After the 2003 Corbello decision, the Louisiana legislature attempted to enact a workable procedure for recovering environmental damages arising from oil and gas operations known as Act 312. The main goal of Act 312 was to ensure that property contaminated by oilfield operations would be cleaned up to applicable regulatory standards. Since the enactment of Act 312, very few cases have made it through the Act 312 process. Thus, in an attempt to expedite the identification and remediation of contaminated property, the Louisiana legislature recently passed two new measures revising the Act 312 procedure.
Summary of the New Legislation
The first measure (a House bill enacted as Act 754) amends the Louisiana Code of Civil Procedure to provide for:
- The issuance of an environmental management order (EMO) to expedite site inspections and sampling, and
- A limited admission of environmental liability that allows defendants to begin to remediate property before trial (limited to the most feasible plan to remediate the property).
The second measure (a Senate bill enacted as Act 779) provides for a number of amendments to Act 312:
- Allows a plaintiff to provide a notice of intent to investigate potential environmental damage that suspends prescription of the claim for one year upon the notice being provided to LDNR,
- Requires the plaintiff to identify the alleged environmental damage and the results of any environmental testing if a lawsuit is filed after a notice of intent to investigate is filed,
- Permits a defendant to request an early preliminary hearing to determine whether there is good cause for it to remain a defendant in the case,
- Grants subpoena power over agency personnel involved in developing the feasible plan and allows for discovery regarding the development of the plan after a final plan has been submitted,
- Prohibits ex parte communications with agencies, officials, and contractors who are involved in formulating the feasible plan,
- Requires the Departments of Agriculture, Forestry, and Natural Resources, along with the Department of Environmental Quality (DEQ), to comment if LDNR approves or structures a preliminary plan that applies regulations other than those of LDNR, and
- Provides for a waiver of indemnity rights against punitive damages caused by a party who admits limited liability.