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
 
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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.”).

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