Environmental Issues in Louisiana: Post-Katrina Michael A. Chernekoff Jones Walker April 11, 2007 mchernekoff@joneswalker.com

Environmental Issues Oil Spills Related to Katrina Cleaning up New Orleans and adjoining areas Hurricane Litigation Oilfield Restoration issues Wetlands Permitting Industry Expansions New Governor

Oil Spills Related to Katrina

Impacts

Spills

Oil Spills Related to Katrina US Coast Guard reported (October 2005): 6 Major spills (> 100,000 gallons) 3 Medium Spills (10,000 to 100,000 gallons) 7.7 million gallons Clean-ups completed NRDA Claims?

Oil Spill Issues Dealing with Unified Command “Act of God” and Claims against the Fund “unanticipated” “sole cause” Subpoenas to Responsible Parties Future Storm Planning and Preparations

Cleaning Up

Debris

Debris

Debris

Cleaning Up: Issues LDEQ Emergency Orders LDEQ Debris Plan allow for landfills to handle greater volume of waste pert day than originally permitted expanded the definition of C&D debris to include items not originally allowed in the facilities’ permits allowed for temporary debris handling, staging and disposal sites LDEQ Debris Plan Landfill Battles Illegal Dumping Future Landfill Capacity Issues

Demolition Status

Demolition Status

LDEQ Debris Plan and Landfill Battles

LDEQ Debris Plan and Landfill Battles “Hurricane Zone” Transportation Issues Transfer and Staging Sites Formosan Termite Quarantine Using Existing Landfills v. Re-opening Closed Landfills “Enhanced” C&D Landfills Expansion of Old Landfills Capacity for Future?

Illegal Dumping

Litigation Murphy Oil Spill Oystermen/fishermen lawsuits Oilfield canals litigation Landowners property damage litigation (oil spill cases) COE/Levee litigation Residential/Commercial Insurance litigation

Oilfield Restoration Issues Corbello Decision (2003) LRS 30: 2015.1 (2003) Addressed damages for “usable groundwater” Deposit damages into court registry to pay for remediation

Oilfield Restoration Issues Act 312 (2006) Addresses “environmental damage” to E&P sites LDNR develops remediation plan after hearing Court can change Responsible party can be ordered to fund remediation plan Constitutional Challenge to Act 312 LDNR promulgating Act 312 regulations

Wetlands Permitting O’Reilly Decision (2007 U.S. App. Lexis 1630 (5th Cir. 2007)) Corps of Engineers must consider and explain its consideration of "cumulative impacts“ in determining if an EA or an EIS is needed. Corps’ response: Created Task Force to redesign its decision documents. What does this mean? More information will be needed from 404 permit applicants. Challenges to permits may be easier.

Industry Expansions Refinery Expansions New Industry Projects German Steel Mill project (Greenfield)??? Impact on future Air permitting?

New Governor Gubernatorial election: Fall 2007 Governor Blanco NOT running for re-election New leadership for LDEQ and LDNR likely

Conclusion Uncertain future Much could depend on: New leadership Federal spending Energy sector