Deep South Center for Environmental Justice, Vayla New Orleans, Justice and Beyond, 350 New Orleans, Sierra Club, Mr. Theodore Quant and Ms. Renate Heurich v. the Council of the City of New Orleans, the Utility, Cable, Telecommunications and Technology Committee of the New Orleans City Council, Jason R. Williams, Stacy Head, Susan G. Guidry, Latoya Cantrell, Nadine M. Ramsey, Jared C. Brossett, and James A. Gray, II

CourtLouisiana Court of Appeal
DecidedFebruary 12, 2020
Docket2019-CA-0774
StatusPublished

This text of Deep South Center for Environmental Justice, Vayla New Orleans, Justice and Beyond, 350 New Orleans, Sierra Club, Mr. Theodore Quant and Ms. Renate Heurich v. the Council of the City of New Orleans, the Utility, Cable, Telecommunications and Technology Committee of the New Orleans City Council, Jason R. Williams, Stacy Head, Susan G. Guidry, Latoya Cantrell, Nadine M. Ramsey, Jared C. Brossett, and James A. Gray, II (Deep South Center for Environmental Justice, Vayla New Orleans, Justice and Beyond, 350 New Orleans, Sierra Club, Mr. Theodore Quant and Ms. Renate Heurich v. the Council of the City of New Orleans, the Utility, Cable, Telecommunications and Technology Committee of the New Orleans City Council, Jason R. Williams, Stacy Head, Susan G. Guidry, Latoya Cantrell, Nadine M. Ramsey, Jared C. Brossett, and James A. Gray, II) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Deep South Center for Environmental Justice, Vayla New Orleans, Justice and Beyond, 350 New Orleans, Sierra Club, Mr. Theodore Quant and Ms. Renate Heurich v. the Council of the City of New Orleans, the Utility, Cable, Telecommunications and Technology Committee of the New Orleans City Council, Jason R. Williams, Stacy Head, Susan G. Guidry, Latoya Cantrell, Nadine M. Ramsey, Jared C. Brossett, and James A. Gray, II, (La. Ct. App. 2020).

Opinion

DEEP SOUTH CENTER FOR * NO. 2019-CA-0774 ENVIRONMENTAL JUSTICE, VAYLA NEW ORLEANS, * JUSTICE AND BEYOND, 350 COURT OF APPEAL NEW ORLEANS, SIERRA * CLUB, MR. THEODORE FOURTH CIRCUIT QUANT AND MS. RENATE * HEURICH STATE OF LOUISIANA ******* VERSUS

THE COUNCIL OF THE CITY OF NEW ORLEANS, THE UTILITY, CABLE, TELECOMMUNICATIONS AND TECHNOLOGY COMMITTEE OF THE NEW ORLEANS CITY COUNCIL, JASON R. WILLIAMS, STACY HEAD, SUSAN G. GUIDRY, LATOYA CANTRELL, NADINE M. RAMSEY, JARED C. BROSSETT, AND JAMES A. GRAY, II

CONSOLIDATED WITH: CONSOLIDATED WITH:

DEEP SOUTH CENTER FOR NO. 2019-CA-0775 ENVIRONMENTAL JUSTICE, VAYLA NEW ORLEANS, JUSTICE AND BEYOND, 350 NEW ORLEANS, SIERRA CLUB, MR. THEODORE QUANT AND MS. RENATE HEURICH

VERSUS

THE COUNCIL OF THE CITY OF NEW ORLEANS, THE UTILITY, CABLE, TELECOMMUNICATIONS AND TECHNOLOGY COMMITTEE OF THE NEW ORLEANS CITY COUNCIL, JASON R. WILLIAMS, STACY HEAD, SUSAN G. GUIDRY, LATOYA CANTRELL, NADINE M. RAMSEY, JARED C. BROSSETT, AND JAMES A. GRAY, II APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2018-03843, DIVISION “I-14” Honorable Piper D. Griffin, Judge ****** Judge Dale N. Atkins ****** (Court composed of Chief Judge James F. McKay, III, Judge Paula A. Brown, Judge Dale N. Atkins)

Monique C. Harden DEEP SOUTH CENTER FOR ENVIRONMENTAL JUSTICE 9801 Lake Forest Blvd. New Orleans, LA 70127

William Patrick Quigley LOYOLA UNIVERSITY - SCHOOL OF LAW 7214 St. Charles Avenue Box 902 New Orleans, LA 70118

Alexander "Sascha" Bollag GREEN JUSTICE LEGAL 540 Broadway Street, Room 304 New Orleans, LA 70118

Susan Stevens Miller EARTHJUSTICE 1625 Massachusetts Avenue, N.W. Suite 702 Washington, DC 20036

COUNSEL FOR PLAINTIFF/APPELLEE

Richard C. Stanley W. Raley Alford, III Kathryn W. Munson STANLEY, REUTER, ROSS, THORNTON & ALFORD, L.L.C. 909 Poydras Street Suite 2500 New Orleans, LA 70112 Corwin M. St. Raymond Deputy City Attorney William R. H. Goforth Assistant City Attorney Donesia D. Turner Senior Chief Deputy City Attorney Sunni J. LeBeouf CITY ATTORNEY 1300 Perdido Street City Hall - Room 5E03 New Orleans, LA 70112

Adam J. Swensek Executive Counsel NEW ORLEANS CITY COUNCIL 1300 Perdido Street, Room 1E6 New Orleans, Louisiana 70112

Timothy S. Cragin Harry M. Barton ENTERGY SERVICES, INC. 639 Loyola Avenue L-ENT-26E New Orleans, LA 70113

James M. Garner Debra J. Fischman Stuart D. Kottle SHER GARNER CAHILL RICHTER KLEIN & HILBERT, L.L.C. 909 Poydras Street Suite 2800 New Orleans, LA 70112

COUNSEL FOR DEFENDANT/APPELLANT

AFFIRMED IN PART AND REVERSED IN PART FEBRUARY 12, 2020 Appellants, Entergy New Orleans, LLC (“Entergy”) and The Council of the

City of New Orleans (the “Council”), appeal the trial court’s June 14, 2019

judgment voiding the Council’s March 8, 2018 decision to adopt Resolution R-18-

65 (the “Resolution”), which granted Entergy authorization to build the New

Orleans Power Station (the “NOPS”) in New Orleans East due to the violations of

the Open Meetings Law, La. R.S. 42:11, et seq. that occurred at the Council’s

February 21, 2018 Utility, Cable, Telecommunications, and Technology

Committee (the “Committee”) meeting. For the reasons that follow, we affirm the

decision of the trial court in part and reverse in part.

FACTUAL AND PROCEDURAL BACKGROUND

On June 20, 2016, Entergy filed an initial application with the Council for

authorization to build the NOPS. The Council established Council Docket No. UD-

16-02 to consider the application. The Council set a procedural schedule for

Entergy’s application, which directed, among other things, that Entergy hold public

meetings on the NOPS to give information to members of the public and provide

the public an opportunity to comment. The Council adopted another resolution on

August 10, 2017, which ordered an additional public hearing to be held in the

1 Council Chamber on October 16, 2017.1 Several public interest groups intervened

as parties to the Council Docket No. UD-16-02, including Deep South Center for

Environmental Justice, 350 New Orleans, and the Sierra Club.

Following the completion of the procedural schedule under the Council

Docket No. UD-16-02, the Committee met on February 21, 2018, to consider the

Resolution to construct the NOPS. If approved by the Committee, the Resolution

would then be recommended to be considered by the full Council. An agenda

published five days prior to the meeting stated that each party to the proceeding

would be given fifteen minutes for closing argument, and each non-party would be

allowed two minutes for comment. However, while supporters of Entergy (who

were later discovered to be actors paid to attend the meeting and show support for

Entergy) were given preferential access to the meeting room, approximately fifty

to sixty members of the public were prohibited from entering the meeting due to

purported limited space. The procedures outlined in the agenda regarding who was

allowed to speak at the meeting were not followed. Representatives of Entergy,

which was a party to the proceeding, were allowed to give public comment during

the portion of the meeting reserved for non-party comment, while representatives

of other interested parties did not give a comment due to their belief that it was

prohibited by the agenda. At the conclusion of the meeting, the Committee voted

four-to-one to refer the Resolution to the full Council.

1 The October 16, 2017 meeting is not before this Court on appeal. However, there were several members of the public who attended this meeting, and not all those who attended were able to enter the meeting. Appellees argue that, because many members of the public were prohibited from entering the meeting room due to limited space while Entergy supporters were seemingly allowed immediate entry into the meeting on October 16, 2017, the Council should have anticipated the interest in Entergy’s application to build the NOPS, and planned accordingly for the Committee and Council meetings.

2 A full Council meeting was held on March 8, 2018. Once again, there was a

large attendance at the meeting, and some attendees were not given immediate

access due to limited space. However, unlike the Committee meeting, all those

who wished to observe the meeting and provide comments were eventually given

an opportunity to do so. At the conclusion of the meeting, the Council voted six-to-

one to approve the construction of the NOPS.

On April 19, 2018, Deep South Center for Environmental Justice, VAYLA

New Orleans, Justice and Beyond, 350 New Orleans, Sierra Club, Mr. Theodore

Quant, and Ms. Renate Heurich (collectively, the “Appellees”) filed a Petition to

Enforce the Louisiana Open Meetings Law, For Declaratory Judgment, Injunction,

Attorneys’ Fees and Costs, and Memorandum in Support (“the Petition”) in

Orleans Parish Civil District Court. The Appellees asked the trial court to declare

that the February 21, 2018 Committee meeting and March 8, 2018 Council

meeting violated Open Meetings Law; to declare the Resolution of the March 8,

2018 meeting void; and to enjoin Appellants from constructing the NOPS.

Appellees alleged that, 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, the Open Meetings Laws were violated at

both the Committee and the Council meetings. As attachments to the Petition,

Appellees included the affidavits of several individuals who attested to being

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Deep South Center for Environmental Justice, Vayla New Orleans, Justice and Beyond, 350 New Orleans, Sierra Club, Mr. Theodore Quant and Ms. Renate Heurich v. the Council of the City of New Orleans, the Utility, Cable, Telecommunications and Technology Committee of the New Orleans City Council, Jason R. Williams, Stacy Head, Susan G. Guidry, Latoya Cantrell, Nadine M. Ramsey, Jared C. Brossett, and James A. Gray, II, Counsel Stack Legal Research, https://law.counselstack.com/opinion/deep-south-center-for-environmental-justice-vayla-new-orleans-justice-and-lactapp-2020.