Is the Frequency of Louisiana Environmental Quality Act Citizen Suit Litigation Increasing?

Liskow & Lewis

In 2003, the Louisiana Supreme Court rendered its landmark decision in Corbello, et al. v. Iowa Production, et al.  Since then, Louisiana courts have seen a steady stream of “legacy litigation” claims being filed.  Legacy litigation claims generally concern alleged contamination arising from historic oil and gas operations under theories of both breach of contract and tort.  Recently, those typical types of claims have been supplemented in some legacy litigation cases with citizen suit allegations based on the Louisiana Environmental Quality Act.

The Louisiana Environmental Quality Act, Louisiana Revised Statute §§ 30:2001 et seq., was originally enacted as the Louisiana Environmental Affairs Act which became effective on January 1, 1980.  In 1983, the Louisiana Legislature created the Louisiana Department of Environmental Quality and renamed the Louisiana Environmental Affairs Act as the Louisiana Environmental Quality Act.  The purpose of the Louisiana Environmental Quality Act is twofold.  The first purpose is to maintain a healthful and safe environment in Louisiana through governmental regulation and control over the areas of water quality, air quality, solid and hazardous waste, scenic rivers and streams, and radiation.  The second is to provide comprehensive policies on a statewide basis to unify, coordinate, and implement programs to provide for the most advantageous use of the resources of the state and to preserve, protect, and enhance the quality of the environment in Louisiana.  Today, the Louisiana Environmental Quality Act contains hundreds of provisions which address the areas identified above and numerous regulations promulgated under those various provisions.

Since its inception on January 1, 1980, the Louisiana Environmental Quality Act has included a “citizen suit” provision.  That provision can be found at Louisiana Revised Statute § 30:2026.  Louisiana Revised Statute § 30:2026(A) provides: “Except as provided in Subsection B of this Section, any person having an interest, which is or may be adversely affected, may commence a civil action on his own behalf against any person whom he alleges to be in violation of this Subtitle or of the regulations promulgated hereunder.”  The Subsection B exceptions provide that no action can be commenced under Subsection A:

(1) Prior to thirty days after the plaintiff has given written notice of the violation to the secretary and to any alleged violator by certified mail, return receipt requested.

(2) If the secretary or his legal counsel has commenced and is diligently prosecuting a civil or criminal action in a court of this state to require compliance with any standard, limitation, or order; however, in any such action any person having an interest which is or may be adversely affected may intervene as a matter of right.

(3) If the alleged violator is operating under a variance and is in compliance with the terms of such variance.

(4) Against any person while such person, with respect to the same violation is:

(a) Under any order issued pursuant to this Subtitle to enforce any provision of this Subtitle.

(b) A defendant in any civil suit brought under the provisions of R.S. 30:2025.

(c) The subject of an action to assess and collect a civil penalty pursuant to R.S. 30:2025(E).

As can be seen above, Subsection A of the Louisiana Environmental Quality Act citizen suit provision is broadly written.  It allows “any person having an interest which is or may be adversely affected” to commence a civil action against “any person whom he alleges to be violation of [the Louisiana Environmental Quality Act] or of the regulations promulgated [thereunder].”  For that reason and because the Louisiana Environmental Quality Act contains numerous provisions and associated regulations, a wide variety of potential claims may be asserted against defendants under the Louisiana Environmental Quality Act’s citizen suit provision.  Additionally, the frequency of litigation under the Louisiana Environmental Quality Act’s citizen suit provision appears to be increasing.

So far, the most common types of citizen suit allegations have been those regarding the alleged discharge of contamination to groundwater.  Those allegations form the basis of alleged violations of Chapter 4 of the Louisiana Environmental Quality Act: the Louisiana Water Control Law, Louisiana Revised Statute §§ 30:2071 et seq.  However, we expect the allegations at issue in Louisiana Environmental Quality Act citizen suit litigation to evolve and broaden over time as these types of claims become more heavily litigated.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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