Judge says City Council’s votes on Entergy plant violated state law

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Michael Stein / The Lens

Garrett Wilkerson, left, and Daniel Taylor, right, recruited actors to speak in favor of the power plant during City Council committee meetings in October 2017 and February 2018.

Orleans Parish Civil District Court Judge Piper D. Griffin on Friday ruled that the New Orleans City Council violated the state’s Open Meetings Law in 2018, when dozens of residents were barred from entering two public hearings on Entergy New Orleans’ proposed $210 million power plant in eastern New Orleans.

Griffin also issued a ruling on a second lawsuit related to Entergy’s power plant, this time in favor of the city. The second lawsuit that argued that the council’s utility consultants played conflicting roles as both advocates for the plant and fact-finders for the City Council, violating the plaintiffs’ due-process rights.

In both lawsuits, the plaintiffs — community groups and environmental advocacy organizations — were asking the court for the same thing: to rescind the Council’s prior approval of the plant and start the process all over again.

“Entergy no longer has approval to construct, so they can’t keep going forward,” said Susan Miller, an attorney for the Alliance for Affordable Energy. “What the City Council now has to do is decide what they’re next step is going to be. At the very least, if they want to approve the gas plant again, they will have to hold the public meetings that they didn’t do the right way before.”

The groups filed the lawsuit weeks after the City Council approved the plant. Leading up to that final vote in March 2018, the council’s utility committee held two public hearings to discuss the proposal. All three meetings were filled to capacity, leaving members of the public outside and unable to participate.

The lawsuit argued that a February committee meeting and the final vote on March 8 violated the state’s Open Meetings Law, and that the decisions made at those meetings should be voided.

A month after that lawsuit was filed, The Lens reported that one of Entergy’s subcontractors had paid dozens of people to come to those meetings and pose as supporters of the plant. The suit said that the tactic exacerbated the Open Meetings violations.

The day before the February meeting, Entergy New Orleans executive Gary Huntley emailed other Entergy employees advising them that the meeting room opened an hour before the hearing started. That meeting was held in an office building in the Central Business District due to renovations in the City Council Chamber.

“Let’s get as many of our folks there ahead of the bus from NO east,” he wrote.

The bus that Huntley presumably referred to was organized by VAYLA New Orleans, a community group that opposed the power plant. The suit claimed that the eastern New Orleans residents who were on that bus were not allowed to enter the meeting, despite arriving 40 minutes early.

“I’m really happy with the decision,” said Monique Harden of the Deep South Center for Environmental Justice after the ruling was issued. “The city council’s decision approving the gas plant is now found invalid because of the Open Meetings Law violation. And that means a new day for public meetings and a new determination by the City Council.”

The Open Meetings Law states that “every meeting of any public body shall be open to the public.” If there is a violation of the law, a court can void any decision made in that meeting, as long as a lawsuit is filed within 60 days of the violation.

The open meetings lawsuit was filed on April 19, 2018 — 57 days after the February utility committee vote and 42 days after the full council gave its final approval. The court hasn’t released a written opinion on the case yet.

“Judge Griffin made it clear that the past City Council acted appropriately and that it was Entergy New Orleans that undermined the process,” said Councilwoman Helena Moreno, who now chairs the utility committee, in an emailed statement. “Under the advisement of the City Attorney, we await the judge’s order.”

The council could still appeal the decision. The City Attorney’s Office did not immediately respond to a request for comment.

“While we do not agree that there was a violation of the Open Meetings Law, even if such a violation occurred, it had no impact on the decision of the full Council’s authorizing the construction of the plant,” Entergy spokesman Neal Kirby said in an emailed statement.

The lawsuit also claimed that there was a second Open Meetings violation at the February committee meeting. Another stipulation of the Open Meetings Law is that “the agenda shall not be changed less than twenty-four hours” before the meeting.

The agenda for February’s meeting said that any party named in council utilities docket which included Entergy New Orleans and the Deep South Center for Environmental Justice, would get 15 meetings each for closing arguments. It also said that “each speaker, not parties, will be allowed 2 minutes” to comment.

According to the lawsuit, this provision meant that any party that was formally involved in the decision-making process leading to the plant vote couldn’t submit comment cards. That included Entergy New Orleans, but also the Deep South Center for Environmental Justice, which had intervened in the council utilities “docket.”

According to the suit, the council committee didn’t follow this rule and allowed those parties to submit the cards and speak for two minutes. It says that this agenda change was never announced.

“It is impossible to know how many members of the Deep South Center for Environmental Justice, the Sierra Club, 350 New Orleans, and the Alliance for Affordable Energy did not attend the meeting because they believed, based on the meeting agenda, that they would not be permitted to speak,” the suit said.

While issuing her decision, Griffin pointed to Entergy’s tactics at these meetings. As The Lens has previously reported, one of the company’s contractors, the Hawthorn Group, hired another company called Crowds on Demand to pay people to show up and act as supporters. Some  were given scripts to read during the public comment portion of the meeting.

Earlier this year, the Council considered rescinding its prior approval of the power plant and restarting the process. That plan was scrapped after Entergy informed the council that it had already spent $96 million on the plant and that the city could be on the hook even if the plant was never built.

Instead, the council levied a $5 million fine on the company.

“We’ve been dealing with this for years,” said eastern New Orleans resident Dawn Hebert on Friday after the rulings were announced. “We knew people were being locked out, we knew that their rights were being violated. And we just want justice.”

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