Defending Legacy Environmental Litigation
Written by Kristin Lausten
The Louisiana courts continue to explain the procedures for lawsuits filed under Louisiana Revised Statute § 30:29 (hereinafter “Act 312”). Under Act 312, if a New Orleans or Louisiana landowner discovers environmental contamination, the landowner can sue for remediation. Act 312 replaced the older statutory and common law right of landowners to collect money damages for environmental contamination; now landowners can obtain remediation. The procedures under Act 312 are somewhat complicated and, fortunately, the courts continue to provide guidance. In a recent case, the Court of Appeals reaffirmed that:
- The standard of review for the Court of Appeals is de novo — specifically the appellate court must review the record in its entirety, giving no special weight to the trial court’s determinations
- The Court of Appeals may either affirm the trial court’s adoption of a plan or may adopt a feasible plan in conformity with Act 312
- Section 30:29(C)(5) of the Act is clear and unambiguous
- Under Section 30:29(C)(5), the party challenging a feasible plan has the burden of proof with respect to demonstrating an alternative plan is more feasible
- The form of judgment in the case under discussion was proper
See State v. The Louisiana Land and Exploration Co., Case No. CA 17-830 (La. App. 3rd Cir. March 14, 2018).
Defending Legacy Environmental Litigation: Holding of Louisiana Land and Exploration
Louisiana Land and Exploration Co. involved about 1200 acres of mostly submerged marshland in Vermilion Parish owned by the State and managed by the Vermilion Parish School Board (the “School Board”). For about 50 years, oil and gas exploration and production occurred on the lands. In 2004, the State and the School Board sued Union Oil Company of California and Union Exploration Partners (collectively “UNOCAL”) and others for environmental damage to the property. During the litigation, UNOCAL and others agreed that damage to the property had occurred and various remediation plans were offered and, eventually, a final plan was submitted and approved by the Louisiana Department of Natural Resources. The case has been heavily litigated. Appeals were taken at various points. See State v. The Louisiana Land and Exploration Co., 110 So. 3d 1038 (La. Supreme Court 2013).
In the 2018 Court of Appeals decision, the specific question concerned the form of the judgment entered by the trial court after remand. Specifically, the State and the School Board demanded that the Judgment Order contain and incorporate 27 questions and written answers provided by the Department of Natural Resources about the remediation plan. The Department provided the answers to clarify the plan, but the Department also made it clear that the answers did not alter the remediation plan in any way. The School Board insisted that the answers be made part of the Court’s judgment order. The trial court declined. On Appeal, the Court of Appeals held there to be no error on the part of the trial court in this respect. The questions and answers were in the court record; they were meant as clarifications; there was no need for them to be made part of the court’s order.
The School Board also vigorously asserted that it had the right to perform the remediation. However, the School Board did not provide any evidence or anything other than argument to show that it performing the remediation was a better remediation plan than the plan that was adopted (which had UNOCAL performing the remediation). The trial court rejected the Board’s claim and the Court of Appeals affirmed. The Court of Appeals noted that alternative remediation plans are governed by § 30:29(C)(5) of Act 312. That section was held by the court to be “clear and unambiguous.” Under § 30:29(C)(5), the party challenging a feasible plan — in this case, the School Board — has the burden of proof with respect to demonstrating an alternative plan is more feasible. Here, the alternative plan — having the Board conduct the remediation — was not proven to be a “more feasible” plan by a preponderance of the evidence. Indeed, the Board presented no evidence at all and ultimately, the trial court’s decision was affirmed.
Defending Legacy Environmental Litigation: Contact New Orleans Attorney Kristin M. Lausten
Need assistance? Have questions? Contact Kristin M. Lausten. Our legal team defends toxic tort cases in both state and federal courts throughout Louisiana. We use state-of-the art technology and maintain relationships with a broad range of scientific and legal experts who are needed for defending toxic tort cases.
In addition, we provide legal consultation and planning so that you can decrease your risks of being sued for torts related to toxic substances.
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Kristin M. Lausten
This article is provided as an educational service for general informational purposes only. The material does not constitute legal advice or rendering of professional services.