Peeling the Onion: Legacy Lawsuit Litigation and Act 779 of 2012

Abstract

The oil and gas industry has a long history in Louisiana, beginning with the first production well drilled in the state in 1901. However, the first comprehensive environmental regulations for oil and gas exploration and production in Louisiana did not appear until 1986. During the intervening years, production and exploration activity led to environmental damage of surface land and underground water sources that production companies are hesitant to remediate. Landowners, with little other alternative, are forced to seek redress for the environmental damage in the courts through litigation labeled by some, somewhat pejoratively, as legacy lawsuits. This paper discusses the statutory and jurisprudential underpinnings of environmental remediation actions for damages resulting from this production and exploration activity and examines the procedural changes made by Act 779 of the 2012 Regular Legislative Session. This act, codified as Louisiana Revised Statutes 30:29(B)(6), includes provisions that supplant the ordinary pretrial procedure that has hitherto governed these environmental remediation actions. The statute makes available a preliminary hearing procedure for defendants in such suits that amounts to an extra procedural defense. The preliminary hearing procedure is cumulative to existing procedure and enables a defendant to bifurcate the action without the plaintiff’s consent. As new law, appellate review of dismissals under the new procedure remains speculative at best. The new pretrial procedure thus represents a further shift against the property rights of plaintiffs in environmental remediation actions originating from oil and gas operations.