The Kingfish would be proud of the Louisiana Supreme Court in Louisiana Ex Rel Tureau v. BEPCO, L.P. et al. The issues were the prescriptive period applicable to a citizen suit for injunctive relief under R.S. 30:16 and whether the petition stated a cause of action under R.S. 30:14 and 30:16. The court held that a 30:16 citizen suit is not subject to liberative prescription of any duration and, insofar as the petition accused the defendants of violating Louisiana conservation laws, rules, regulations or orders, the allegations were sufficient to defeat an exception of no cause of action. The common man wins … for now.
The Court relied on the environmental protection provisions of Louisiana Constitution Art. IX, §1. It was up to the legislature to set forth procedures to ensure that damage to the environment is remediated to the standard that protects the public interest. The legislature established the Louisiana Office of Conservation to oversee and enforce conservation laws. The Commissioner of Conservation has a duty to restrain any person who is violating or threatening to violate conservation laws. Should the Commission fail to honor its duty, 30:16 authorizes any person in interest adversely affected by the violation to institute proceedings to prevent further violations. 30:16 does not allow for recovery of damages by the citizen.
Tureau’s claim was that the defendants operated numerous wells on his property or adjacent property and constructed and used unlined earthen pits that were either never closed or not closed in conformance with environmental rules and regulations, in particular Statewide Order 29:B.
On the defendants’ exception raising the objection of one-year liberative prescription under Civil Code Art. 3492, the Court noted that the State of Louisiana is the real party in interest in these cases. A request for injunctive relief differs from a suit for property damages and for the remediation of contamination, which has a one-year prescriptive period.
Statutes on the subject cannot be extended from one action to another, nor to analogous cases beyond the strict letter of the law. The Court noted that the legislature has not enacted a specific liberative prescription statute applicable to claims for injunctive relief under 30:16.
Defendants’ effort to apply the one-year prescription by analogy failed. The Court noted that citizen suits to enforce environmental regulations pertain to fundamentally different public law matters and are nothing like private tort claims. Relief is limited to injunctive relief, and a notable distinction of a 30:16 action is that the citizen is essentially acting for the Commissioner. Clear language of the statute authorizes a person in interest adversely affected by a violation of Louisiana’s environmental laws to bring suit to prevent any or further violations. The Court concluded that the statute is narrowly tailored to serve the best interest of the public and is not intended to provide a citizen with a private personal action for damages.
No cause of action
The court denied defendants’ no cause of action exception based upon the cessation of operations on the property years ago. The question is whether, considered in a light most favorable to the plaintiff, and with every doubt resolved in the plaintiff’s favor, the petition states a valid cause of action. Tureau’s petition alleged that the property had been contaminated as a result of oil and gas activities and that the defendants were currently in violation of Statewide Order 29:B and other regulations.
Defendants argument that their failure to remediate contamination to the minimum required standards does not in and of itself constitute a violation of laws, regulations, or orders goes to the merits of plaintiff’s claims and not the sufficiency of the pleading.
The failure to remedy past contamination and comply with regulations can constitute a continuing violation. The Court denied defendants’ argument that only violations involving present, ongoing conduct or threatening future conduct give rise to a citizen suit under 30:16.