After the Southeast Louisiana Flood Protection
Authority-East sued nearly a hundred petroleum extraction companies or
their successors for reputed damage to the Louisiana coastline over decades and
the Louisiana Legislature responded by legislating to negate that and Gov.
Bobby Jindal began using his gubernatorial powers to pick members to the
SLFPA-E opposing the suit, howls came from some about how such tactics produced
(in the words of one Advocate opinion
writer) a “loss
of independence” concerning a board that many wished somehow was above
politics. The suit now functions on life support after a federal
judge routed it out of court in a way that almost nobody believes it has
any of chance of survival on appeal.
Except, of course, for the lawyers
who, with renegade former members of the SLFPA-E’s governing board Tim Doody
and John Barry, concocted a contract approved by the board that means any
attempt for the agency to stop the suit before it is concluded means it owes a
huge payday of taxpayer dollars to the Jones Swanson Huddell & Garrison law
firm and the discretion to pursue the suit lies totally in the firm’s hands, which the firm has chosen to continue despite the Advocate's pleading to desist. The nature
of the contract leads to disputation over the final disposition, but that could
be anything from, at worst, losing or withdrawing and the agency (read "taxpayers") owing the firm perhaps
into the eight figures of dollars to, at best, doing either and losing nothing
monetarily.
The Advocate’s editorialists caught on to that, and now complain that “the
agency’s independence is under attack again,” suggesting perhaps they are
having second thoughts about that concept of “independence.” As well they
should; that they and others ever conceived of the board as something above
politics displayed profound ignorance about the nature of government and politics.
Quite simply, policy-making is by definition an exercise in politics, for the
latter is concerned with the acquisition and deployment of power. Give any
agency any power over any area of policy, and it will act politically in that
it will favor certain interests at the expense of others.
Not only by definition is use of
power political in that choices are made of what to do, when to do it, and how
to do it, but also that, as we live in a world of scarce resources where nobody
can have everything go his way in terms of policies and their outcomes, winners
and losers are created as a result of its use. And to think that ideologies and
political agendas do not serve as inputs to the decisions made about what,
when, how, and who benefits connotes an astonishing flight from reality. “Independence”
from politics as a quality of these organizations is nothing more than fantastical myth.
That was evident
from the very start of the suit, as Barry and others admitted it was an
exercise to treat oil companies as piñatas
to score bucks by which to fund the agency’s grandiose – and politically
determined – agenda. For the same mechanisms that attempt to insulate from
political pressure also seal off the agency from responsibility and
accountability, allowing formation of a rogue mentality to fester that owes
fealty only to the political prejudices of whatever majority may control it.
Worse, in the instance of this suit
the politics may have gone beyond just the ideological. After his ouster, Barry
created an organization called Restore
Louisiana Now, dedicated to the suit’s success. But when asked
last year at an SLFPA-E board meeting whether the firm had contributed
money to the organization, after initially insisting not, Barry amended his
remarks to that “he was not certain about that” and that he would neither
confirm nor deny receipt of any donations from it, stating that as Internal
Revenue Code Section 501(c)(4) organization he (as an officer of it) was
not obligated to reveal any information about its donors. This only fueled speculation
that some quid pro quo occurred in
the selection process for lawsuit representation, as some of the new board
members not involved in the process have questioned how it occurred and
whether it complied with procedures, where Doody (the former chairman) admitted
the process was kept intentionally out of public and during meetings and
compared to those in the media made contradictory statements about the process.
Regardless of whatever deals might
have been struck (there is no hard evidence, only circumstance, to assert that
any were), this is what happens when a runaway board joins forces with a
runaway law firm, neither accountable to the public. That it would consent to
the “poison pill” arrangement that sought to lock it into a certain agenda,
designed specifically to prevent its dismantlement, only magnifies for all to
see the inherent politicization infused in it. Even if the likes of the Advocate see now at least two instances
of non-independence, that it may continue to be unwilling to admit that
politics infested the organization all along and drove the decision to sue on
that basis does not negate the fact that politicization in decision-making has
infested the agency from the start, and guided this incident from the time a
majority entertained the notion to sue on the basis that it did, in order to
fulfill an ideological agenda.
That has unfortunate ramifications
for the public, even if it all ends with no taxpayer dollars spent directly on
the suit. For what of all the time and effort wasted on this Ahabian adventure
that could have been allocated towards the more mundane tasks of flood
protection? Of that of legislatures and courts needed to check such ambition? Of
that of executive attention to change the ideological direction of the board?
Surely without this distraction policy-making in this issue area more
effectively could have addressed the core mission of the agency.
Properly understood, this whole saga
has been about reining in an agency following an agenda against the interests
of the people, because ideological conflict cannot be suppressed in this or any
other government organ no matter how detached from politics it’s supposed to be.
Maybe the Advocate and others only now
are figuring this out, but it’s better to be late to the party than not show up
at all.
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