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Climate Change Jurisdiction: U.S. Court of Appeals for the Ninth Circuit Kicks Climate Change Case Back to State Court

Amidst historically low oil prices and economic shutdowns, fossil fuel companies continue to defend against lawsuits brought by state and local governments claiming climate-change related damages.  In two companion cases, a panel of the United States Court of Appeals for the Ninth Circuit decided whether a federal district court could properly exercise jurisdiction over climate … Continue Reading

OSHA Addresses Reporting COVID-19 Cases as Job-Related and In-Person Workplace Inspections

On May 19, 2020, the Occupational Safety and Health Administration (“OSHA”) issued two noteworthy enforcement memos. The first memo announced the reversal of OSHA’s April 10, 2020 policy that limited the requirement to track on-the-job cases of COVID-19 to health-care facilities, emergency response providers, and corrections facilities. The new policy, which goes into effect on May 26, … Continue Reading

The Supreme Court Looks for a Middle Ground to Determine When Clean Water Act Permit is Required for Discharges to Groundwater

On April 23, the Supreme Court of the United States issued an opinion in County of Maui, Hawaii v. Hawaii Wildlife Fund, et al., where the Court held that, in limited circumstances, a party discharging pollutants into groundwater that ultimately end up in navigable waters will need a permit under the Clean Water Act.… Continue Reading

ARCO v. Christian: Supreme Court Allows State Law Claims for Restoration Damages in Excess of EPA Superfund Cleanup, but EPA Must Approve Any Additional Remedial Action

This week, in a split 7-2 opinion authored by Chief Justice Roberts, the Supreme Court held that Montana state law claims brought by private landowners against Atlantic Richfield Company (“ARCO”) for alleged impacts from the Anaconda Smelter Superfund site are not preempted by CERCLA and are not precluded by ARCO’s settlement of EPA’s CERCLA claims; … Continue Reading

Commissioner of Conservation Issues Letter Addressing Emergency Measures to Help Louisiana Oil and Gas Industry

The impacts of COVID-19 have rapidly swept across the country and the globe. Coupled with the recent decline in oil and gas prices, many operators are left scrambling in an attempt to navigate unprecedented circumstances.  With shutdowns and stay-at-home orders in place and regulatory deadlines looming, Louisiana operators are looking for guidance from regulators on … Continue Reading

Federal Offshore Pipeline Decommissioning in BOEM Significant Sediment Resource Areas

In recent years, there has been an increase in the number of denials of applications to decommission offshore pipelines in place in a departure from the Bureau of Safety and Environmental Enforcement’s (“BSEE”) longstanding practices.  The denials are accompanied by an order from BSEE to decommission the pipelines by removal, with reference to Notice to … Continue Reading

U.S. Climate Change Litigation: 2020 Update

Since the initiation of climate change litigation several years ago, various state governments and interest groups have filed lawsuits against fossil fuel companies and governing authorities.  The current landscape consists of (1) two lawsuits brought by state governments against an oil and gas company alleging investor fraud; (2) numerous cities, counties, and other local governments … Continue Reading

Second Remand Order in Coastal Zone Management Cases Pending Before Fifth Circuit

In May 2018, oil and gas industry defendants removed a docket of 42 cases alleging violations of Louisiana’s coastal zone management laws to federal court in the Eastern and Western Districts of Louisiana (“CZM cases”).  One year later, the Eastern District granted motions to remand filed by Plaquemines Parish and the State of Louisiana in … Continue Reading

SCOTUS Decides Dutra Group v. Batterton

Today the United States Supreme Court issued its decision in this landmark case concerning punitive damages.  The six justices in the majority opinion reversed the Ninth Circuit and resolved a circuit split on this issue.  The question presented was whether punitive damages may be awarded to a Jones Act seaman in a personal injury suit … Continue Reading

Motion to Remand Granted in One Coastal Zone Management Act Case But Federal Appellate Options Remain Viable

On May 28, 2019, United States District Judge Martin Feldman issued a sixty-four page Order and Reasons which granted motions to remand filed by Plaquemines Parish and the State of Louisiana in The Parish of Plaquemines v. Riverwood Production Co., et al.  That case is one of forty-two Coastal Zone Management Act (“CZMA”) cases that … Continue Reading

EPA’s New Audit Program for New Owners of Upstream Oil and Natural Gas Facilities

On March 29, 2019, the U.S. Environmental Protection Agency (EPA) announced it had finalized a voluntary disclosure program for new owners of upstream oil and natural gas exploration and production facilities. Under the program, EPA will not impose any civil penalties on new owners of these facilities (which include well sites and associated tanks and … Continue Reading

Alaska District Court Vacates Trump Executive Order On Offshore Leasing

On March 29, 2019, Alaska Federal District Court Judge Sharon Gleason granted summary judgment in favor of plaintiff environmental groups in League of Conservation Voters v. Trump, 3:17-00101.  The case stems from Executive Orders issued under the Obama Administration in 2015 and 2016 which withdrew certain areas in the Arctic and Atlantic regions from exploration … Continue Reading

City of New Orleans Sues Oil and Gas Companies for Allegedly Damaging Coastal Wetlands

On Friday, March 29, 2019, the City of New Orleans filed a lawsuit in Civil District Court against eleven oil and gas companies seeking damages for alleged harm to Louisiana’s coastal wetlands. Introducing its lawsuit with statements that “New Orleans is imperiled” and its “people are in danger,” the City contends that the defendants’ failure … Continue Reading

Louisiana Fifth Circuit Weighs in on Proper Application of Prescription and Contra Non in NORM Litigation

In a case sure to be used as a sword by many defendants in the prevalent NORM (naturally occurring radioactive material) litigation in Louisiana and elsewhere, Patricia Lennie, et al. v. Exxon Mobil Corporation, et al., the Louisiana Fifth Circuit Court of Appeal concluded that plaintiffs’ survival and wrongful death actions were prescribed when plaintiffs … Continue Reading

Louisiana’s Third Circuit (Again) Affirms the Applicability of the Subsequent Purchaser Doctrine to Mineral Leases

While oil and gas company-defendants—and several courts alike—have deemed the applicability of the subsequent purchaser doctrine to mineral leases a settled issue of law, plaintiff-landowners have continued to argue otherwise.  In a unanimous opinion issued July 18, 2018 in Grace Ranch, LLC v. BP America Production Company, et al., the Third Circuit not only provides … Continue Reading

The Coastal Zone Management Act Litigation Removed to Federal Court (Again)

On or about May 23, 2018, several Defendants in the Coastal Zone Management Act (“CZMA”) Litigation filed Notices of Removal in 42 lawsuits filed against 212 oil and gas companies by six different parishes (Plaquemines, Jefferson, Cameron, Vermilion, St. Bernard, and St. John the Baptist), removing the cases to federal court.  The timing of the … Continue Reading

Third Circuit Issues Long-Awaited Ruling in OPA Liability Case

On March 29, 2018, the United States Court of Appeals for the Third Circuit issued its ruling in In re: Petition of Frescati Shipping Co., Ltd., as Owner of the M/T ATHOS I, Nos. 16-3552, 16-3867 & 16-3868 (3d Cir. Mar. 29, 2018).  ATHOS I had its genesis in a 2004 vessel allision and oil … Continue Reading

The Dusky Gopher Frog is Heading to the United States Supreme Court

In July 2017, Weyerhaeuser Company, a Louisiana landowner and timber lessee, filed a Petition for a writ of certiorari asking the United States Supreme Court to overturn the U.S. Fish and Wildlife Service’s (“FWS”) designation of private land in St. Tammany Parish, Louisiana as “critical habitat” for the endangered dusky gopher frog.  The FWS made … Continue Reading

U.S. Fifth Circuit Affirms $20 Million Judgment Against Barge Owner as Responsible Party Under the Oil Pollution Act of 1990

Case:    United States v. American Commercial Lines, L.L.C., No. 16-31150, ___ F.3d ___ (5th Cir. 11/7/17). Factual Background In July of 2008, nearly 300,000 gallons of oil spilled into the Mississippi River in New Orleans when a tugboat towing an oil-filled barge veered across the river into the path of an ocean-going tanker.  American … Continue Reading

Third Circuit Affirms Trial Court’s Refusal to Adopt DNR’s Most Feasible Plan in Sweet Lake Land & Oil Co. v. Oleum Operating Company

The Louisiana Legislature passed “Act 312,” La. R.S. 30:29, in 2006 to provide a procedure for ensuring that amounts awarded to remediate environmental damage are actually spent on remediation.  Act 312 sets forth a multi-step scheme that is triggered once a party is found responsible for environmental damage, culminating with Department of Natural Resources (“DNR”) … Continue Reading

Plaintiffs and Defendants Jointly Choose First Cases for Trial in Plaquemines Parish Coastal Zone Management Act Litigation

The first five Plaquemines Parish Coastal Zone Management Act (“CZMA”) cases to be set for trial have been chosen. The Plaintiffs selected Parish of Plaquemines v. Rozel Operating Company, et al., Parish of Plaquemines v. ConocoPhillips Company, et al., and Parish of Plaquemines v. Hilcorp Energy Company, et al.  The Defendants picked Parish of Plaquemines v. … Continue Reading

The Fifth Circuit Rejects the DOJ’s Attempt to Charge Black Elk Contractors with OCSLA Felonies

In the aftermath of a 2012 platform explosion in the Gulf of Mexico in which three workers were killed, the Department of Justice ultimately indicted the contractors who supervised the work (along with the lease holder, Black Elk Energy Offshore Operations, LLC) with violating the Outer Continental Shelf Land Act (“OCSLA”), a felony carrying a … Continue Reading

Federal Court Finds A Continuing Duty Under Louisiana Law To Prevent The Erosion of Pipeline Canals

A recent decision from the Eastern District of Louisiana provides a mixed bag for pipeline companies or others whose operations involve canals.  Significantly, the decision from Judge Milazzo holds that during the existence of a right-of-way/servitude, Louisiana servitude law imposes a continuing duty to prevent canals from expanding and widening over time, unless unambiguous contractual … Continue Reading

Dusky Gopher Frog’s Louisiana Critical Habitat Spawns U.S. Supreme Court Writ

A group of Louisiana landowners, Weyerhaeuser Company, and the Pacific Legal Foundation filed Petitions for Writs of Certiorari this month asking the U.S. Supreme Court to overturn the U.S. Fish and Wildlife Service’s (USFWS) decision to designate 1,544 acres of private land in St. Tammany Parish, Louisiana as critical habitat for the endangered dusky gopher … Continue Reading
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