forwarded to the man who organized the hired plant supporters, who then agreed to get them to the auditorium at 8 a.m., two hours before the meeting began. The email was likely referencing two buses organized by the nonprofit VAYLA New Orleans to transport concerned residents of eastern New Orleans to the meeting. VAYLA is part of the coalition suing the council. 

The buses from eastern New Orleans arrived at 9:20 am, 40 minutes before the meeting began, according to a court filing from the plaintiffs. The filing claims that the 67 residents that came on the buses, largely made up of residents of eastern New Orleans, were informed that the auditorium was full and that they couldn’t enter. 

Some of those residents would later be let into the meeting or allowed to fill out comment cards.

The Louisiana Open Meetings law requires all meetings of public bodies to be open to members of the public. There are some exceptions to the law, such as executive sessions to discuss ongoing litigation. However, the council has not argued that any exception applied to the February meeting. Instead, they argued that “the District Court’s ruling was premised on private conduct—conduct beyond the control of the City Council.” 

Several people, including resident Danil Faust, warned the council that people were being paid to attend meetings prior to and during the February meeting. 

“It is not the duty of government to establish acceptable grounds for citizens to attend public meetings and speak on matters of public consequence,” the council’s written filing said. “Indeed, paid citizens have the same right to attend public meetings as unpaid citizens.”

The attorney for the plaintiffs, Susan Stevens Miller, argued that whatever the reason the room filled to capacity, it was the responsibility of the council to ensure that the public could participate in the meeting. 

“The utility committee absolutely lost control of its meeting,” she argued on Monday. She said that her clients’ rights were violated regardless of whether the council intentionally and knowingly did something wrong. 

She also pushed back against the council’s assertion that the February vote was meaningless. 

“It’s the process, not the result, that matters when it comes to the Open Meetings Law,” she said. She reminded the panel of judges that they were not asking the court to shut down Entergy’s power plant. Instead, she said, the plaintiffs were only asking for a decision making process that adhered to the Open Meetings Law. 

After that, Miller said, the council could make any decision it wanted, even if that decision is to once again approve the plant. 

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MICHAEL ISAAC STEIN
​Michael Isaac Stein covers New Orleans' cultural economy and local government for The Lens. Before joining the staff, he freelanced for The Lens as well as The Intercept, CityLab, The New Republic, and... More by Michael Isaac Stein