Articles Posted in Environmental Law

by
The United States Court of Appeals for the Fifth Circuit asked the Louisiana Supreme Court: “What is the meaning of ‘good faith’ as that term is used in the Louisiana Environmental Quality Act, Louisiana Revised Statutes 30:2027?” Eric Borcik was employed by Crosby Tugs, L.L.C. (Crosby) as a deckhand. In July 2010, he was transferred to the M/V NELDA FAYE. Borcik claims that the lead captain of the NELDA FAYE ordered him to dump waste oil into navigable waters and otherwise violate environmental laws over a period of three years. He further claims that he followed these orders. In May 2013, Borcik emailed Crosby’s Chief Administrative Officer (CAO). His email communicated that he had “concerns” that he stated “have all fallen on deaf ears” and expressed “fear [of] some form of retaliation.” He later met with the CAO in person. Borcik was transferred to another boat and later fired. Borcik contends he was fired in retaliation for his complaints; Crosby contends that Borcik was fired for insubordination. Borcik sued Crosby in October 2013, alleging retaliatory termination in violation of Louisiana Environmental Quality Act (“LEQA”), specifically claiming that Crosby violated the Louisiana Environmental Whistleblower Act. The Supreme Court answered the certified question: the term “good faith,” as used in R.S. 30:2027, means an employee is acting with an honest belief that a violation of an environmental law, rule, or regulation occurred. View "Borcik v. Crosby Tugs, LLC" on Justia Law

by
Nelson Industrial Steam Company (“NISCO”) was in the business of generating electric power in Lake Charles. In order to comply with state and federal environmental regulations, NISCO introduces limestone into its power generation process; the limestone acts as a “scrubbing agent.” The limestone chemically reacts with sulfur to make ash, which NISCO then sells to LA Ash, for a profit of roughly $6.8 million annually. LA Ash sells the ash to its customers for varying commercial purposes, including roads, construction projects, environmental remediation, etc. NISCO appealed when taxes were collected on its purchase of limestone over four tax periods. NISCO claimed its purchase of limestone was subject to the “further processing exclusion” of La. R.S. 47:301(10)(c)(i)(aa), which narrowed the scope of taxable sales. The Louisiana Supreme Court granted NISCO’s writ application to determine the taxability of the limestone. The trial court ruled in the Tax Collectors' favor. After its review, the Supreme Court found that NISCO’s by-product of ash was the appropriate end product to analyze for purposes of determining the “further processing exclusion’s” applicability to the purchase of limestone. Moreover, under a proper “purpose” test, the third prong of the three-part inquiry enunciated in "International Paper v. Bridges," (972 So.2d 1121(2008)) was satisfied, "as evidenced by NISCO’s choice of manufacturing process and technology, its contractual language utilized in its purchasing of the limestone, and its subsequent marketing and sale of the ash." Therefore the Court reversed the trial court and ruled in favor of NISCO. View "Bridges v. Nelson Industrial Steam Co." on Justia Law

by
As a consequence of a June 2006 storm, the stormwater drainage and storage system (including the wastewater treatment facility) at the Lake Charles refinery of Defendant CITGO Petroleum Company (CITGO), was filled beyond available capacity and overflowed, resulting in a major oil spill. Over 21 million gallons of waste, including 17 million gallons of contaminated wastewater and 4.2 million gallons of slop oil, escaped from the two existing wastewater storage tanks into an area around the tanks which was surrounded by levees or dikes. The oil spill, which was described at trial as "major" and "catastrophic," eventually contaminated over 100 miles of shoreline along the Calcasieu River, and required several months to clean up. Fourteen plaintiffs, employees of Ron Williams Construction (RWC) working at the Calcasieu Refining Company (CRC) south of the CITGO refinery, filed suit against CITGO and R&R Construction, Inc. (R&R) alleging various injuries due to their exposure to noxious gases emanating from the spill. CITGO and R&R stipulated that they were liable for the spill and agreed to pay plaintiffs for all their compensatory damages assessed to CITGO and R&R. After a two week bench trial, the district court ruled that plaintiffs had proved their injuries were caused by CITGO's admitted negligence in allowing the spill. The court of appeal affirmed, holding that the district court's finding the spill caused plaintiffs' injuries was not an abuse of discretion. The Supreme Court granted review of this case to determine whether the courts below erred as to the allocation of fault, in awarding damages for fear of future injury, and in awarding punitive damages. In sum, the Court held that Louisiana's conflict of laws statutes did not provide for the application of the punitive damages laws of Texas or Oklahoma under the facts of this case, that plaintiffs proved that their damages were caused by their exposure to toxic chemicals contained in the oil spill, that plaintiffs are entitled to damages for fear of contracting cancer, and that CITGO did not produce at the hearing on summary judgment factual support sufficient to establish that it would be able to satisfy its evidentiary burden of proof at trial. The Court affirmed in part, and reversed in part. The case was remanded for further proceedings. View "Arabie v. CITGO Petroleum Corp." on Justia Law

by
The Supreme Court granted certiorari in this lawsuit to determine whether the lower courts correctly applied the standards for analyzing class action certification set forth in La. C.C.P. arts. 591, et seq. In February 2003, five individuals residing and owning property in Alexandria, Louisiana, in the vicinity of the Dura-Wood Treating Company, filed on their own behalf and as representatives of a class of persons who allegedly suffered damages as a result of operations at the wood-treating facility, a "Class Action Petition for Damages." The petition, which was amended several times, alleged that the Dura-Wood facility was primarily engaged in the production of creosote-treated railroad ties, and that significant quantities of creosote sludge were deposited into the canal and ponds. The appellate court ultimately found no reversible error in the district court’s judgment certifying the class, although it candidly acknowledged “a number of potential problems with the class as it had been defined." After reviewing the record and the applicable law, the Supreme Court found the lower courts erred in concluding that common questions of law or fact existed, that questions of law or fact common to members of the class predominated over any questions affecting only individual members, and that a class action was superior to other available methods for a fair and efficient adjudication of this matter. Accordingly, the Court reversed the judgment of the district court which granted Plaintiffs' motion for class certification. View "Price v. Martin" on Justia Law

by
The issue before the Supreme Court arose from the sale of land sold to Plaintiff Eagle Pipe and Supply, Inc. who later discovered the land was allegedly contaminated with radioactive material. Plaintiff sued the former landowners and the oil and trucking companies allegedly responsible for the contamination. The oil and trucking companies moved to dismiss for failing to state a claim upon which relief could be granted. The appellate court initially affirmed the dismissal, but reversed its own decision after rehearing. The Supreme Court granted certiorari to determine whether a subsequent purchaser of property has the right to sue a third party for non-apparent property damage inflicted before the property sells absent an assignment or subrogation to that right. After review, the Court found that the "fundamentals of Louisiana property law compel the conclusion" that such a right of action is not permitted. "Instead, the subsequent purchaser has the right to seek rescission of the sale, reduction of the purchase price or other legal remedies." The Court found that the appellate court erred in reversing itself on rehearing, and reinstated the ruling of the district court. View "Eagle Pipe & Supply, Inc. v. Amerada Hess Corp." on Justia Law