LOGA Industry Report - Fall 2008 - (Page 20)

feasible.” La. Rev. Stat. §§ 30:29(D) and (F). Sixth, the act allows the landowner and the state to recover attorney and expert fees, as well as costs from the responsible party or parties. La. Rev. Stat. § 30:29(E). The plaintiff in M.J. Farms asserted that it was not obligated to comply with Act 312, arguing that Act 312 did not apply to its claims and that Act 312 was unconstitutional. The District Court did not address the claim that Act 312 did not apply to the plaintiff’s claims, but issued a judgment ruling that Act 312 was unconstitutional. Upon a direct appeal to the Louisiana Supreme Court by the state of Louisiana and the oil and gas industry defendants, the plaintiff again argued that Act 312 did not apply to its case and, alternatively, that Act 312 is unconstitutional. The Louisiana Supreme Court essentially rejected all of plaintiff’s arguments and upheld the applicability and constitutionality of Act 312. The Louisiana Supreme Court’s opinion in M.J. Farms answered the fundamental question regarding the constitutionality of Act 312. However, the opinion, while lengthy, will not put to rest litigation and argument concerning the scope and application of Act 312. For example, still unsettled is the trial procedure in Act 312 cases. Defendants have generally argued for a “two-step” court procedure in which the existence of environmental damage and responsible parties are initially determined. Then the matter is referred to the Ofﬁce of Conservation for proceedings to determine a recommended remediation plan, before the trial of any other claims by the plaintiffs. Plaintiffs, on the other hand, have argued for a full trial on the merits before a referral to the Ofﬁce of Conservation, unless a responsible party admits the existence of environmental damage. The courts of appeal that have ruled on this issue have largely interpreted Act 312 in the manner favored by the plaintiffs. Also at issue is the scope of claims covered by Act 312. Language in the Louisiana Supreme Court opinion in M.J. Farms has precipitated discussion of whether, and how, Act 312 applies when there exist contractual claims for remediation in excess of regulatory requirements. This issue has prompted a motion for reconsideration of the Louisiana Supreme Court opinion, ironically by the winning side, in an effort to clarify this point. Loulan Pitre, Jr. is a partner in the Gordon Arata law ﬁrm. He is a graduate of Harvard Law School and former member of the Louisiana House of Representatives. Oil and gas litigation comprises the bulk of hislaw practice. A signiﬁcant part of his practice is devoted to defending “legacy” claims by landowners alleging inadequate clean-up of oil and gas exploration and production sites. Pitre has given numerous presentations about legacy litigation, particularly issues relating to Act 312 of 2006 and its constitutionality, to the Louisiana Mineral Law Institute, the Tulane Environmental Law Seminar and industry groups. He has also been published often on the subject, including “Legacy Litigation and Act 312 of 2006,” published in the Tulane Environmental Law Journal. For more information, you may contact him at lpitre@gordonarata.com or view his web page at http://www.gordonarata.com/?t=3&A=281&format=xml. This article is intended as a general overview and should not be treated as a substitute for legal advice. 390595_Onebane.indd INDUSTRY REPORT | FALL 2008 | LOGA 1 7/23/08 8:10:51 AM 20 http://www.onebane.com http://www.gordonarata.com/?t=3&A=281&format=xml http://www.gordonarata.com/?t=3&A=281&format=xml

Table of Contents Feed for the Digital Edition of LOGA Industry Report - Fall 2008

LOGA Industry Report - Fall 2008 Contents Chairman's Corner President's Perspective Commissioner's Comments From the Pipeline... Supreme Court Upholds Act 312 LOGA Challenges Commission's Ad Valorem Tax Rules The Haynesville Shale - Waiting for the Gas to Come In 2008 Legislative Recap Gulf Coast Prospect Expo 2008 2nd Annual LAGCOE Open Golf Tournament Conservationist by Trade Katrina Relief Fund Update DNR Intent Natural Gas Production Surges: A Free Market At Work IPAA Washington Report Legal Updates New Members Index to Advertisers

LOGA Industry Report - Fall 2008

For optimal viewing of this digital publication, please enable JavaScript and then refresh the page. If you would like to try to load the digital publication without using Flash Player detection, please click here.