Environmental Litigation and Regulation

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Senate Bill 655 has now cleared the House Natural Resources Committee and goes to the full House. It has already passed the Senate. Here is the current text of the act.

Under the current law, La. R.S. 30:2015.1, anyone suing for damages for the “evaluation and remediation of any contamination or pollution that is alleged to impact or threaten usable ground water” has to provide written notice to the Department of Natural Resources (DNR) and the Department of Environmental Quality (DEQ), who then have the right to intervene in the lawsuit. “Usable ground water” is statutorily defined as Groundwater Classification I or II under DEQ’s RECAP regulations.
Continue Reading SB655 – Remediation of Oil and Gas Sites

On March 17, 2006, the Court of Appeals for the D.C. Circuit vacated EPA’s final Equipment Replacement Provision rulemaking which attempted to establish a bright-line test for routine maintenance, repair and replacement (RMRR) in New York v. EPA, No. 03-1380 (D.C. Cir. 2006). To vacate a rule is to rescind and set it aside entirely (as opposed to a remand which would have sent it back to the agency for further justification.)
Continue Reading D.C. Circuit Vacates Equipment Replacement Provision (ERP) Rulemaking

Kean Miller is pleased to announce that 12 lawyers, formerly in the Admiralty & Maritime, Construction, and Energy practice areas with Lemle & Kelleher, have joined the firm in the New Orleans office.

“We are very excited to welcome these distinguished attorneys to our law firm. They are an outstanding resource for our clients. Our offices are located in Louisiana’s major port cities — New Orleans, Baton Rouge and Lake Charles — and this esteemed group brings over 150 years of combined experience in maritime issues, admiralty law, marine insurance, oil & gas, drilling and exploration, pipelines, construction, and energy law to our clients.” said Gary A. Bezet, managing partner of the 121-lawyer firm.
Continue Reading Kean Miller Adds 12 Attorneys in Admiralty & Maritime, Construction, and Energy Practice Groups – New Orleans Office Triples in Size

As cleanup from Hurricane Katrina and its aftermath progresses, the Air & Waste Management Association is proud to announce that its 99th Annual Conference & Exhibition will take place in New Orleans as originally scheduled, June 20-23, 2006. With the theme, “Healthy Environments: Rebirth & Renewal,” the conference is expected to bring nearly 3000 of the world’s leading environmental professionals to New Orleans.

In addition to the program tracks that attendees are accustomed to, the conference will feature a special session devoted to waste management responses to Hurricane Katrina, focusing on the analysis, transportation, disposal, and cleanup of debris and potentially contaminated soil and sediment. Papers also will address environmental readiness to aid in responses to future natural disasters. Also featured at the conference:

*The Keynote Program, with a presentation by Shell Oil Company President John Hofmeister on the company’s plans for energy diversification;
*A symposium dedicated to Particulate Matter and Health;
*An Exhibition on the latest technologies used in the Katrina cleanup, as well as other environmental products and services; and
*More than 160 sessions covering a range of air, environmental, and waste issues.
Continue Reading New Orleans to Host Air & Waste Management Association’s 99th Annual Conference & Exhibition in June 2006

Several recent developments concerning the Spill Prevention, Control, and Countermeasure (SPCC) regulations occurred in December 2005 that may have a major impact on Louisiana facilities. First, the EPA released the long awaited SPCC “Guidance for Regional Inspectors.” The Guidance is intended to assist regional inspectors in reviewing a facility’s implementation of the rule, but will also be beneficial for regulated facilities in determining how particular provisions of the rule may be applied.
Continue Reading EPA Releases Guidance Document and Proposed Amendments to Spill Prevention, Control, and Countermeasure Rules

Reproduced with permission from Toxics Law Reporter, Vol. 20, No. 47, pp. 1067-1069 (Dec 8, 2005). Copyright 2005 by The Bureau of National Affairs, Inc. (800-372-1033). http://www.bna.com In the wake of two hurricanes, many Louisiana industries, businesses, and citizens are left with a monumental task of cleaning up the damages caused by the storms. Many Louisianians also face the somewhat unknown future of what potential liability lies ahead under various environmental statutes and programs. After the storms, the State of Louisiana and the federal government temporarily eased many requirements under various environmental regulatory programs so that immediate actions could be taken to preserve property and protect lives. Significant questions remain, however, as to how these agencies are going to use their enforcement discretion in the future with respect to events that occurred during and after the storms.
Continue Reading The “Act of God” Defense Under Select Environmental Programs Applicable in Louisiana

Reproduced with permission from Class Action Action Litigation Report, Vol. 6, No. 21, pp. 795-797 (Nov 11, 2005). Copyright 2005 by The Bureau of National Affairs, Inc. (800-372-1033). http://www.bna.com The damages caused by Hurricane Katrina in Louisiana, Mississippi, and Alabama constitute the largest natural disaster in U.S. history. Hurricane Katrina’s impact on insurers and their policyholders have already set in motion what will probably be one of the largest legal and public policy storms to hit the United States in modern times. Nowhere will the storm be more evident than in disputes involving wind and water damage coverage. The eye of the coverage storm is already manifesting itself in coastal areas of Louisiana, Mississippi, and Alabama.
Continue Reading Wind Versus Flood Coverage and Hurricane Katrina

Reproduced with permission from Class Action Action Litigation Report, Vol. 6, No. 21, pp. 793-795 (Nov 11, 2005). Copyright 2005 by The Bureau of National Affairs, Inc. (800-372-1033). http://www.bna.com Katrina has already spawned a hurricane of lawsuits. These suits include: suits by individuals who claim they were injured by hazardous substances that leaked from storage facilities, refineries, or pipeline facilities; suits by individuals who claim that oilfield production and pipeline activities caused wetland damage that exacerbated the effects of hurricane Katrina; and suits by individuals who claim faulty levees caused the widespread flooding that followed in the days after Katrina made landfall. All of these suits have a common thread: each will require the courts to determine whether the damages sued upon resulted from nature’s fury or human blunder. Louisiana, like many other states, recognizes the general principle that an “act of God” can be a complete defense to liability for negligence and strict liability claims. Louisiana courts have generally used a consistent definition of the term “act of God,” but the application of that definition in the context of a specific event has not always been consistent or clear, particularly when the issue of contributing human fault is at play.
Continue Reading Nature’s Fury or Human Blunder? The ‘Act of God Defense’ in Louisiana

The past twenty years has seen a dramatic increase in the volume of mass tort and other forms of complex litigation. As the volume of litigation has grown, so too have the burdens on the judiciary and the litigants. To address this growing problem, it is imperative that modern adjudicatory tools be adopted to achieve the goal of securing the just, speedy, and inexpensive determination of every action. One such case management tool that has developed in the context of mass tort litigation – but that can be equally effective in other types of litigation – is the Lone Pine Order.
Continue Reading The Lone Pine Order As a Case Management Tool for Complex Litigation