Hopefully, the third time is the charm.
In 2006 and in 2012, Louisiana passed legislation dealing with legacy lawsuits. These bills set up a process to promote the responsible cleanup of property stemming in most cases from production completed many years ago. Despite the best of intentions, the issue of unresolved legacy lawsuits remains a unique phenomenon to Louisiana and continues to generate more headlines and paydays than actual cleanups. The time is now for us to pass legislation that will finally help implement the vision laid out by those two previous legislative efforts.
Senator Robert Adley has introduced SB 667, a compromise bill to eliminate ambiguities in the law that has resulted in years of protracted and very expensive litigation. Unfortunately, ambiguity is a necessity for any entrepreneurial trial lawyer with a contingency fee contract in hand. Ambiguity leads to more fees, higher demands and more litigation, all of which creates leverage for larger settlements. This is the business model for legacy lawsuits that we have created in Louisiana, and we have allowed it to take priority over cleaning up the environment. Nothing will change until we make the law crystal clear.
Under Senate Bill 667, a landowner with an environmental claim is entitled to obtain (1) a cleanup to regulatory standards, (2) a cleanup to express contractual standards, (3) any additional cleanup caused by unreasonable and excessive operations, and (4) all other, non-cleanup, damages. Why, you ask, would anyone oppose this scope of remedies?
The answer is in the ambiguity of current law relating to when and under what circumstances a plaintiff may recover damages above those needed for a regulatory cleanup. The difference between a regulatory cleanup and an “original condition” cleanup can mean tens of millions of dollars, though rarely is any property remediated above regulatory standards. The cost is simply prohibitive when compared to the use of the property. As it currently stands, the law requires that an award for a regulatory cleanup be used to restore the property, but damages above that amount are usually just pocketed. This has created a legacy lawsuit lottery.
Senate Bill 667 targets this legacy lawsuit lottery by eliminating the ambiguity that has been hotly disputed since 2006, when the Legislature created a procedure under “Act 312” for environmental claims. It does so in a way that fairly protects the rights of a landowner to obtain a cleanup to regulatory standards, as well as to recover for all other actual damages caused by a defendant’s misconduct, whether based on a contract, the mineral code, or in tort law.
This fair and just process will rise above the lawsuits and lead to remediation. It is why many of the landowners around the state support the bill. The grandstanding and fear mongering that has dominated this debate for years will continue, but this legislation, Senate Bill 667, can become the law that finally removes the ambiguity that we have tolerated for far too long.
It is time that we recall why we even started this discussion back in 2006 and why we continued that dialogue in 2012. Let us ask ourselves why other states have never really struggled with this issue like we have. Let us remind ourselves that responsible remediation is the goal, and always has been the goal, not promoting litigation, and encouraging a payday for a select few.
This legislative session, let us pass the legislation needed to finally put this legacy lawsuit lottery behind us and instead fulfill the real legacy we intended to set back in 1996 and in 2012.
Trust me, the third time just might be the charm.