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Louisiana First Circuit Finds Appellate Jurisdiction Lacking, Declines to Address Merits of Appeal Involving Claims Related to Deepwater Horizon Response Operations

Louisiana First Circuit Court of Appeal again finds that it lacked jurisdiction over an appeal taken from a partial judgment that was not designated as final pursuant to Article 1915(B) of the Louisiana Code of Civil Procedure             In Constantin Land Trust v. BP America Prod. Co., et al., the Louisiana First Circuit Court of … Continue Reading

Regulating the Regulators: Supreme Court Allows Judicial Review of Clean Water Act Determinations

The United States Supreme Court recently addressed whether the United States Army Corps of Engineers’ determination that wetlands are “waters of the United States” constitutes a final agency action that is subject to judicial review under the Administrative Procedure Act in U.S. Army Corps of Engineers v. Hawkes Co., Inc., 15-290, 2016 WL 3041052 (U.S. … Continue Reading

New Judge, Same Result – $81 Million CWA Civil Penalty Appealed

U.S. District Court Judge Dee Drell (Western District, LA) recently denied a motion to alter or amend the Court’s judgment against CITGO Petroleum Corp.– allowing an $81 million judgment against the oil company to stand. The judgment is the latest in a suit the EPA filed against CITGO under the Clean Water Act for a … Continue Reading

Environmental Groups File Suit to Compel EPA to Review and Revise Oil and Gas Waste Regulations

On May 4, 2016, environmental groups sued the U.S. Environmental Protection Agency (EPA), seeking to compel EPA to “fulfill long-delayed nondiscretionary duties” under the Resource Conservation and Recovery Act (RCRA) by issuing revised regulations governing oil and gas wastes.  The complaint alleges that EPA’s regulations “are outdated, contain generic provisions that do not specifically address … Continue Reading

Fracking Scores with Two Colorado Supreme Court Opinions

Hydraulic fracturing, or “fracking,” is a hotly debated topic in many states.  In New York and Pennsylvania, anti-fracking groups have obtained a statewide ban on fracking and the allowance of local authority to regulate fracking, respectively.  Texas, however, has enacted a state law expressly preempting local authority over a number of drilling activities.  In March … Continue Reading

Louisiana Appellate Court Unanimously Dismisses Cross-Appeals in Legacy Case

Louisiana appellate court unanimously dismisses cross-appeals in legacy case, finding that the trial court improperly designated partial summary judgment rulings as final under Article 1915 of the Louisiana Code of Civil Procedure.             In Spanish Lake Restoration, LLC v. Shell Oil Company, et al., the Louisiana First Circuit Court of Appeal recently dismissed cross-appeals taken … Continue Reading

Sixth Circuit Will Not Rehear Venue Question in Clean Water Act Rule Dispute

On April 21, 2016 the United States Court of Appeals for the Sixth Circuit denied several petitions for rehearing en banc a Sixth Circuit panel decision that looked at which courts (federal district court or federal courts of appeal) have original jurisdiction to hear challenges to the EPA’s Clean Water Rule.  This recent ruling leaves … Continue Reading

Sea Change: New BOEM Proposed Rule Signals Major Shift in How Air Emissions Would Be Regulated in the OCS

In the next few days, the Bureau of Ocean Energy Management (BOEM) will publish in the Federal Register a Proposed Rule that would result in a significant change on how the agency regulates air emissions from oil and gas operations on the Outer Continental Shelf (OCS), in the Central and Western Gulf of Mexico (GOM).  … Continue Reading

Clean Power Plan: The Legal Battle Continues

The group of petitioners challenging the EPA rules imposing strict limits on carbon dioxide emissions from existing power plants filed its opening briefs on Friday, February 19.  The lawsuit, West Virginia v. EPA (D.C. Cir. No. 15-1363) is unusual because of its sheer volume.  Petitioners include thirty States, State agencies, and local government entities and … Continue Reading

Act 312: Federal Court Holds That Plaintiff Cannot Pocket “Additional Remediation Damages” Without Express Contractual Provision

On February 1, 2016, a federal district court issued a ruling in Moore v. Denbury, — F.3d — (W.D. La. 2016), with important implications for “legacy” lawsuits in Louisiana.  The court interpreted the 2014 amendments to Act 312 (La. R.S. § 30:29) to hold that “a plaintiff cannot directly recover additional remediation damages in the absence … Continue Reading

Appellate Review of Downhole Cases: The Supreme Court Repairs the Third Circuit’s Broken Manifest Error Standard in Hayes Fund for the First United Methodist Church of Welsh, LLC v. Kerr-McGee Rocky Mt., LLC, 149 So. 3d 280 (La. App. 3 Cir. 10/01/14)

The Louisiana Supreme Court recently issued a decision in a downhole damages case, reversing the Third Circuit’s misguided application of the manifest error standard of review. Hayes Fund for the First United Methodist Church of Welsh, LLC v. Kerr-McGee Rocky Mt., LLC, No. 2014-C-2592, 2015 La. LEXIS 2530 (La. 2015). The dispute arose out of … Continue Reading

Legal Update: U.S. Department of Justice Gets MARPOL Conviction

Last week, a federal jury in Mobile, Alabama, convicted a Norwegian-based shipping company of one count of conspiracy, three counts of violating the Act to Prevent Pollution from Ships (“APPS”), three counts of obstruction of justice and one count of witness tampering.  Three vessel crewmembers were convicted for obstructing justice, violating APPS, witness tampering and … Continue Reading

A Rose by Any Other Name: Texas Court of Appeals Says Nuisance “Symptoms of Discomfort” Require the Same Proof of Causation as “Disease”

In what may appropriately be called a “swing and a miss”, the Fourth Court of Appeals in San Antonio has rejected plaintiffs’ attempt to avoid the need for medical expert testimony in a toxic tort case by pleading damages for “symptoms of discomfort” instead of disease.  Cerny v. Marathon Oil Corp, et al., No. 04-14-00650-CV,  … Continue Reading

Fifth Circuit Rejects EPA’s Overreaching on CAA and MBTA

Background The U.S. Fifth Circuit Court of Appeals recently issued an opinion regarding criminal liability under environmental statutes.  United States v. Citgo Petroleum Corp., et al., No. 14-40128, 2015 U.S. App. LEXIS 15865 (5th Cir. Sept. 4, 2015).  In what may be considered a warning shot to overzealous federal prosecutors looking to obtain criminal convictions … Continue Reading

New EPA Stormwater Permit Adds More Restrictions to Allowable Wash Water Discharges

On June 16, 2015, the EPA published a notice of final permit issuance for the NPDES General Permit for Stormwater Discharges from Industrial Activities (commonly referred to as the Multi-Sector General Permit or “2015 MSGP”). Click here to see the Multi-Sector General Permit. Many permittees will understandably focus on any changes made to the specific … Continue Reading

EPA and BSEE Team Up to Resolve Offshore Environmental Violations

Recently, when there was talk about Houston-based ATP Oil and Gas’ (ATP) legal problems, it was inevitably about its bankruptcy and its effort to bring the overriding royalty interests it had conveyed back into the bankrupt estate as debt instruments. That should change now that the Department of Justice (DOJ), acting jointly on behalf of … Continue Reading

Sierra Club Asks Court to Ban Use of Legacy DOT-111 Tank Cars

As if crude producers and midstream transportation companies don’t already have enough problems trying to get crude oil from production fields to refineries thanks to inadequate pipeline infrastructure, tank car supply, rail safety concerns, and new regulations, they now also have to address a new, potentially market-busting lawsuit. In September, the Sierra Club, one of … Continue Reading

Trans Energy Settlement Shows Need for E&P Wetlands Compliance Strategy

On September 2, 2014, the Department of Justice announced a settlement in United States v. Trans Energy, Inc., No. 14-117 (N.D.W.Va.), requiring the oil and gas company to pay $3 million in civil penalties and to spend approximately $13 million to restore 15 sites in West Virginia that had been developed without dredge and fill … Continue Reading

BSEE’s Investigations and Review Unit Changes the Playing Field on the OCS

The Bureau of Safety and Environmental Enforcement’s (BSEE’s) Investigations and Review Unit (IRU) substantially enhances the civil and criminal enforcement of the Outer Continental Shelf Lands Act (OCSLA) and the regulations issued thereunder. Background In 2010, in the wake of the Deepwater Horizon oil spill, the Department of Interior renamed the Minerals Management Service (MMS) … Continue Reading

Proposed Railroad Rules May Impact Crude Oil Producers: Proposed DOT/PHMSA Oil Tank Car Rules

Prompted by concerns heightened by several recent high profile train derailments and accidents, coupled with the boom in the number of oil-carrying trains, the Obama administration, through the Pipeline and Hazardous Materials Safety Administration (PHMSA), has proposed two new sets of rules aimed at addressing the perceived risks posed by the increase in rail transportation … Continue Reading

Air Permitting Update: D.C. Circuit Decision Helps E&P Facilities

On May 30, 2014, in an unanimous decision in National Environmental Development Association’s Clean Air Project v. U.S. Environmental Protection Agency, the United States Court of Appeals for the District of Columbia Circuit vacated EPA’s policy limiting the reach of the Sixth Circuit’s decision in Summit Petroleum Corp. v. EPA. In Summit, the Sixth Circuit … Continue Reading

EPA and Army Corps of Engineers Propose Significant Revisions to Definition of “Waters of the United States”

On March 25, 2014, the Environmental Protection Agency (“EPA”) and the Army Corps of Engineers (“Corps”) jointly released a proposed rule purporting to clarify the scope of the “waters of the United States” protected under the Clean Water Act. The agencies claim that, as a result of the Supreme Court’s decision in Rapanos v. United … Continue Reading

TCEQ Updates Penalty Policy Document to Incorporate Legislative Enactments and Current Enforcement Practices

On January 6, 2014, TCEQ requested comments on a proposal to revise the agency’s penalty policy. See Revised Penalty Policy (PDF). According to TCEQ, the proposed revision to its Policy simply incorporates recent statutory changes and documents existing enforcement practices. Recent Statutory Changes House Bill 2615 (PDF) (83rd Legislature, 2013) significantly increased the administrative penalties for a … Continue Reading
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