State v. Louisiana Land & Exploration Co.: Louisiana Revised Statutes Section 30:29 and Its Effect on the Amount of Remediation Damages Available to Plaintiffs

• Author: Julia L. Taylor
• Position: J.D./D.C.L., 2015, Paul M. Hebert Law Center, Louisiana State University.
• Pages: 581-611

State v. Louisiana Land & Exploration Co.: Louisiana

Revised Statutes Section 30:29 and Its Effect on the

Amount of Remediation Damages Available to

Plaintiffs

INTRODUCTION

Within the past decade, Louisiana has witnessed a surge in land

contamination litigation, particularly in regards to oil and gas

exploration sites.

1

These types of cases are commonly referred to

as “legacy litigation.”

2

In a typical legacy litigation case, a

landowner discovers damage to his land that was caused by either

a mineral lease on the property or by some other kind of toxic

exposure.

3

The landowner naturally wants to hold someone

responsible for the damage, and consequently the legacy litigation

begins.

The Louisiana Legislature first stepped into the legacy

litigation debate in 2005.

4

Recognizing the negative environmental

implications of land contamination, the Legislature passed a statute

that encourages property cleanup.

5

Louisiana Revised Statutes

section 30:29 requires that any damages awarded to a plaintiff for

“the evaluation or remediation of environmental damage” must be

paid into the registry of the court, rather than directly to the

plaintiff.

6

This requirement reduces the chance that a plaintiff will

keep the money for personal use instead of using it for the reason it

was awarded.

Copyright 2014, by JULIA L. TAYLOR.

1. See Loulan Pitre, Jr., Six Years Later: Louisiana Legacy Lawsuits Since

Act 312, 1 LSU J. ENERGY L. & RES. 93, 94 (2012) [hereinafter Pitre, Six Years

Later].

2. Id.

3. In some circumstances, it is difficult to determine whether the landowner

caused the damage or if it was the fault of a lessee. See Jim Magill, Louisiana

Ruling Keeps Chevron in Lawsuit, PLATTS OILGRAM NEWS (Feb. 5, 2013),

http://www.terraconsultores.com/descargas/platts-oilgram-ne ws.pdf, archived at

http://perma.cc/8HXN-AES6. Although this Note does not discuss the hardship i n

determining who caused the damage, it is an interesting question that should

perhaps be addressed by another article.

4. See Act No. 312, 2006 La. Acts 1472.

5. See LA. REV. STAT. ANN. § 30:29(A) (Supp. 2014).

6. Id. § 30:29(D), (I)(1)–(2) (“‘Environmental damage’ shall mean any

actual or potential impact, damage, or injury to environmental media caused by

contamination resulting from activities associated with oilfield sites or

exploration and production sites. Environmental media shall include but not be

limited to soil, surface water, ground water, or sediment. ‘Evaluation or

remediation’ shall include but not be limited to investigation, testing,

monitoring, containment, prevention, or abatement.”).

582 LOUISIANA LAW REVIEW [Vol. 75

Furthermore, the statute requires the Louisiana Department of

Natural Resources (DNR) to play a direct role in determining the

amount of remediation damages.

7

The fact-finder first determines

liability and damages, as is the case in typical litigation. After the

fact-finder has determined damages, each party submits cleanup

plans to DNR, which then adopts its own number—a number

statutorily required under section 30:29 and based on the evidence

submitted by the parties.

8

This number is part of a comprehensive

cleanup plan called “the most feasible plan.”

9

The plan is then

submitted back to the trial court, which oversees the distribution of

the money and ensures that it is used to remediate the land.

10

Although section 30:29 was passed with the stated intent of

protecting Louisiana’s resources, the language of the statute is

dense and ambiguous.

11

The Louisiana Supreme Court has dealt

with the statute a few times, but each time it has failed to clarify it

in a way that guarantees uniform interpretation among the lower

courts.

12

Most recently in State v. Louisiana Land & Exploration

Co., the Louisiana Supreme Court grappled with section 30:29 in

determining the total amount of damages available to a plaintiff.

13

The Court addressed the issue of how to allocate the difference

between a fact-finder’s determination of remediation damages and

DNR’s statutorily required determination of remediation damages

when the fact-finder’s determination is higher.

14

The majority in

Louisiana Land held that judgments for environmental land

damage are not limited to the cost of remediation as determined

under the statute’s procedure.

15

Rather, the majority held that a

landowner is entitled to recover damages in excess of DNR’s

determination as to the cost of remediation, even if the original

contract between the plaintiff-landowner and the defendant-lessee

7. See id. § 30:29(C).

8. See id.

9. Id.

10. See id. § 30:29(D)(2)–(4).

11. See id. § 30:29(A).

12. See infra Part I.D.

13. State v. La. Land & Exploration Co., 110 So. 3d 1038, 1040 (La. 2013).

14. See id. at 1054. The Court ultimately held that the landowner is entitled

to excess remediation damages “[i]f a court awards remediation damages

pursuant to an express contract provision that is a greater amount than that

ordered to be placed into the court’s registry to fund the remediation plan . . . .

Likewise, ‘any award’ for ‘additional remediation’ may be kept by the

landowner, as well.” Id.

15. Id. at 1049 (“The procedure under the Act does not prohibit the aw ard

of remediation damages for more than the amount necessary to fund the

statutorily mandated feasible plan, nor does the procedure described in the Act

intrude into the manner in which remediation damages are determined.”).