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On October 6, 2020, the Louisiana Supreme Court granted a writ application filed by UNOCAL in State of Louisiana, et al. v. Louisiana Land & Exploration Co., et al. This application sought review of the Louisiana Third Circuit’s decision that affirmed the Vermilion Parish School Board’s authority to sue on behalf of the state, rejected a prescription defense on the basis of prescription immunity under the Louisiana Constitution, and found that “environmental damage” as defined under Act 312 is sufficient to trigger a breach of contract claim. A detailed summary of the Third Circuit’s decision can be found here.
Continue Reading Louisiana Supreme Court Grants UNOCAL’s Writ Application from Third Circuit Decision Involving Prescription and Breach of Contract in Act 312 Case

The Bureau of Ocean Energy Management (“BOEM”) and the Bureau of Safety and Environmental Enforcement (“BSEE”) recently issued a proposed rule on Risk Management, Financial Assurance and Loss Prevention (“Proposed Rule”), which was published in the Federal Register on October 16, 2020 and is now open for public comment. The Proposed Rule is the result of an extended effort by the Department of Interior, through its subagencies BOEM and BSEE to “streamline its evaluation criteria for determining whether oil, gas and sulfur lessees, right-of-use and easement (RUE) grant holders, and pipeline right-of-way grant holders may be required to provide bonds or other security above the prescribed amounts for base bonds to ensure compliance with their Outer Continental Shelf (OCS) obligations,” primarily decommissioning obligations. The path to this Proposed Rule has been long and winding, beginning in 2014 with BOEM resisting making changes through formal notice and comment rulemaking pursuant to the Administrative Procedures Act, and instead continuing to regulate this issue through Notice to Lessee (“NTL”) guidance documents. BOEM issued the last and most controversial NTL, NTL No. 2016-N01, in 2016, which created widespread industry concern, and, as a result, was never fully implemented.

Below is a summary of the current regulations and some of the more significant proposed changes.
Continue Reading Department of Interior Proposes New Financial Assurance and Decommissioning Regulations

By ratifying the 2015 Paris Agreement,[1] nations across the world made a commitment to reducing greenhouse gas emissions by at least 40% by the year 2030.  Carbon dioxide is one of the primary greenhouse gases found in the Earth’s atmosphere, accounting for 76% of global greenhouse gas emissions according to published reports.

Any effort to reduce greenhouse gas emissions will undoubtedly rely heavily on reducing the presence of carbon dioxide in the atmosphere. There are two primary ways to achieve a reduction of CO2: (1) decrease the output of carbon dioxide emissions; or (2) increase the amount of carbon dioxide that is removed from the atmosphere.Continue Reading The Future of Carbon Capture and Sequestration

Today, the United States Supreme Court granted a Petition for Certiorari filed by energy companies in Baltimore’s climate change lawsuit.  By granting the petition, the Supreme Court has agreed to review the Fourth Circuit Court of Appeals’ decision remanding the suit to state court after rejecting the energy companies’ contention that they were acting as federal officers pursuant to historical contracts with the federal government.
Continue Reading U.S. Supreme Court To Review Scope of Appellate Review for Federal Officer Removal in Climate Change Litigation

On July 15, 2020, The Third Circuit Court of Appeals issued an opinion awarding damages for a violation of due process rights against a private pipeline company.  Bayou Bridge Pipeline, LLC v. 38.00 Acres, More or Less, Located in St. Martin Parish, et al.[1] (“Bayou Bridge”) centers around the construction of a crude oil pipeline from the Clifton Ridge terminal in Lake Charles, Louisiana to a marketing hub in St. James, Louisiana.  The 38 acres relevant to this lawsuit were in St. Martin Parish and were needed for construction of the pipeline.  While Bayou Bridge Pipeline, LLC (“BBP”) identified approximately 470 heirs to the title of the property, it began construction on the Defendant Landowners’ (“Defendants” or “Landowners”) property in June 2018 prior to receiving servitude agreements from each person having ownership interest.
Continue Reading Louisiana Third Circuit Decision Imposes Damages for Due Process Violation on Private Company

Commercial Lease Considerations in the Wake of Hurricane Laura

Following disasters such as Hurricane Laura, business owners have a variety of concerns when beginning the recovery process. Chief among those concerns: what to do when your place of business has been damaged or destroyed? If you lease your place of business, or if you lease out land or buildings to other people for their businesses, this concern becomes especially important when you consider the different parties with a potential interest in the recovery—the lessor (landlord), the lessor’s insurer, the lessor’s lender, the lessee (tenant), the lessee’s insurer, and the lessee’s lender. Being familiar with your lease agreement is the key to understanding the extent of your rights and responsibilities, especially as they pertain to repair obligations, obligations regarding the payment or reimbursement of insurance deductibles, insurance recovery, and rights to termination and reduction (abatement) of rent. As an initial matter, the first question you should ask yourself is: What kind of lease agreement do I have?
Continue Reading Commercial Lease Considerations in the Wake of Hurricane Laura

Yesterday the U.S. Securities and Exchange Commission adopted final rules that amend the definitions of “accredited investor” and “qualified institutional buyer” which are central to classifying investors that may participate in private offerings and investments under federal securities laws.

A company wishing to offer or sell securities to the public must register those securities with the SEC unless an exemption from registration is available under federal securities laws.  The registration process is intended to protect investors by providing regulatory oversight and requiring the public disclosure of key information about the offered securities, but it is often lengthy and costly.  As an alternative, many companies seek to raise capital with unregistered securities pursuant to an available exemption.
Continue Reading SEC Expands Investor Classes for Unregistered Securities Transactions

In Mays v. Chevron Pipe Line Co., 2020 WL 4432025, a three-judge panel of the United States Fifth Circuit Court of Appeal held on August 3, 2020, that the Longshore Harbor Workers’ Compensation Act may apply to an injury in state territorial waters if there is a substantial nexus between an employee’s injury and his employer’s, both direct and statutory, extractive operations on the Outer Continental Shelf.
Continue Reading U.S. Fifth Circuit Clarifies “Substantial Nexus” Test for LHWCA

One of the major outcomes of the 2020 Louisiana Legislative session was the passage of tort reform legislation that supporters argue will lower insurance rates and change the state’s notoriously litigious environment. The Civil Justice Reform Act of 2020, House Bill 57 (“HB57”) introduces a number of key changes:

  • Allows jury trials if damages sought exceed $10,000 (the prior rule required $50,000 in damages);
  • Revised the controversial “collateral source rule”;
  • Repealed the limitation on presenting evidence of a plaintiff’s failure to wear a seat belt in a car accident; and
  • Limits the discussion of a party’s insurance coverage before a jury except (with limited exceptions).

Continue Reading Louisiana Governor Signs 2020 Tort Reform Legislation

On June 19, 2020, the Internal Revenue Service (the “IRS”) issued Notice 2020-50 which expands the categories of individuals eligible for coronavirus-related distributions (“CRDs”), loans, and loan repayment suspensions as well as resolves some of the issues that were concerning plan administrators and employers under the CARES Act. Under Section 2202 of the CARES Act, a qualifying CRD, which is subject to an aggregate $100,000 maximum, is: (1) not subject to the 10% additional tax on early distributions, (2) generally includible in income over a 3-year period, and (3) to the extent the distribution is eligible for tax-free rollover treatment and is contributed to an eligible retirement plan within a 3-year period, will not be included in income. Section 2202 also provides that: (1) for loans made during on or after March 27, 2020 (the date of enactment of the CARES Act) and before September 23, 2020, the limit on loans from an eligible retirement plan is raised to the lesser of $100,000 (reduced by the excess of outstanding loans) or 100% of the participant’s vested accrued benefit; and (2) for loans with outstanding balances on or after March 27, 2020, a one-year delay in loan repayment due dates is provided with respect to due dates occurring during the period from March 27, 2020, to December 31, 2020. For more information on these CARES Act topics see our prior newsletter here.
Continue Reading Additional Guidance for Coronavirus-Related Distributions and Loans Under the CARES Act