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 and development under the offshore oil and gas leasing program. President Trump issued an Executive Order in 2017 which revoked the Obama withdrawals. The Court’s summary judgment ruling vacated certain portions of the 2017 Trump Executive Order and concluded that the prior Obama Orders would remain in place. In effect, the ruling removes the areas in the Arctic and the Atlantic covered in the Obama Orders from the five-year leasing program proposed by the Trump Administration.
Continue Reading Alaska District Court Vacates Trump Executive Order On Offshore Leasing
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 to maintain access canals, spoil banks, and earthen pits created in the course of exploration and production has destroyed the coastal zone. The City’s allegations mirror those levied in recent years by the parishes of Plaquemines, Jefferson, and St. Bernard, among others: that the defendants’ activities constitute coastal “uses” under the Louisiana State and Local Coastal Resources Management Act (“SLCRMA”) and that they violate coastal use permits issued pursuant to that statute. The City has requested a trial by jury, from which it seeks damages, “restoration costs,” restoration of “disturbed areas,” sanctions, costs, attorneys’ fees, and/or declaratory and injunctive relief.
Continue Reading City of New Orleans Sues Oil and Gas Companies for Allegedly Damaging Coastal Wetlands
New U.S. Supreme Court Decisions Clarify the Courts’ Authority to Compel Arbitration
Commercial and employment agreements often include provisions requiring arbitration of disputes between the parties. Some of these agreements contain “delegation clauses” requiring the arbitrator (as opposed to a court) to decide whether the dispute is subject to arbitration. Despite such provisions, one party may sue the other because it perceives an advantage to proceeding in court or wants to test the outer limits of the arbitration provision. The first battle in these suits is over who—the court or an arbitrator—decides whether the dispute must be arbitrated. In unanimous decisions issued over the last week, the Supreme Court addressed two scenarios where the parties fought over this question, despite having delegated questions of “arbitrability” to an arbitrator. Read together, the Court’s decisions clarify that a court should first decide whether the Federal Arbitration Act (“FAA”) applies to the parties’ agreement. If so, the court must honor the delegation clause and refer the matter to arbitration.Continue Reading New U.S. Supreme Court Decisions Clarify the Courts’ Authority to Compel Arbitration
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 brought suit almost four years after the diagnosis of cancer and subsequent death of their husband/father and failed to inquire as to the cause of illness and death. In doing so, the Fifth Circuit affirmed the judgment of the district court dismissing the survival and wrongful death claims of plaintiffs on an exception of prescription.
Continue Reading Louisiana Fifth Circuit Weighs in on Proper Application of Prescription and Contra Non in NORM Litigation
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 yet another example of the uniform application of the doctrine in cases involving mineral rights under Louisiana law, but expressly and thoroughly rejects the numerous arguments on which plaintiffs-landowners have continued to rely.
Continue Reading Louisiana’s Third Circuit (Again) Affirms the Applicability of the Subsequent Purchaser Doctrine to Mineral Leases
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 removal was based on Plaintiffs’ expert report, which was produced on April 30, 2018. In their Notices of Removal, Defendants allege that Plaintiffs’ expert report purportedly identifies state “permitting violations,” which revealed for the first time in the CZMA Litigation that Plaintiffs’ claims primarily attack activities undertaken before the state permitting law at issue was effective and that were instead subject to extensive and exclusive federal direction, control, and regulation.
Continue Reading The Coastal Zone Management Act Litigation Removed to Federal Court (Again)
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 spill on the Delaware River between New Jersey and Pennsylvania. The decision has particular relevance to the types of defenses that may be maintained against reimbursement claims brought by the United States Oil Spill Liability Trust Fund (OSLTF) to recover funds expended in responding to an oil spill.
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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 this “critical habitat” designation under the Endangered Species Act. Weyerhaeuser Company argues that the property has not been a habitat for the gopher frog since the 1960s, the land lacks certain habitat features for the gopher frog to survive in the area, and the designation drastically reduces the value of the property by preventing certain commercial development projects. (A prior article posted on The Energy Law Blog discussing the Petitioner’s writ of certiorari is available here).
Continue Reading The Dusky Gopher Frog is Heading to the United States Supreme Court
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 Commercial Lines (“ACL”) owned the tug MEL OLIVER, and bareboat chartered its tug to DRD Towing. DRD then operated the MEL OLIVER under a time charter to ACL. At the time of the collision, the MEL OLIVER, which was pushing ACL’s barge DM-932 fully laden with oil, was operating without a captain who had effectively abandoned the vessel several days earlier. The Steersman left in charge was allegedly sound asleep at the wheel at the time of the collision as he had been working for nearly 36 straight hours. The TINTOMARA, a tanker, collided with the DM-932, causing the barge to break away and ultimately sink in the Mississippi River resulting in the spill of approximately 300,000 gallons of oil into the River. As owner of the leaking barge, ACL was deemed the responsible party under the Oil Pollution Act of 1990 (“OPA ’90”).
Continue Reading U.S. Fifth Circuit Affirms $20 Million Judgment Against Barge Owner as Responsible Party Under the Oil Pollution Act of 1990
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”) approving a plan “to evaluate or remediate” the environmental damage. La. R.S. 30:29(C)(2)(a). Thereafter the trial court “shall adopt the plan approved by the [DNR] unless another party proves by a preponderance of the evidence that another plan is more feasible,” id. 30:29(C)(5).
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