In Chevron USA, Inc. v Department of Revenue, No. 13111D, (La. Bd. Tax App. July 29, 2025), the Louisiana Board of Tax Appeals (the “Board”) held that the participation of Chevron USA, Inc. (the “Taxpayer”) in multiple status conferences was sufficient to avoid abandonment under La. C.C.P. art. 561 (“Art. 561”). The Board adopted an equitable stance in interpreting Art. 561 and rejected the Louisiana Department of Revenue’s (the “Department”) argument that participation in status conferences does not qualify as a “sufficient step” under Art. 561 to preclude abandonment. While the Board’s ruling is favorable to taxpayers, it underscores the importance of tracking abandonment dates and considering appropriate action to avoid having to contest a dismissal before the Board.

The matter originated from a petition for redetermination of a corporate income and franchise tax assessment that the Taxpayer filed on January 28, 2022. The Department filed an answer on March 15, 2022. During the course of the litigation, the Board held a total of nine status conferences from April 20, 2022 through April 24, 2025 at which Taxpayer and the Department regularly appeared and during which the Board’s administrator concluded that the matter was progressing towards final resolution. The tenth status conference was scheduled for October 22, 2025. However, less than a week after the ninth status conference, the Department filed an ex parte Motion for an Order of Dismissal Without Prejudice For Abandonment. The Order of Dismissal was signed by the Board. The Taxpayer timely challenged the Order of Dismissal.

Louisiana Code of Civil Procedure Art. 561 provides that an action is abandoned when the parties fail to take any step in prosecuting or defending a case in a trial court for a period of three years. Abandonment arises as a matter of law, without the need for a formal order. However, any party may file an ex parte motion for the trial court to enter a formal order of dismissal due to abandonment. Art. 561 also provides that any formal discovery shall be deemed to be a step in the prosecution or defense of an action.

In this case, the Department argued that neither party took any steps in prosecuting the case since the Department filed its answer to the Taxpayer’s petition in March 2022, and that pursuant to Art. 561, the case had abandoned by operation of law. The Department contended that the Board on its own initiative requested the status conferences and that actions by the Board are not considered “steps” in the prosecution or defense of an action for purposes of abandonment under La. C.C.P. art. 561 because such actions by the Board are not “actions by a party.” Thus, according to the Department, the parties themselves had taken no further steps in the case to avoid abandonment.

In response, the Taxpayer filed an Opposing Motion to Set Aside Dismissal and For Attorney’s Fees, arguing that it had participated in each of the status conferences, evidencing that it was actively prosecuting the case. The Taxpayer also argued that the Department was wrong in applying Art. 561 because the Board had not formally adopted the rule in its administrative proceedings and there appeared to be no reported administrative decisions indicating the Board had ever applied Art. 561.

The Board agreed with the Taxpayer and granted its Motion to Set Aside Dismissal. According to the Board, the Taxpayer had evidenced an intent to prosecute the case by continuously appearing for status conferences, including the one held six days before the Department filed its ex parte Motion to Dismiss. In so holding, the Board explained that Art. 561 should be liberally construed in favor of maintaining the petition and any “reasonable doubt” should be resolved in favor of allowing prosecution of the claim. In its written reasons, the Board cited several cases where a requirement of strict technical compliance was rejected because the parties clearly demonstrated an intent to prosecute the case by, for instance, filing written requests for a status conference, or filing motions with the “the ultimate purpose of the conference was to hasten the matter to judgment.” See Cummings v. W. Feliciana Par. Sch. Ed., 2016-0734, p. 6 (La. App. 1 Cir. 2/17/17); and Thibaut Oil Co., Inc. v. Holly, 06-0313, p. 5 (La. App. 1 Cir. 2/14/07) (quoted by the Board in discussing the intent and substance of a party’s actions). The Board also raised policy considerations in exercising its discretion in this matter, namely expressing concern towards pro se litigants that have relied on the Board’s stance on Art. 561 and who would suffer if the Board took a different approach. The Board also distinguished the only two cases where an ex parte Motion to Dismiss had been granted, specifically noting a case where a taxpayer “virtually disappeared” for eight years after filing their petition. See Howard Bros. Disc. Stores v. Secretary, B.T.A. Docket No. 2464 (La. Bd. Tax App. 4/24/92). Interestingly, the Board addressed its adoption of Art. 561 in a footnote by stating that the Department’s counsel did not dispute that the Board routinely adheres to the Louisiana Code of Civil Procedure and has discretion to dismiss a matter by applying Art. 561.

The Board also cited the Constitutional obligation of the legislature to provide a complete and adequate remedy and recovery of illegal taxes paid by taxpayers and in doing so has provided that the Board shall hear and decide at a minimum expense to taxpayers, questions of law and fact arising from tax disputes and controversies. Hence, the Board is to preside over case reviews, status conferences, scheduling orders, and other matters. In overseeing status conferences, the Board determines whether a matter is progressing towards resolution and will set the matter for hearing if it determines that progress is not being made. The Board also explained that most status conferences are scheduled to allow parties sufficient time to perfect settlements.

Implications

The Department’s attempt to dismiss the Chevron matter for abandonment is unusual. And the Board’s ruling provides helpful guidance on the longstanding question of whether a taxpayer’s continuous participation in status conferences evidences a clear intent in prosecuting and advancing its case, sufficient to avoid a finding of abandonment under Art. 561. However, it remains to be seen whether the Department will appeal the Board’s decision.

This is an important ruling because the Board’s position on abandonment and its interpretation of Art. 561 protects taxpayer’s rights and avoids unnecessary dismissal of cases due to procedural technicalities. If the Board had adopted the Department’s interpretation of Art. 561, the rule could become a pitfall for taxpayers, leading to frequent and unexpected abandonment of cases. As noted by the Board, ruling otherwise would have significant adverse results on pro se litigants and other litigants who have relied on the Board’s actions in setting status conferences that effectively continue the progression of their cases.

Although the Board’s ruling treats participation in a status conference as a sufficient step towards prosecuting a case for purposes of Art. 561, a taxpayer with pending litigation before the Board should consider adopting practices and procedures for calendaring and tracking potential abandonment deadlines. In addition, rather than relying on the Board’s decision in Chevron, a taxpayer with pending litigation before the Board should consider taking more formal steps to reset the abandonment clock, such as issuing discovery and filing it in the docket, to avoid any potential for abandonment under Art. 561.

For additional information, please contact: Jaye Calhoun at (504) 293-5936, Willie Kolarik at (225) 382-3441, Divya Jeswant at (504) 293-5766, or Melania Smith at (713) 844-3068.

It’s that time to act quickly or lose your rights to contest property tax valuations for real property and business personal property. The “open rolls” period in any Louisiana parish is the annual opportunity for taxpayers to check property tax assessments and determine whether they are correct. More importantly, it is a time to act quickly or lose your rights to contest property tax valuations. The property tax rolls are scheduled to be “open” for public inspection in selected Louisiana parishes as follows:

PARISHOpen Book/Roll DatesAppeal Deadline
Caddo08/15-08/29/20259/5/2025
Calcasieu08/15-08/29/20259/11/2025
East Baton Rouge08/21-09/05/20259/17/2025
Jefferson08/18-09/02/20259/10/2025
Lafayette08/18-09/02/20259/9/2025
Lafourche08/15-08/29/20259/2/2025
Livingston08/18-09/02/20259/4/2025
Orleans07/15-08/18/20258/21/2025
Plaquemines08/15-08/30/20259/18/2025
St Bernard08/15-09/05/20259/8/2025
St Charles08/22-09/12/20259/29/2025
St Helena08/15-09/05/20259/12/2025
St Mary08/15-08/29/20259/3/2025
St Tammany08/15-08/29/20259/15/2025
Terrebonne08/18-09/02/20259/17/2025
Washington08/15-09/04/20259/15/2025

The current property tax year for Orleans Parish is 2026. The current property tax year for all other parishes is 2025.

The important thing to know is that if you or your client wants to challenge the correctness (or the value) of a property tax assessment and preserve any right to challenge the valuation of that property, you can only do so during the “open rolls/books” period for your parish and within the deadline for filing a complaint with the local parish Board of Review (i.e. parish council or police jury). Select anticipated appeal deadlines are shown above. The complaint must be filed with the Parish Board of Review by the appeal deadline, and importantly, must be filed either in person, by facsimile, or by certified mail, which must be received at the Board of Review office by the deadline.[1] PLEASE NOTE: The rules for what supporting information must be provided and the timeline for providing such information  in order to preserve the property owner’s rights in a contested property tax matter have changed! If you or your client makes an untimely attempt to challenge an assessment after the deadline for filing an appeal with the Board of Review, changes to property valuation and assessment will be at the assessor’s discretion, and the assessor’s office may be less motivated to work with you at that point. If your client is a nonprofit, or the property is otherwise subject to an exemption which is not being recognized, or otherwise wishes to challenge the legality of an assessment (for example, the property shouldn’t be on rolls at all regardless of the value), any such challenge may be subject to different procedures and deadlines.

Property tax assessment information for prior tax years may be included on a parish’s website and can be useful in determining whether there has been a change. However, some parishes simply do not have up to date or accurate information online. For example, in prior years, Jefferson Parish has not published current information until after the rolls are closed. Nevertheless, with respect to those parishes where this information is not accurately shown online or is simply not available online, you can usually call the assessor’s office and ask for information (or pay them a visit). In addition, you can view property tax assessments in some parishes through the Louisiana Tax Commission website. The website for Orleans Parish is: www.nolaassessor.com.

In short, August turns up the heat in more ways than one for Louisiana property taxpayers. If you or your clients have questions or need assistance with any property tax matters, Kean Miller’s State & Local Tax team is here to assist.

[1] For Calcasieu Parish, the appeal must be filed by the deadline either in person or by certified mail – facsimile filing is no longer accepted.

The 2025 Regular Session of the Louisiana Legislature convened April 14, 2025, and adjourned June 12, 2025. The first regular session of the new term saw legislation on several hot-button issues, including 944 bills (696 in the House/248 in the Senate), 24 constitutional amendments, and 751 resolutions and study requests. For fiscal year 2025-2026, the Legislature approved a $53.5 billion state operating budget to fund executive department operations.[1]

The Legislature enacted new laws affecting energy production and environmental regulation. Legislation was passed on several topics including carbon capture and sequestration, oil and gas, renewable energy, water and other natural resources and modifications to certain departments, among others. Many of these laws go into effect on August 1, 2025, while others became effective upon signature of the Governor, or another date prescribed by legislation. This article offers a synopsis of relevant changes that were made to energy and environmental laws, as well as the regulatory agencies that enforce them.

Energy and the Department of Conservation and Energy

SB 244 (Act No. 458) significantly changes Louisiana’s oilfield remediation statute, Act 312 (Louisiana Revised Statutes § 30:29), starting September 1, 2027. Act 312 applies to “legacy” cases and governs the procedure for the State to maintain oversight over oilfield evaluation and remediation.[2] Starting October 1, 2025, SB 244 also changes the official name of the Department of Energy and Natural Resources to the Department of Conservation and Energy (“DCE”). It eliminates the office of conservation and transfers those functions to the department. It organizes DCE into the executive office of the secretary that includes the offices of state resources, legal services, administration, permitting and compliance, mineral resources, enforcement, and energy.

It also creates the Natural Resources Commission as a coordinating body for management of the state’s natural resources. DCE is given the exclusive authority to regulate water-dependent activities and to manage and protect the water resources in Louisiana.[3]

The new law establishes an expedited permitting program. It requires advance notice to surface and mineral owners prior to permitting or performing carbon dioxide sequestration related activities. The new law requires the department to publish Class VI or Class V applications related to CCS on its website, and expropriation of carbon dioxide sequestration (CCS) pipelines is only permitted for absentee landowners and for pipelines that are common carriers.

HB 459 (Act No. 279) requires certain permits for renewable energy batteries, wind energy, and solar power generation facilities. The new permitting law applies to all uses other than residential property uses. It provides that no battery used for renewable storage facilities shall be installed without the operator first obtaining a permit for installation from DCE. To receive a permit, the applicant must show proof of financial security and a decommissioning plan.

It also introduces new permitting requirements for wind energy. It states that no onshore wind project shall be done without a permit from DCE and requires proof of financial security and a decommissioning plan in order to receive this permit. It defines the term “onshore” to mean “land-based wind turbines and those that are located on inland water bodies.”

As for solar power generation facilities, the secretary of DCE has jurisdiction over all persons and property and has the authority to perform all acts necessary for enforcement. The law prohibits someone from constructing, installing, or operating a solar power generation facility with a footprint of seventy-five or more acres without holding a permit issued by the department. Once the submission of the resolution to opt out is passed, the siting standards shall not apply to that parish. The Department of Agriculture and Forestry and the Department of Wildlife and Fisheries may submit comments in response to the construction, installation, and operation of any power generation facility to the department. The location of the facility determines which standards apply. There must be a buffer around the perimeter of each solar power generation facility that includes setbacks and a vegetative barrier to screen the facility from view. For residential property, unless otherwise agreed to by written instrument between the property owner and the facility operator, there shall be a three-hundred-foot setback from the residential property line to the nearest solar device with one of the following: (1) a thirty-five foot deep vegetative barrier composed of new plant material or (2) a fifty foot deep vegetative barrier composed of natural plant material. For natural and navigable water bodies, a one-hundred-foot setback from the ordinary low water mark to the nearest solar device is required. For public roads, a fifty-foot setback from the edge of the paved road surface to the nearest solar device, with a thirty-five-foot vegetative barrier is required. A parish that adopts solar ordinances may opt out of the siting requirements. This is effective on August 1, 2025.

SB 127 (Act No. 179) provides for development of a permitting program for nuclear generation and for expedited processing of environmental permits, and compliance for nuclear generation. DCE Secretary is authorized to establish a parity program for nuclear power generation and to expedite the permitting process for electric public utilities. The law also establishes the application requirements related to same. This law is effective August 1, 2025.

HR 212 contains a request for DCE and the Public Service Commission to study the legality and feasibility of the use of nuclear energy in Louisiana. It urges the agencies to consider the advantages and disadvantages of nuclear energy generation including economic and environmental impacts, workforce impacts for constructing and staffing facilities, evaluations and recommendations on site characteristics and industrial use, environmental and ecological impacts, safety criteria, tax implications at the local and state level, and job creation.

HB 692 (Act No. 462) provides definitions and a policy framework for clean and renewable energy that is affordable and reliable and promotes grid resilience. It requires that energy sources be affordable, reliable, clean, and dispatchable, that they deliver cost savings for commercial and residential customers, and that they include hydrocarbon-generated energy. It seeks to promote energy reliability and grid resilience. This law is effective August 1, 2025.

HR 265 directs the Louisiana Public Service Commission to explore technology, policy, and cost recovery mechanisms to strengthen the Louisiana electrical grid against electromagnetic threats. It acknowledges that the electric grid of Louisiana is integral to national security and that the high voltage transformers sustaining the Louisiana grid are extremely hard to replace. Due to the devastating potential of a major solar storm, preemptive action to harden Louisiana’s grid against such risks is necessary. It specifically considers the possibility for the Gulf of America to be a strategic launch point for an electromagnetic pulse (EMP) attack by hostile nations and terrorist organizations.

SR 195 creates a task force to study and make recommendations relative to policies that promote energy self-regulation, industrial microgrids, and expedited permitting in Louisiana. The task force must develop a written plan, including proposals for legislation, and submit the plan to the Louisiana Senate by March 1, 2026.  

HB 600 (Act No. 295),in part, reduces the severance tax rate from 12.5% to 6.5% for oil produced from wells completed on or after July 1, 2025. The Act also makes related reductions to the severance tax rate for incapable, stripper, inactive, and orphan oil wells. The 12.5% severance tax rate is retained for oil produced from a well completed before July 1, 2025. The bill’s provisions will apply to taxable periods beginning on or after July 1, 2025.

HB 495 (Act. No. 284) limits the horizontal well exemption period to 18 months or until payout of the well, whichever comes first, for gas produced from a well completed on or after July 1, 2025.  The 24-month exemption period (or until payout of the well) is retained for gas produced from a well completed before July 1, 2025. The exemption period for oil was not changed. The Act applies to taxable periods beginning on or after July 1, 2025.

Carbon Capture Sequestration (CCS)

HB 691 (Act No. 397) increases regulatory oversight of carbon sequestration activities. The legislation increases the maximum civil penalty for violations under La. R.S. 30:1106 (for underground injection control) from $5,000 to $200,000 per day and per violation. In addition, Act No. 397 imposes more detailed reporting requirements for certain incidents related to carbon injection. At a minimum, reports must now include:

  1. A description and the location of the incident;
  2. Potential risks to public health, water sources, and land stability;
  3. Immediate mitigation steps taken; and
  4. A timeline for corrective action.

These reports must be disclosed not only to emergency response teams, but also to local law enforcement, local governing officials, and the public via an official press release. The new law took effect on June 20, 2025.

HB 548 (Act No. 508) establishes a new framework for allocating revenue generated from carbon dioxide storage beneath State property. Prior law made no distinction between sovereign State lands and State agency-owned property, allocating revenue from storage beneath “state-owned land or water bottoms” as follows: 30% to the State’s Mineral and Energy Operation Fund, 30% to the parish where the storage facility is located, and the remainder to the State’s general fund. The new law replaces “state-owned land or water bottoms” with “public lands as defined in R.S. 41:1701 [i.e., bottoms of navigable waters, banks of shores and bays, arms of the sea, the Gulf of America, and navigable lakes] and dried lake beds that were formerly navigable and remain owned by the state.” The legislation then introduces a separate allocation scheme for “injected-based revenue” from carbon dioxide storage beneath property owned by State agencies. This revenue category includes, but is not limited to, injection fees, contractual minimum guaranteed annual payments, and any other revenue derived from injection operations. It excludes revenue collected from bonuses, rentals, pipeline rights-of-way, or other payments for surface use or surface facilities. For injected-based revenue collected on behalf of the Department of Wildlife and Fisheries or the Wildlife and Fisheries Commission, 30% is remitted to the governing authority of the parish where the storage facility is located, and the remainder is deposited into the Louisiana Wildlife and Fisheries Conservation Fund. For all other State agencies, 30% is similarly allocated to the parish, while the remainder goes to the State’s general fund.

HB 304 (Act No. 179) provides that expropriation hearings related to carbon capture sequestration activities must be heard in the parish where the subject property is located.

SB 36 (Act No. 407) primarily provides that if any transporter of carbon dioxide has been previously issued a certificate of public convenience and necessity prior to the law’s effective date (June 20, 2025), then that certificate shall remain valid.[4]

SB 73 (Act No. 414) modifies several procedures governing carbon sequestration projects. Most notably, it raises the unitization threshold for carbon dioxide storage projects, requiring written consent from at least 85% of the owners in interest within a proposed storage unit—up from the previous 75%. The law also establishes stricter requirements for initiating eminent domain proceedings related to carbon storage, some of which are:

  • Providing written notice of intent to acquire property rights;
  • Giving landowners a reasonable opportunity to be present during inspections conducted for appraisal purposes; and
  • Engaging in good faith negotiations, including at least five in-person meetings or documented attempts.

Act No. 414 also imposes notice requirements for Class VI and Class V well permit applications.

Water

SB 97 (Act No. 418) creates “CURRENT” (the Coordinated Use of Resources for Recreation, Economy, Navigation, and Transportation Authority), establishing it as the lead entity for integrated flood control, risk reduction, navigation, water resource management, and infrastructure projects – mainly within inland floodplains and watersheds.

HB 687 (Act No. 217) authorizes the port of New Orleans to utilize public-private partnerships for the development of the St. Bernard Transportation Corridor, a roadway project supporting the Louisiana International Terminal.

SB 94 (Act No. 105) renames the Gulf of Mexico as the Gulf of America in state laws and defines jurisdictional “waters of the state” and “fastlands” (land protected by levees or otherwise not subject to regular inundation). The Act specifies that “waters of the state” do not include “fastlands.”

HB 688 (Act No. 395) adjusts the board memberships, leadership roles, term limits, and vacancy procedures for the Southeast Louisiana Flood Protection Authority, both East and West.

Department of Wildlife & Fisheries (DWF)

HB 497 (Act No. 201) expands promotion of the Catch and Cook Program by authorizing the Louisiana Seafood Promotion and Marketing Board, Louisiana Charter Boat Association, and Louisiana Restaurant Association to participate in the program with DWF. The law adds licensed charter boat captains as eligible participants in the program. It updates labeling requirements for fish and alligator products served in restaurants and modifies permitting for participants.

HB 564 (Act No. 87) establishes the Conservation Incentive Program within DWF to provide grants to assist private landowners for projects enhancing wildlife habitat and managing native species on private lands. Eligible projects include: (1) forest stand improvement; (2) increasing prevalence of water on agricultural landscapes to provide habitat for wintering waterfowl and wetland birds; (3) management of private wetlands to increase suitability for waterfowl and wetland birds; (4) prescribed fire implementation; and (5) feral swine control.

HCR 75 creates the Chronic Wasting Disease Task Force in response to the neurodegenerative disease, first found in Louisiana deer in 2022.

SB 85 (Act No. 415) allows local governments to establish and enforce no-wake zones within 300 feet of public bridges.

Environment

HB 173 (Act No. 67) authorizes State Park wardens to enforce litter laws statewide and to issue citations with civil penalties. The Department of Culture, Recreation and Tourism may initiate administrative proceedings to recover the penalties.

SB 46 (Act No. 95) prohibits the intentional release of substances into the atmosphere within Louisiana’s borders to affect the weather, except for firefighting and agricultural applications.

SB 32 (Act No. 94) provides a safe harbor from civil liability for suppliers, agricultural producers, and landowners using gypsum (typically an industrial by-product) as a soil amendment, provided they comply with all applicable laws, rules, regulations, and specifications.

Litigation

HB 431 (Act No. 15) amends Louisiana Civil Code article 2323 and replaces Louisiana’s longstanding pure comparative fault regime with a modified comparative fault regime. Under the prior version, a plaintiff’s damages were reduced in proportion to his or her percentage of fault, regardless of how significant that percentage was—even if plaintiff’s fault was 99%, in which case the plaintiff would recover 1% from the tortfeasor. The new law bars recovery for a plaintiff found to be 51% or more at fault. If the plaintiff’s fault is 50% or less, damages are reduced proportionally. Importantly, under both the prior version of Article 2323 and the amended version, recoverable damages will not be reduced if an intentional tortfeasor partly contributed to the injury, death, or loss.

HB 291 (Act No. 176) amends Civil Code articles 2315.1 and 2315.2 to modify the prescriptive periods for survival and wrongful death actions. Under prior law, both actions prescribed one year from the date of the decedent’s death. Under the new law, both actions prescribe the longer of (i) one year from date of death or (ii) two years from the date that injury or damage was sustained. The bill also provides that prescription for medical malpractice survival actions is governed by La. R.S. 9:5628 and wrongful death medical malpractice actions prescribe one year from death.

Effective Date of Acts and Future Sessions

Unless otherwise specified in the legislative text, the effective date of all bills during the 2025 Legislative Session is August 1, 2025. Kean Miller will continue to monitor these developments and future legislative sessions. For questions or to discuss any of the foregoing, please contact one of the authors of this article or Kean Miller’s Energy/Environmental Team.

[1] For more information about the State Operating Budget for the new fiscal year or other general information about the 2025 Regular Session, please see the Louisiana House of Representatives Legislative Services “Session Wrap” summary report, which is available at https://house.louisiana.gov/Agendas_2025/2025RS-SessionWrap.pdf.

[2] For a summary of the changes to the legacy lawsuit process, please see: Louisiana Legislature Revisits Act 312 and Oilfield Legacy Lawsuits | Louisiana Law Blog.

[3] For a summary of the reorganization of the DCE, please see: Introducing the Department of Conservation and Energy | Louisiana Law Blog.

[4] Both SB 36 (Act 407) and SB 73 (Act 414) provided modifications to the final language of SB 244 (Act 458).

Act 458 of the 2025 Louisiana legislative session (“Act 458” or the “the Act”), recently signed into law by Governor Jeff Landry, introduced changes to the regulation of oil and gas operations in Louisiana. In addition to enacting changes to the laws regarding oilfield legacy suits (summarized in this recent post), Act 458 also changed the structure of the government offices charged with managing the state’s energy resources. Governor Landry signed the Act into law on June 24, 2025.

Act 458 reorganizes the Department of Energy and Natural Resources (“LDENR”), renaming it as the Department of Conservation and Energy (“Department”).[1] This reorganization and rebranding will formally take effect on October 1, 2025.[2] “All natural resources of the state not within the jurisdiction of other state departments or agencies are within the jurisdiction of the department.”[3] The Act also creates three new offices within the Department: an Office of Permitting and Compliance, an Office of Enforcement, and an Office of State Resources.[4] The Office of State Resources is given a broad mandate to “oversee all portions of state law within the jurisdiction of the department which relate to management of the state’s natural resources, included but not limited to mineral and energy leasing.”[5]

The Department will be led by a Secretary, appointed by the Governor with the consent of the Senate.[6] This Secretary will assume all duties and functions of the former Commissioner of Conservation.[7] In addition, the Secretary shall have the power to “[i]ssue directives . . . that establish immediate agency policy effective upon issuance,”[8] and to “[e]stablish a formal certification process to recognize academic and research institutions within the state who possess specialized expertise in areas such as energy technologies, natural resources management, environmental stewardship, resource economics, and other strategically significant fields of research and development related to the mission of the department.”[9] The Secretary also has broad power to “[r]eorganize, consolidate, create, merge or abolish” units within the Department in order to streamline operations and provide flexibility to respond to changing conditions.[10]

The Secretary will be assisted by a Deputy Secretary, appointed by the Secretary with the consent of the Senate.[11] The Department will also include an Undersecretary, appointed by the Governor with the consent of the Senate, who shall direct the Office of Administration and the Louisiana Natural Resources Trust Authority (“Trust Authority”).[12] The Undersecretary will oversee the Department’s finances and report to the Secretary, and will have contracting authority to hire third parties to assist in this role. The Trust Authority’s powers include “[b]onding, financing, or otherwise acting as a State Energy Financing Institution pursuant to federal law, to fund or assist in funding a plant or facility demonstrating technological advances of new methods and procedures and prototype application for the exploration, development, production, transportation, conversion, and use of energy resources.”[13]

Act 458 reestablishes the former Natural Resources Commission (“Commission”) within the Department, but the Commission will not have its traditional authority to grant or deny permits or take enforcement actions.[14] Instead, the Commission will “[s]erve as primary coordination body for water management planning, statewide flood protection, and develop a process for its centralization striving for uniformity.”[15] The Commission will develop processes to help government agencies coordinate their responses to floods and other major events. The Commission is directed to meet quarterly.[16] Also, the Capital Area Groundwater Conservation District will be moved under the supervision of the Department.[17]

Act 458 then defines eight offices within the Department, and their functions, including the three offices created earlier in the Act.

The Executive Office of the Secretary “shall be responsible for assisting the secretary in the exercise of the functions and duties established in law of the secretary.”[18]

The Office of the Natural Resources Commission will support that Commission in its duties as a coordination body and will provide “intergovernmental affairs and communications support to the commission and the department.”[19]

 The Office of Legal Services will provide legal support and will administer the Saltwater and Oil Assessment Process once that process is established in law.[20]

The Office of Administration “shall be responsible for accounting and budget control, procurement and contract management, data processing, management and program analysis, information technology and geographic information systems, strategic planning, and personnel management for the department and all of its offices.”[21]

The Office of Permitting and Compliance will handle all permitting and regulatory compliance functions within the Department.[22]

The Office of State Resources will “[p]erform the functions of the state relating to the lease of or other contracts for the use of lands and water bottoms of the state” for energy purposes (including oil and gas production), work with the Center for Energy Studies to maintain geological surveys of the state, and provide for the administration of state water bottoms, including drilling therein and the management of groundwater, surface water, and other water resources.[23]

The Office of Enforcement will enforce regulations within the Department’s jurisdiction.[24]

Finally, the Office of Energy will “organize, plan, supervise, direct, administer, execute, and be responsible for the functions and programs relating to the deployment and operation of alternative energy infrastructure in this state in a manner that results in affordable and reliable energy.”[25]

In conclusion, Act 458 substantially reorganizes the regulatory structure for the oil and gas industry in Louisiana. Tyler Gray, the current Secretary of LDENR, stated that the reorganization is intended to make the Department “more effective and efficient in its role of balancing the needs of supporting energy and sustaining our shared environment.”[26]

[1] 2025 Regular Session, Act 458 (available here), p. 7, lines 8–9.

[2] Id., p. 227, line 3.

[3] Id., p. 7, lines 15–17.

[4] Id., pp. 7–8.

[5] Id., p. 7, line 30 – p. 8, line 3.

[6] Id., p. 184, lines 18–20.

[7] Id., p. 184, lines 28–30.

[8] Id., p. 187, lines 22–24.

[9] Id., p. 188, lines 2–6.

[10] Id., p. 188, lines 17–25.

[11] Id., p. 190, lines 1–3.

[12] Id., p. 190, 27–30.

[13] Id., p. 192, lines 23–27.

[14] Id., p. 182, lines 5–9.

[15] Id., p. 183, lines 4–6.

[16] Id., p. 183, lines 16–17.

[17] Id.,p. 198, lines 21–24.

[18] Id., p. 194, lines 13–14.

[19] Id., p. 194, lines 18–21.

[20] Id., p. 194, lines 22–25.

[21] Id., p. 195, lines 7–11.

[22] Id., p. 195, lines 13–16.

[23] Id., p. 195, line 18 – p. 196, line 15.

[24] Id., p. 196, lines 16–19.

[25] Id., p. 196, lines 20–23.

[26] DENR Reorg Bill SB244 Signed Into Law | Department of Energy and Natural Resources | State of Louisiana

Nearing the end of the 2025 Regular Legislative Session, on June 11, 2025, the Louisiana Legislature passed Senate Bill No. 244 (“SB 244”), which brings significant changes to Louisiana’s oilfield site remediation statute, commonly known as “Act 312” (found at La. R.S. § 30:29). Act 312 applies to cases where environmental damage is alleged from historical oil and gas operations (commonly referred to “legacy” cases) and provides the procedure for the State to evaluate, approve, and maintain oversight over oilfield site evaluation and remediation.

Effective to legacy cases filed after September 1, 2027, SB 244, if signed by the Governor, would provide much needed clarity, not only to litigants, but to the State agencies entrusted with oversight over oilfield site remediation.

Submission of Evaluation or Remediation Plans

In legacy cases, parties that admit responsibility or are otherwise found responsible for environmental damage at trial are required to submit to the Louisiana Department of Energy and Natural Resources (“the Department”), for review and approval, plans addressing the environmental damage. The plan approved by the Department is the Most Feasible Plan for addressing environmental impacts.

In a nod to recent jurisprudence, SB 244 amends Act 312 to allow a responsible party to submit a remediation or an evaluation plan. This change to Act 312 is in harmony with its stated purpose to “ensure that damage to the environment is evaluated and if necessary remediated to a standard that protects the public interest.” This amendment will encourage responsible parties to admit responsibility under Act 312 and provides the Department with the flexibility necessary to appropriately address potential impacts to the environment.

Risk-Based Standards and Departmental Authority

The amendments to Act 312 expressly recognize the Department’s authority to use risk-based standards, such as the Risk Evaluation/Corrective Action Program (“RECAP”), and other exceptions to Statewide Order 29-B, when approving or structuring the Most Feasible Plan. While the Department shall consult with landowners regarding these exceptions, it is not required to obtain their consent to structure a plan with such exceptions, balancing environmental impacts with scientific and practical considerations.

Adoption of the Most Feasible Plan

Courts would now be mandated to adopt the Department’s plan as the Most Feasible Plan unless a party can prove by clear and convincing evidence that another timely submitted plan is a more feasible plan to adequately protect the environment and the public health, safety, and welfare. This new provision contrasts with the “preponderance of the evidence” standard, and it aims to streamline the process to adopt a Most Feasible Plan, reducing delays and avoiding unnecessary costs.

Appeals Process

Any appeal of a judgment adopting the Most Feasible Plan must be taken to the Court of Appeals for the First Circuit in Baton Rouge. This centralized appeals process, located in close proximity to the Department, is designed to ensure statewide consistency and efficiency in handling disputes related to remediation or evaluation plans.

Stay of Trial on the Merits

The amendments to Act 312 would expressly provide for a stay of the trial on the merits, from the filing of a limited admission until the court adopts the Most Feasible Plan. This pause conserves costs and allows the parties to focus on proceedings with the Department to develop and approve a Most Feasible Plan – so the parties, the court, and the jury have the benefit of the Most Feasible Plan at trial.

Damages

The amendments would adopt jurisprudential guidance by clarifying that a party’s legal responsibility is satisfied by meeting the standards set forth in applicable regulations unless there is an express contractual provision for remediation to original condition or another specific contractual standard.

The amendments also would limit a plaintiffs’ recovery of non-remediation damages. Economic loss damages may be recovered if proven by a preponderance of the evidence. Other non-remediation damages are capped at 300% of the property’s fair market value, based on its undamaged surface value.

Attorneys’ Fees & Costs

Upon adoption of the Most Feasible Plan by the trial court, parties admitting responsibility or found legally responsible are no longer liable for further attorney fees or costs, including expert witness fees and environmental evaluations. Further, defendants found not to have caused or be legally responsible for environmental damage are now entitled to recover reasonable attorney fees and all costs from the plaintiff.

Voluntary Administrative Process

The amendments would establish an administrative process for alternative dispute resolution if agreed to by the parties, which offers parties a less adversarial path to resolving disputes. This option encourages collaboration and efficiency in addressing claims for environmental impacts.

A new Supreme Court decision creates potential traps for the unwary and gives the Internal Revenue Service (“IRS”) nationwide power to leave a taxpayer without a remedy to contest certain collection actions. Importantly, while a Collection Due Process (“CDP”) action is pending, taxpayers should ensure to the extent possible that no refunds are generated for other tax years as the IRS may seize these amounts to satisfy the liability at issue in the CDP, eliminating the taxpayer’s right to contest that liability. In Commissioner v. Zuch, with Justice Barrett delivering the majority opinion, the Supreme Court held that the United States Tax Court (the “Tax Court”) lacked jurisdiction under Internal Revenue Code (“IRC”) Section 6330 to resolve disputes between the taxpayer and the IRS when the IRS is no longer pursuing a levy. Instead, the taxpayer’s remedy in such cases is to file a suit for a refund against the IRS in federal district court. Taxpayers with similar ongoing collections issues should immediately identify refund deadlines and file refund claims with the IRS (on a protective basis or otherwise) before the statute of limitations runs out and they are potentially left with no recourse.

In Zuch, for the 2010 tax year, Jennifer Zuch (“Taxpayer”) and her then-spouse separately filed tax returns. After receiving notice that the IRS intended to levy on her property to collect an unpaid tax liability, Taxpayer requested a CDP hearing under IRC Section 6330. At the CDP hearing, Taxpayer argued that her account should have been credited with estimated taxes that were already paid to the IRS. The IRS Appeals Officer disagreed and sustained the levy action because the estimated tax payments had already been credited to her then-spouse. Taxpayer then appealed to the Tax Court, however, while this process was occurring over several years, Taxpayer filed multiple tax returns with overpayments that entitled Taxpayer to a refund. Each time, instead of issuing a refund, the IRS offset said amounts against Taxpayer’s outstanding tax liability for the 2010 tax year. Eventually, Taxpayer’s balance was zero, so the IRS moved to dismiss the Tax Court proceeding as moot. The Tax Court held that it lacked jurisdiction over the appeal because there was no longer a justification for the IRS to pursue a levy. Taxpayer appealed the Tax Court decision, and the Third Circuit Court of Appeals agreed with Taxpayer, holding that the IRS’s decision not to pursue a levy did not moot the Tax Court proceeding. The Third Circuit’s decision created a split with the Fourth and the D.C. Circuits.

The Supreme Court reversed the decision of the Third Circuit and remanded the case for further proceedings consistent with the opinion, holding that a “determination” within the meaning of IRC Section 6330(d)(1) “refers to the binary decision whether a levy may proceed.” The Court reasoned that IRC Section 6330(c)(3), which sets forth the basis for the Appeals Officer’s “determination,” states that IRS Appeals “shall take into consideration” three factors, including the existence or amount of the underlying tax liability—in this case, whether the estimated tax payments were properly applied. Thus, those “considerations” are only inputs which result in the “determination” of the IRS Appeals Officer sustaining the levy, i.e., the output. The Supreme Court further reasoned that IRC Section 6330(e) only goes so far as to confer on the Tax Court the authority to issue an order enjoining a levy but no authority to order a refund or issue a declaratory judgment to resolve a tax liability dispute. The Tax Court, therefore, only has jurisdiction to review the “determination” and has no authority to resolve tax disputes that no longer have a connection to an ongoing levy. Finally, the Supreme Court reminds the Taxpayer that she does not lack recourse against the IRS and should “[r]ecall the default rule: Taxpayers cannot challenge disputes about tax liability without first paying the disputed taxes.” Taxpayer may file a post-deprivation suit for a refund (citing 28 U.S.C. §§ 1346(a)(1), 1491(a)(1)).

In light of the Supreme Court’s decision, Taxpayers should be aware that there first must be a levy action for the Tax Court to exercise jurisdiction under IRC Section 6330. That is, there will need to be an unpaid tax because otherwise there cannot be justification for a levy. According to the majority opinion, the Taxpayer in Zuch had a few options. Because the Taxpayer in Zuch had overpayments in subsequent years, she ended up in the same place—filing a refund suit—as she would have had she initially paid the tax when due. Had Taxpayer not had overpayments in subsequent years, the unpaid tax liability and the levy would have remained, and the Tax Court would have retained jurisdiction to decide whether the levy could move forward or whether to enjoin the levy. Importantly, while the Supreme Court did not cut off a taxpayer’s recourse under either circumstance, it explicitly sent the message that “[t]he Tax Court is a court of limited jurisdiction.” (citing Commissioner v. McCoy, 484 U. S. 3, 7 (1987); I.R.C. § 7442).

In addition, although the decision is rendered in the context of the Tax Court’s jurisdiction, its rationale may also be relied upon by IRS Appeals Officers looking to deny CDP hearings where the IRS has been able to collect the allegedly outstanding liabilities by offset.

In the aftermath of the ruling, similarly-placed taxpayers may find themselves in the difficult position of deciding whether to pursue a CDP proceeding knowing that the IRS could collect the liabilities at issue by offset and thereby defeat the Tax Court’s jurisdiction (as in Zuch). Or, as the dissenting opinion by Justice Gorsuch points out, the IRS could potentially drop the proposed levy at any point in the proceedings and strip the taxpayer of their Tax Court remedy.

The alternative that the majority opinion provides is for a taxpayer to pay the liabilities at issue and then file a timely administrative claim with the IRS, followed by a timely suit for refund in federal district court. However, when a pre-payment litigation option such as IRS Section 6330 exists, the decision to use a post-deprivation remedy will not be made lightly, particularly because a refund suit requires full payment of all taxes, interest, and penalties for a tax period.

If taxpayers do choose to pursue (or continue to pursue) CDP proceedings in similar matters, it will be important to calendar any deadlines for filing an administrative refund claim, as well as a refund suit, in relation to any amounts that the IRS collects by offset. As the dissent also points out, the Taxpayer in Zuch did not timely file all her administrative refund claims while she was pursuing the CDP proceedings, leaving her potentially remediless to recoup some of her overpayments from the IRS. Hence, at a minimum, taxpayers should ensure to the extent possible that taxes for other periods are not overpaid, and even if CDP proceedings are ongoing, taxpayers should consider at least filing protective refund claims for any overpayments to preserve their rights before the statute of limitations runs out and leaves them without recourse.

On May 21, 2025, the Louisiana Department of Environmental Quality (“LDEQ” or “the Department”) officially approved the use of unmanned aircraft systems (“UAS”), or drones, for visual inspections of aboveground storage tanks under LAC 33:III.2103.D.2.e.[1]

LDEQ estimated a potential $4 million in annual savings for the Louisiana aboveground storage tank community by reducing the need for scaffolding, cranes, and other equipment required by traditional visual inspection methods.

Drone Requirements for Tank Inspections

Prior to implementing drones for tank inspections, Louisiana facilities should ensure that the technical specifications of any drone used meet the requirements identified by LDEQ. The Department also encourages use of models approved by the U.S. Department of Defense.[2]

SOPs Ensure Compliance and Safety During Inspections

Louisiana facilities with aboveground tanks should update or prepare policies and standard operating procedures (“SOPs”) before using drones for tank inspections. Procedures may include:

  1. direction for ensuring that the drone system specifications are compliant;
  2. certification checks for the pilot(s) of the drone;
  3. steps to prepare the area for safe inspection; and
  4. security protocols surrounding the information captured.

Unauthorized Drone Activity

As drones become more widely used in industrial and agency operations, facilities must also be prepared to respond to unauthorized drone activity.

Although federal and state laws prohibit drone flights over certain critical infrastructure,[3] facilities should never attempt to disable or interfere with an unrecognized drone. If personnel observe a drone that is not accounted for, they should document the sighting and contact the Louisiana State Police, the regional Federal Aviation Administration office, and/or another appropriate authority.[4]

Questions

If you or your team have questions about LDEQ’s new drone usage guidelines, contact Michael Doggett or another member of our Louisiana Environmental Regulation group. Based in the firm’s Baton Rouge office, Michael leverages his legal and Chemical Engineering background to assist clients with regulatory compliance and intellectual property matters.

[1] LDEQ press release can be found here: UnmannedAircraftInspectionsPressRelease.pdf.

[2] See Blue UAS Cleared Drone List.

[3] See e.g., La. R.S. 14:337 (Unlawful use of an unmanned aircraft system); 14 C.F.R. § 99.7 (prohibits drone flight in certain areas designed in conjunction with the Department of Defense, including over certain critical infrastructure); see also 14 C.F.R. Part 107 (Small Unmanned Aircraft Systems regulations).

[4] Contact Louisiana State Police (LSP) Suspicious Activity Hotline 1-800-434-8007, use the See Send app, or file an online complaint of suspicious or criminal activity. see https://la-safe.org/suspicious-activity-reports/.

In Louisiana state courts, litigation costs can escalate quickly, especially for a defendant. While a prevailing party is generally entitled to an award of costs, the prospect of bearing unrecoverable costs quickly becomes a serious concern for defendants when facing aggressive opposing counsel on a contingency fee and a plaintiff with limited financial resources. Even when a defendant prevails in dismissing the claims against it, recovery of costs can be difficult. Fortunately, the Louisiana Revised Statutes contain an oft-overlooked remedy that may be used to require a plaintiff to post security for costs or face dismissal of their claims.

While a bond for costs is a familiar tool to federal court practitioners, state court litigators are often surprised to learn that the Revised Statutes contain two provisions which, if properly applied, may protect their clients from incurring substantial, unrecoverable costs in defense of meritless claims: La. R.S. 13:4522 (Statewide) and La. R.S. 13:1215 (Orleans Parish).  These two statutes do more than simply afford a layer of financial protection for defendants – they mandate it by providing that, if plaintiff fails to post security within the time fixed by the court, the result is a dismissal of the suit, without prejudice, La. Rev. Stat. Ann. § 13:4522, or a non-suit. La. Rev. Stat. Ann. § 13:1215.

The Statewide Rule: La. R.S. 13:4522

The defendant before pleading in all cases may by motion demand and require the plaintiff or intervenor to give security for the cost in such case, and on failure to do so within the time fixed by the court such suit or intervention, as the case may be, shall be dismissed without prejudice. This section shall not apply to the Parish of Orleans and to cases brought in forma pauperis, nor to the state or any political subdivision thereof.

La. Rev. Stat. § 13:4522 gives defendants a procedural mechanism to manage cost exposure. In most civil suits (excluding those filed in the Parish of Orleans), a defendant may move the court—before filing an answer or pleading—to require the plaintiff or intervenor to provide security for litigation costs. If the plaintiff fails to furnish the bond within the court-ordered timeframe, the case is dismissed without prejudice.

This statute applies broadly but with key exceptions:

  • It does not apply in the Parish of Orleans (see La. R.S. 13:1215),
  • It excludes cases brought in forma pauperis, and
  • It does not apply where the State or a political subdivision is the plaintiff.

The Louisiana Supreme Court has explained that the requirement for the advance posting of security for costs “secures the payment of those expenses incurred by the defendant in defense of the suit which may be taxed as court costs and which the plaintiff may finally be condemned to pay.” Bize v. Larvadain, 2018-394 (La. App. 3 Cir. 12/28/18); 263 So. 3d 584, 592, writ denied, 2019-0419 (La. 5/6/19); 270 So. 3d 577 (quoting Carter v. Phillips, 337 So.2d 187, 188 (La.1976)). However, this provision does not relate to ordinary court costs for which the clerk of court is authorized to demand security.  Whitson v. American Ice Co., 164 La. 283, 113 So. 849 (1927). 

But what costs are covered? In Romero v. Romero, 232 So. 2d 572 (La. App. 3 Cir. 1970), the Third Circuit clarified that the statute is meant to protect defendants from paying upfront necessary defense costs that could be taxed to the plaintiff should it prevail, such as:

  • Expert witness fees (e.g., auditors, surveyors, scientists),
  • Deposition costs (including notary and commission fees),
  • Other costs directly tied to preparing a defense.

Importantly, the trial judge has discretion in setting the amount of the required bond, and “the defendant bears the burden under this provision of showing how large a bond is necessary to protect him.”  Carter v. Phillips, 337 So. 2d 187, 188 (La. 1976).  “[I]t is within the discretion of the trial judge to determine whether the showing required may be made by the allegations in the motion, supporting affidavits, the arguments of counsel at the hearing, introduction of evidence, or in any other manner which the trial judge deems appropriate.” Id. at 189. However, trial judges must exercise discretion “with the regard for the actual necessity for a bond and for the interest or motive of the party demanding it.’” Id. (quoting Whitson, supra, at 851).             

The Orleans Parish Rule: La. R.S. 13:1215

For suits filed in Orleans Parish, legislators have fashioned a separate statute:

The defendant in any cause may require the plaintiff or party prosecuting the cause to give bond or other security, in such amount as may be fixed by the court, to secure the repayment on the final termination of the cause of all costs expended by the defendant therein. The order requiring such bond or security for costs shall issue ex-parte on the application of the party, without costs, and no further proceeding shall be had in the cause until such bond or security has been furnished. The court shall fix the delay within which such bond or security for costs shall be furnished, and the failure to furnish it, within such delay, shall operate a dismissal of the cause as in case of non-suit. In all cases the surety for costs shall be considered a party to the cause and shall be condemned for the amount of costs recoverable in solido with the party cast in the final judgment in the cause.

For litigation within Orleans Parish, La. R.S. 13:1215 provides a distinct procedure allowing defendants to request that the plaintiff (or any party prosecuting the action) furnish a bond or other form of security to cover the repayment of court costs the defendant may incur. Like La. R.S. 13:4522, this provision may be used as an early check on the viability, or lack thereof, of the plaintiff’s claim.

Key features of § 13:1215 include:

  • Applies to any civil matter filed in Orleans Parish, regardless of the type of claim.
  • Unlike its state-wide counterpart, in Orleans Parish the defendant may apply ex parte, meaning without notice to the other side, and the court may issue the order without hearing or court costs. Further, the statute does not require that the defendant bring the motion before filing an answer or other pleading.
  • The court sets the amount of the bond based on anticipated costs and fixes a deadline by which the plaintiff must furnish it.
  • If the plaintiff fails to meet this deadline, the case is dismissed as a non-suit.
  • Importantly, the surety becomes a party to the case and is jointly and severally liable (in solido) with the losing party for any court costs awarded at final judgment.

However, courts have limited what may be considered as costs under the Orleans Parish-specific statute. For example, in  Two Canal Street Investors, Inc. v. New Orleans Building Corporation, 2016-0825 (La. App. 4 Cir. 9/23/16); 202 So.3d 1003, the Louisiana Court of Appeals for the Fourt Circuit held that speculative or indeterminate costs—such as depositions, expert witness fees, or other litigation expenses that may or may not be taxed as costs—are not subject to security under La. R.S. 13:1215. These types of expenses often cannot be accurately quantified until after trial; therefore, the Fourth Circuit excluded such costs that a defendant may seek to secure.

Why This Matters for Defendants:

In practice, these statutes offer strategic leverage. If a defendant is sued by a plaintiff that appears meritless, requesting security for costs can:

  • Protect the defendant from unrecoverable litigation expenses;
  • Encourage the plaintiff to seriously evaluate the financial commitment of pursuing the claim; and
  • Deter frivolous or speculative litigation.

For defendants in Orleans Parish, § 13:1215’s ex parte procedure adds even more tactical value, enabling a fast and quiet resolution before discovery even begins.

Failure to furnish court-ordered security can result in dismissal of the case. While in forma pauperis status offers an exemption, all other plaintiffs must be prepared to timely post security if the motion is granted.

Final Takeaway

Louisiana’s security-for-cost statutes are powerful underutilized tools that can help manage financial risk and protect defendants from being left with the bill after prevailing in court. Whether you’re considering filing such a motion—or need to respond to one—it’s important to understand your rights and obligations.

At Kean Miller, we guide clients through all aspects of litigation strategy, including procedural safeguards like these. Contact our litigation teams to discuss how we can help you secure your position and control litigation risk in Louisiana courts.

It seems that the death of Chevron deference was not the end of agency deference. Almost a year after striking down Chevron deference, today the U.S. Supreme Court issued a decision on the role of judicial deference towards an agency’s fact and scope determinations. In an opinion penned by Justice Kavanaugh, the U.S. Supreme Court found that the U.S. Surface Transportation Board (the “Board”) rightfully excluded the environmental effects of upstream oil drilling and downstream oil refining when approving the construction of an 88-mile railroad line in Utah. Seven Cnty. Infrastructure Coal. v. Eagle Cnty., Colorado, 605 U. S. ____ (2025). Contrary to the D.C. Circuit’s decision, which found that the Board was required to evaluate these impacts, the Supreme Court held that the railway project’s Environmental Impact Statement (“EIS”) complied with the National Environmental Policy Act (“NEPA”) requirements, focusing on the procedural nature of NEPA and the “textually mandated focus on the proposed action.”[1]

Despite the strong language in the opinion, likening NEPA to an overgrown “judicial oak that has hindered infrastructure development under the guise of just a little more process,” and demanding “course correction,”[2] the decision still leaves open questions on scoping of EIS. The Court aligned some guiderails stating: “A relatively modest infrastructure project should not be turned into a scapegoat for everything that ensues from upstream oil drilling to downstream refinery emissions.”[3] But the Court also recognized that in certain circumstances, other projects may be interrelated enough in time or place to require consideration.

Acknowledging the gray area in defining the project, the Court is leaving the decision to the agencies stating:

When assessing significant environmental effects and feasible alternatives for purposes of NEPA, an agency will invariably make a series of fact-dependent, context-specific, and policy-laden choices about the depth and breadth of its inquiry—and also about the length, content, and level of detail of the resulting EIS. Courts should afford substantial deference and should not micromanage those agency choices so long as they fall within a broad zone of reasonableness.[4]

Thus, the Court is signaling a retreat from judicial interference in the scoping of a project under NEPA and voiced overall skepticism with the way NEPA has been interpreted in the past. Projects may draw parallels to this decision to justify the exclusion of upstream and downstream oil and gas impacts in their respective evaluations.

As mentioned, last June the Supreme Court ended Chevron deference in Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), which focused on an agency’s interpretation of legal ambiguities in federal statutes, which the Court held would now be subject to de novo review. In contrasting this case and Loper Bright, Justice Kavanaugh explained that while NEPA requires an EIS to be “detailed,” and it is the Court’s power to interpret the meaning of “detailed” (under Loper Bright), what details need to be included in an EIS is a question of fact that warrants deference to the agency. “The agency is better equipped to assess what facts are relevant to the agency’s own decision than a court is.”[5]

The Kean Miller environmental regulatory and industrial project teams are closely monitoring the impacts of this decision on currently pending EIS and developing projects.

[1] Decision at p. 16 (internal citation omitted, emphasis added).

[2] Decision at p. 13.

[3] Decision at p. 19.

[4] Decision at p. 12 (emphasis added).

[5] Decision at p. 10.

While environmental justice initiatives may have experienced a recent administrative curtailment at the direction of the executive branch,[1] recent litigation trends show that EJ-related issues are far from moot. On Wednesday, April 9, 2025, the United States Court of Appeals for the Fifth Circuit reversed the District Court’s dismissal of Appellants’ EJ-related claims regarding racially discriminatory practices in industrial siting and remanded this case to the U.S. District Court for the Eastern District of Louisiana for further proceedings.[2]

The Appellants, comprising community and faith-based groups representing residents in St. James Parish,[3] appealed the dismissal of their challenge to the Parish’s[4] land use practices. In sum, Appellants alleged that the Parish caused hazardous industrial developments to be disproportionately sited in majority-Black areas, that these developments threaten health, property values, and desecrate ancestral burial sites, and that the Parish discriminates by protecting white Catholic churches and schools, but not Black Baptist churches.

The District Court dismissed all seven of the claims with prejudice: (I) Thirteenth Amendment claims (badge or incident of slavery); (II) Fourteenth Amendment Equal Protection claims; (III) Fourteenth Amendment Substantive Due Process claims; (IV) 42 U.S.C. § 1982 claims (property rights); (V) 42 USC §2000cc Religious Land Use and Institutionalized Persons Act (“RLUIPA”) claims (substantial burden on religious rights); (VI) 42 USC §2000cc RLUIPA claims (religious discrimination); and (VII) claims under Article XII Section 4 of the Louisiana Constitution (Preservation of Linguistic and Cultural Origins).

The District Court found some plaintiffs lacked standing and declared most claims time barred. Specifically, the court held that (1) claims I-IV and VI were time barred because they were based on a single incident—the Parish’s adoption of its 2014 Land Use Plan; (2) that claims V and VII were dismissed with prejudice because the Appellants did not allege religious injury standing; (3) that only Inclusive Louisiana had standing to sue for property injuries, and (4) that none of the Appellants had standing to sue for injuries related to unequal treatment.[5] Appellants raised these four issues on appeal.

1. Statute of Limitations (Claims I-IV, VI)

The Court agreed with Appellants that their injuries were related not only to the adoption of the 2014 plan, but also to a pattern of ongoing, recent discriminatory practices. As to claims I-IV, the Court reasoned that the 2022 rejection of a pollution moratorium in Black areas and the simultaneous approval of a solar moratorium in majority-White areas fell plainly within the applicable one-year limitations period.[6] Likewise, the Court  reasoned that the Parish’s approvals of (1) a land use permit for a polyurethane manufacturing facility on a former plantation within a mile of the Appellants and a historically majority-Black Baptist Church and (2) a proposal to build a methanol production plant in the Fifth District near Mount Triumph, plainly fell within the time limit applicable to Claim VI. The Court noted that the Parish cited no authority “supporting the proposition that once a municipality’s land use plan is beyond the statute of limitations, any claims arising from that municipality’s individual land use decisions are time barred, regardless of when those decisions were made.”[7] Thus, the Court reversed the dismissal of these claims as time barred.

2. Religious and Cultural Injuries (Claims V and VII)

The Fifth Circuit held Appellants had adequately alleged religious and cultural harms caused by desecration of ancestral burial sites, such that the Appellants had established standing. The Court reasoned that these injuries were fairly traceable to the Parish’s land use decisions, not only private landowners, as the alleged injuries were not only from a lack of physical access to Appellants’ ancestors’ cemeteries, but also from the destruction and desecration traceable to the Parish through its individual land use decisions.[8]

3. Property Injuries

All three plaintiff organizations properly alleged diminished property values of their members’ property due to industrial siting. Although the Appellants could have given more detail on how the Parish’s land use decisions affected their property values, the court still found this was a concrete and traceable injury sufficient for standing, and that the Parish cited no authority to support that “Article III mandates additional specificity to establish traceability.”[9]

4. Stigmatic Harm

Finally, the Court found that Appellants had alleged they were personally subjected to unequal treatment, which supports a stigmatic injury claim under the Equal Protection Clause. Specifically, the Appellants alleged that the Parish’s land use decisions consistently steer hazardous industrial development to predominantly Black districts while shielding predominately White districts from industrial development, which sufficed to show unequal treatment.[10]

Although this decision is a reversal of a pre-trial motion to dismiss and not a final decision on the merits, it is a novel approach to land use moratoriums. Further, this decision will be instructive for future cases on environmental justice and land use policies.

[1] See, e.g., Executive Order “Protecting American Energy from State Overreach” (April 8, 2025)(directing the U.S. attorney general to identify state laws that address climate change, ESG initiatives, environmental justice and carbon emissions, and to take action to block them).

[2] Inclusive Louisiana et al. v. St James Parish et al., No. 23- 30908, (5th Cir. Apr. 9, 2025).

[3] Inclusive Louisiana, Mount Triumph Baptist Church, and RISE St. James (collectively “Appellants”).

[4] St. James Parish, St. James Parish Council, and the St. James Parish Planning Commission (collectively, “Parish”).

[5] Inclusive Louisiana, No. 23- 30908, slip copy at pp. 8-9 (5th Cir. Apr. 9, 2025).

[6] Id. at p. 12.

[7] Id. at p. 16.

[8] Id. at p. 18.

[9] Id. at p. 20-21.

[10] Id. at p. 22.