Jackson Free Press

Northside Sun Publisher Wyatt Emmerich declared in a recent column that the Rankin-Hinds Pearl River Flood and Drainage Control District should appoint Jackson oilman John McGowan to head the board's technical advisory committee. The committee will work with the U.S. Army Corps of Engineers to devise flood control for the section of the Pearl River between Hinds and Rankin counties—and is considering a controversial plan developed by McGowan himself.

"As head of the levee board's technical advisory committee, McGowan would have the official standing necessary to shepherd Two Lakes through the legal and engineering regulatory approval obstacle course," Emmerich wrote.

After years of indecision and roadblocks, the Corps told the local levee board in August that it had to agree on a flood-control plan for the Pearl River by the end of September—and warned that two plans, one being McGowan's, are likely already dead in the metaphorical water due to environmental concerns and financial barriers.

The board is mulling two alternatives to a Corps-endorsed levees-only plan; both would take land by eminent domain, then flood the Pearl between Hinds and Rankin counties. The smaller 1,500-acre Lower Lake plan would cost $605 million. McGowan says he can build an even bigger lake plan consisting of a 4,133-acre lake containing 36 islands ranging in size from 1.6 acres to 40 acres, for $336 million to $400 million.

Outsmarting the Enemy

McGowan is pushing hard for his plan, even in the face of a Corps confession that the federal agency is not seriously considering either of the lake plans as a viable alternative to levees. "Federal law may have changed some things regarding the economic feasibility of the lake plan, but as far as environmental concerns, the levee plan is really the only plan that meets our criteria," Gary Walker, project manager for the Army Corps of Engineers' Vicksburg district, said in August.

But Emmerich argues that the oilman has the wiles to put one over on environmentalists looking to stall his project, which will impact 12,000 acres of rare wetlands. "What people fail to understand is that McGowan's huge success as a businessman is due to his phenomenal ability to outsmart the environmentalists and win approval," he wrote.

Indeed, McGowan has long fought environmentalists. In 1993, the Sierra Club launched a suit against Mississippi oil company, Cedar Point Oil, for violating the federal Clean Water Act by discharging wastewater from oil wells into Galveston Bay, Texas, without a permit. The U.S. District Court for the Southern District of Texas fined the company, of which McGowan was the principal shareholder, $186,070, and gave the Sierra Club almost $83,000 in attorneys' fees. The court later modified the injunction to allow Cedar Point to continue the discharge. The Fifth Circuit Court of Appeals affirmed that decision in January 1996.

Ironically, considering the role he wants the government to play in his Two Lakes strategy, McGowan is listed as a member of the policy board of the Lincoln Heritage Institute, an ultra-conservative group "established to promote individual and states' rights, a free-market economy, and a modest role for the federal government." The group regularly proselytizes against environmentalists, not to mention public-school funding, taxes and intrusion of private-property rights; it favors privatization of government services, the "abusive tax code" and the "sovereignty of the American people."

The group's Web site links to a variety of hard-right groups including the John Birch Society, the Eagle Forum and the Free Congress Society. The current lead story on the Web site (lincolnheritage.org) is "Stalinist Tactics Back Pelosi's Jihad Against Oil Drilling," and a front-page image calls the United Nations a "Home to Socialists, Dictators and a Nest of Anti-Americanism."

The group gave McGowan its "Guardian Award" for taking on environmentalists. McGowan wrote a column in 1998, available on the institute's Web site, blasting environmentalists and charging that judges "consider compliance with environmental rules to be the only issue to consider in their courts, not if the rules are correct or not."

"The courts have never succeeded in telling the truth in the environmental realm. ... Because the rules appear to be based on scientific findings, the courts feel incompetent to question them," he wrote.

McGowan argued that defense attorneys should not have to argue whether or not they comply with environmental law, but be granted a chance to dispute environmental law altogether.

The levee board's attorney likely will get to do exactly that should they decide to make his dream their "locally preferred" option.

Lawsuits Looming?

McGowan has made clear that he has an interest in the committee assignment. After the last levee board meeting recessed, McGowan asked the board to have a technical committee formed before approaching the Corps. But board members had already recessed the short meeting after deciding that any further decision regarding flood control and the Pearl should wait until the board had conducted its Sept. 28 meeting with the Corps in Vicksburg

Each board member gets to appoint a person to serve on the technical advisory committee. Pearl Mayor and board member Brad Rogers, who replaced former Pearl Mayor Jimmy Foster during the Republican primary, told the board that he had his pick for the technical committee already selected.

Rogers would not volunteer the name of his pick: "I'm still trying to convince him that he wants the job," Foster said.

The Jackson Free Press reported in May that Rogers won the Pearl Republican primary after significant contribution from McGowan Working Partners. Rogers received at least $5,500 in campaign contributions from McGowan and his associates.

Emmerich declared in his editorial that "The defeat of Pearl Mayor Jimmy Foster has altered the levee board," and that "The tilt is swinging to McGowan."

Maybe. The JFP also revealed that McGowan had given $6,000 to the unreported Better Jackson PAC, which staunchly supported a Two Lakes supporter and opponent of Harvey Johnson Jr., in the Jackson Democratic Primary and subsequent run-off. (See: Better Jackson PAC coverage.

Johnson remains uncommitted to the idea of McGowan serving in that capacity on the board. "I think the committee's purpose is to provide technical oversight to the process that will be undertaken by the Corps, so I would assume there would have to be some sort of objective oversight," Johnson said, adding that he did not feel McGowan qualified for that reason.

Read more:
Archive of Two Lakes/Pearl River coverage
Better Jackson PAC Investigation

Previous Comments

ID

152239

Comment

John Birth Society It's "Birch," Ronni. Funny typo however. :)

Author

Ironghost

Date

2009-09-23T12:27:29-06:00

ID

152241

Comment

I fixed it, Iron. As far as typos go, it's definitely funny.

Author

Ronni_Mott

Date

2009-09-23T12:39:55-06:00

ID

152244

Comment

That was *my* typo; sorry about that. Thanks, Iron.

Author

DonnaLadd

Date

2009-09-23T13:07:12-06:00

ID

152248

Comment

I was just pointing out how funny it was. I've read an inordinate amount of Bircher lit in the past, and it's odd. I have a hard time thinking of them as "Ultra-Conservative", they're more "Whacko".

Author

Ironghost

Date

2009-09-23T13:29:31-06:00

ID

152249

Comment

Didn't McGowan get popped by the EPA or DEQ for illegally draining salt water (IIRC) from one of his wells?

Author

Pilgrim

Date

2009-09-23T13:29:52-06:00

ID

152255

Comment

Iron, I tend to think of "ultra-conservative" as the politically correct pseudonym (or near pseudonym) for "whacko." ;-) As I was reading the story, I couldn't help but think that there's not a lot of scratching needed to uncover "ultra-conservative" connections 'round these parts.

Author

Ronni_Mott

Date

2009-09-23T15:19:17-06:00

ID

152270

Comment

I wonder if this "two lakes plan" could deal with rains of the magnitude that fell in Georgia this week? I suspect not. I never cease to be amazed by conservatives that take a Luddite view of climate change. We were very fortunate this week. The flooding in Georgia could have happened here had the rain band been 300 miles to the west.

Author

Jeffery R

Date

2009-09-24T00:03:10-06:00

ID

152288

Comment

The article I wrote for the Lincoln Heritage Institute described a situation where an Environmental Agency can bring action against someone for violating agency rules. If the individual disputes the violation, the agency will conduct a hearing in which the same agencies personnel acted as judge and jury. The hearing officers then find in their own favor on the scientific facts; the same scientific facts agency based their regulations upon. If they did otherwise, how could the agency justify its rule? I don't think anyone, including a governmental agency, is ALWAYS right about the science of something, do you? But on court appeal, the judge will not even give the individual the opportunity to disprove the agencies science, according the agency the "substantial evidence rule". The court considers the agency to be a "lower fact finding body" (like the jury in a typical court proceeding). By this precedent, the judge will not over-rule the agency on the agencies own science. I believe this violates one of the oldest principals of classical liberalism, impartiality in judgment by your peers. This is what the article was about. I would like to know how you and your readers feel about this. I encourage you and your readers to look at the entire article. http://www.lincolnheritage.org/articles/address/2004toNow/judiciary/the_reality_of_environmental_litigation.html John McGowan

Author

John McGowan & Robert Muller

Date

2009-09-24T15:31:40-06:00

ID

152289

Comment

Thanks for posting, Mr. McGowan. We did look at the entire article, and the entire site, and encourage others to as well. You will note that no one is making the argument that a governmental agency is *always* right about the environment, or anything else, but it often is; I assume you wouldn't make the argument that it never is, right? Personally, my biggest concern is that we are going to end up in court for many years to come over your plan. And we just don't have all that time before we have to do something on flood control. I get the feeling from your writings that you relish taking on the environmentalists (which include environmental watchdog agencies) because you believe they are often wrong and shouldn't have the right to tell people what they can and can't do; that's fine for you to want to fight that fight for your private projects.

Author

DonnaLadd

Date

2009-09-24T15:45:26-06:00

ID

152290

Comment

BTW, here's info on the Sierra Club lawsuit for anyone who cares. We invite Mr. McGowan to add other links he thinks is relevant to understanding what happened out there.

Author

DonnaLadd

Date

2009-09-24T15:55:54-06:00

ID

152308

Comment

I find it hard to believe that the Sierra Club hires it's own judge and jury from the same agency personnel as Mr. McGowan infers. It is hard for me to believe that the Sierra Club has the lobbying power that these Oil Companies have, or any type of environmental agency for that matter. If it is true what Mr. McGowan states in his post then the judge and the jury are being bribed, although this could happen in Mississippi but i think the article was talking about Houston Texas.I wouldn't think you would find many Enviromental friendly judges in Houston. Again, lobbying power!

Author

August West

Date

2009-09-25T12:16:27-06:00

ID

152321

Comment

August, There's no mention of judge or jury bribery that I'm aware of, nor does the Sierra Club hire its own judge or jury. What McGowan is saying is that the EPA acts as an environmental regulating and enforcement agency. It makes the regulations, then sues and fines violators to get them to comply. The only path to challenging and changing a regulation, he argues, is through a hearing with the agency, first. That process can't possibly be fair, Mr. McGowan believes, because "hearing officers then find in their own favor on the scientific facts; the same scientific facts (the) agency based their regulations upon." He goes on to say that when a violator is sued by the EPA, courts do not generally allow arguments on the merits of the regulations, which courts assume are correct; they only allow arguments as to whether or not the violator is guilty of violating the regulation. (Please correct me if I haven't framed your argument correctly, Mr. McGowan.) But the EPAs role does not seem to be unusual for independent federal agencies. The Federal Aviation Agency, the Drug Enforcement Agency, the Food and Drug Administration, et al—all of these agencies write and enforce regulations based on their area of expertise. The EPA, specifically, was created by Congress to create and enforce regulations to clean up and protect the natural environment, and to regulate the use and disposal of hazardous materials. Lower courts—and many appeal courts—rarely allow testimony over the merits of a law; to do so would put courts in the position of "legislating from the bench." It is the court's job to judge whether a law was broken, not to entertain arguments over the validity of a law. Appeals courts, including supreme courts have been known to entertain those arguments; however changing laws is generally the job of the legislature. Citizens are free to sue the EPA over specific regulations and rulings, which can force the EPA to defend its science and change its regulations. Such cases have been known to go to the U.S. Supreme Court, and the EPA doesn't always win. It's clear Mr. McGowan doesn't like the process and doesn't believe it's been fair. He is certainly entitled to his opinion.

Author

Ronni_Mott

Date

2009-09-25T18:02:54-06:00

ID

152349

Comment

Ronni: Many years ago I tried what you are suggesting, I filed suit against an agency on the legitimacy of the science of a particular regulation. In those cases, the judges found against me on summary judgment, ruling that I had to exhaust my efforts through the regulatory process before I could be heard in court. When I did that, the scenario I explained earlier played out and then the judge would still not rule on the validity of the science. That is not to say that some science was not debated during my cases, it was. I won these cases because I believe the Judge found my science persuasive and perceived that the agency hearing process was unfair. But at the end of the day the judge would not go so far as to overrule the agency or regulation on the illegitimacy of the science. The judge reversed the agencies rulings and admonished that the agency must do a better job of following its procedures in applying the regulation. The regulations were never changed so the agencies still attempt to deny me permits based on their original science.

Author

John McGowan & Robert Muller

Date

2009-09-29T15:48:57-06:00

ID

152353

Comment

I am not an environmental scientist, Mr. McGowan, and I'm assuming the judge in your case was not, either, which is why he refused to rule on whose science is more legitimate. As I said in my post, it's not a judge's job to decide the merits of a particular regulation or law. Within the scope of my understanding, I believe the judge was correct. I'm probably not telling you anything you don't know already, but you can appeal your case to a higher court if it's in your interest to change the regulation. I also think that your own industry would back you if have a legitimate test case. Surely, if there's a reason to do it, some of the billions in oil profits now spent in lobbying could be redirected to change a regulation damaging to the industry. But that's just my opinion; I could be wrong.

Author

Ronni_Mott

Date

2009-09-29T19:19:46-06:00

ID

152354

Comment

I'm confused about your Texas case, Mr. McGowan. Did you violate environmental regulations in order to try to challenge the science behind the law? Put another way, did you dump into Galveston Bay on principle? And that is a serious question. I'm not being snarky. I will add that it is clear that you're not a big fan of environmental regulations. But I would argue that there really is too much at stake with the Pearl here for us to get caught up in a battle between you and the environmental agencies you seem to dislike so much. Put another way, I don't think that's the public's fight. Perhaps there is a smaller project, that doesn't involve eminent domain or the risk of another devastating flood happening while you are trying to outsmart the greens, that you could take your stand on? With due respect.

Author

DonnaLadd

Date

2009-09-29T20:40:05-06:00