Litigating Louisiana Oilfield Contamination Under La. Rev. Stat.§ 30:29
Written by Kristin Lausten
Oil and natural gas exploration and production has a long and storied history in Louisiana both good and bad. Among the negatives of oil and natural gas extraction and production is environmental contamination from spills, accidents, and less benign causes. Contamination lawsuits are constant here in the state; so much so that in 2006, the Louisiana Legislature passed — and then amended in 2014 — a statute to govern how contamination and remediation cases should be conducted. Essentially, the Legislature mandated the involvement of the Louisiana Department of Natural Resources (“LNDR”) in the evaluation and remediation of environmental contamination from oilfield exploration and production.
Louisiana Oilfield Contamination Remediation: Background
Prior to passage of La. Rev. Stat.§ 30:29 (hereinafter the “Act”), New Orleans and Louisiana property owners could sue for damages related to environmental contamination. Plaintiffs often requested millions of dollars in damages based on theories of how much remediation would be required to return the land to its “natural state.” But critics of such cases — and the oil and gas industry — pointed out that such damages had no relationship to the value of the land and, very importantly, there was no indication that victorious plaintiffs actually used the money to clean up the environmental contamination.
To remedy the situation, the Legislature passed the Act. Among the key provisions were requiring the involvement by the LNDR at the remediation and implementation stages, requiring the remediation money to be deposited with the court, and disallowing remediation costs as an allowable category of damages for property owners.
Louisiana Oilfield Contamination Remediation: The Process Under La. Rev. Stat.§ 30:29
The Act created a sequenced protocol for these types of cases. As can be seen below, the sequence is a marriage of civil litigation and administrative proceeding. As one recent case has shown, however, the marriage might be problematic. The sequence is as follows:
- Complaint is filed — or amended — alleging environmental contamination
- Notice must then be given to the State (via the LDNR and the Louisiana attorney general)
- Upon a party admission or upon a finding that environmental contamination has occurred and that a given defendant caused or is legally responsible for such damage (“responsible defendant”), the court shall stay the proceedings and refer the matter to the LDNR
- Responsible defendant shall develop remediation plan to be sent to all parties, the court and the LDNR
- Plaintiff and other parties comment and provide input on the remediation plan
- LDNR then conducts public hearing/s on the submitted plan or plans
- If the standards and/or powers of other regulatory agencies are implicated, consultation shall be had with said agencies
- LDNR adopts and submits final plan to court with written reasons in the trial court record
- Absent objections, Court issues Order adopting the plan and ordering funding of the plan — this order is subject to appeal
- Remediation costs deposited with the Court
- Responsible defendant begins remediation with periodic reports and disbursements from funds deposited
- Final report and refund of any excess funds deposited
Note that, prior to entering the Order adopting the plan, a property owner may object to the final plan approved by the LDNR. If the property owner proves, by a preponderance of the evidence, that another plan is more feasible to adequately protect the environment and the public health, safety, and welfare, then the alternative plan shall be adopted by the court. As with the LDNR’s plan, the court shall order that the plan be funded by the responsible defendant.
As noted above, the property owner is not awarded any damages as part of this protocol. Costs and expenses can be awarded covering reports, experts, attorney’s fees, etc.; but no award of damages. The Act, however, does not prevent property owners from seeking recovery of damages under other causes of action.
Louisiana Oilfield Contamination Remediation: Is an Evaluation-Only Plan Acceptable?
An interesting question arose in a recent Court of Appeals case about whether a trial court must accept an LDNR “final plan” even in the absence of a property owner’s alternative plan, if the proposed LDNR “final plan” is evaluation-only and contains no plans for remediation. See Sweet Lake Land & Oil Co., v. Oleum Operating Co, L.C., No. 17-464 (La. App. 3rd Cir. October 18, 2017). In that case, the trial court refused to enter an Order adopting the LDNR’s purported “final plan” because the plan did not provide a remediation plan for groundwater contamination and water flowlines. The various parties in favor of the plan appealed asserting that the trial court erred in refusing to adopt the final plan. On appeal, they argued that the LNDR’s final plan does not need to have a remediation aspect since the statute says “evaluation OR remediation…” They also argued that the trial court had no discretion to reject an LDNR plan particularly where the property owner filed no alternative plan.
On the facts specific to the case, the Court of Appeals found there to be significant doubt as to whether the final plan was, in fact, final. As such, it was well within the trial court’s discretion to determine whether any given submission by the LDNR is incomplete and, if so, to order a revised and complete submission. The Court of Appeals clarified that the trial court has full authority “as gatekeeper in this statutory scheme” and has the option of rejecting an LDNR plan it determines to be incomplete. The court left open for another case the issue of whether an evaluation-only plan would be acceptable under the Act.
Contact an Experienced Louisiana Toxic Tort and Environmental Defense Lawyer
Need assistance? Have questions? Contact Kristin M. Lausten. Our legal team defends toxic tort and environmental 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 environmental contamination 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.
The author may be contacted at:
Kristin M. Lausten
New Orleans, Louisiana
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.