Environmental Liability/Toxic Torts

What is “Tort”? – Legal Word of the Month

July 11, 2024 | by Broussard, David & Moroux

At first glance, “tort” may sound like a strange word, but it is an essential term to understand in the legal space.

In the legal realm, a “tort” refers to any wrong or injury imposed by one person or entity onto another. A tort is classified as a civil wrong (as opposed to criminal) that can be inflicted intentionally or unintentionally. Examples include assault or a car accident due to negligence.

Personal injury law is a subcategory of tort law where a person is injured due to another’s unintentional actions or negligence. Other subcategories of tort include automobile accidents, medical malpractice, and premises liability. Tort law defines the rights of individuals and the responsibility of each person to treat others with fairness in society. It ensures if you are injured due to someone’s negligence, you have a right to receive compensation.

Camp Lejeune Water Contamination Claims

September 22, 2022 | by Broussard, David & Moroux

On August 10, 2022, a comprehensive bipartisan bill was signed into law, allowing veterans, family members, and others who lived or worked at Camp Lejeune (North Carolina) between August 1, 1953 and December 31, 1987, to recover for illnesses caused by water contamination. This includes those who have already gone to the VA for benefits.

The water contamination at Camp Lejeune was caused by the waste disposal practices of an outside dry-cleaning establishment, as well as leaking underground storage tanks, waste disposal sites, and industrial area spills. The water plants were contaminated by PCE, TCE, benzene, and vinyl chloride.

To be eligible to file a claim, you or a loved one must have lived, worked, or have been otherwise present at Camp Lejeune for at least 30 days between August 1, 1953 and December 31, 1937 and developed some type of physical harm due to the base’s contaminated water. Individuals who are eligible to file a claim include veterans, civilian workers, contractors, and family members of veterans, as well as those who were in the womb at the time and exposed in utero.

Our Invaluable Marsh

January 18, 2022 | by Broussard, David & Moroux

As is well known, Louisiana is losing approximately a football field of marsh every ninety minutes. The marsh not only affords us the opportunity to hunt and fish, but it also provides the invaluable service of buffering in-land property during a hurricane.

Many landowners entered into right-of-way agreements with various pipeline companies whereby promises were made to keep the canal from exceeding the width of a specified number of feet. If a landowner’s canal has exceeded the promised width, then the landowner can ask the pipeline companies to restore his marsh in accord with the terms of the contract.

For more on this subject, read the following article, which delves into how courts have evaluated restoration-of-marsh damages. Louisianans, families, and communities must be allowed to enjoy the protection and bounty of their wetlands for generations to come.

New Safety Rules For Storage Tanks In Louisiana

December 17, 2021 | by Broussard, David & Moroux

February 28, 2021, 14-year old Zalee Gail Day-Smith was killed near her home after an oil field tank battery exploded while she was hanging out with friends. Oil field tank batteries are storage sites for oil wells that are not connected to major pipelines. These large metal tanks can hold hundreds of thousands of gallons of crude oil, and can give off flammable fumes. Zalee Gail Day-Smith and her friends would frequently hang out around these tanks where there was no fence, gate, or warning signs.

Despite not knowing exactly what happened at the site when Day-Smith died, new rules have been put in place to minimize the chance of it happening again.

Tank sites within 500 feet of a home or highway, 1,000 feet of a church or school, or anywhere within the limits of a town, city or village must follow these rules:

California Jury Verdict Awards Plaintiff $2 Billion in Roundup Weed Killer Suit

June 21, 2019 | by Broussard, David & Moroux

While thousands of cancer patients are currently involved in lawsuits against the agrochemical corporation Monsanto Company, only three have gone to trial, all of which have resulted in verdicts favoring the plaintiff. Most recently, a California jury awarded the plaintiff the eighth-largest personal injury verdict in United States history—$2.055 billion—claiming, both, that the company’s popular weed killer Roundup has carcinogenic properties and that the company “manipulated science, the media, and regulatory agencies to forward their own agenda.”

The couple receiving the award, Alva and Alberta Pilliod, both started using Roundup in the 1970’s. Now almost fifty years later, both individuals suffer from cancer; Mr. Pilliod suffers from non-Hodgkin’s lymphoma in his bones, including his spine, and Mrs. Pilliod suffers from non-Hodgkin’s lymphoma brain cancer. As a result, the couple received $55 million in compensatory damages. This, however, pales in comparison to the $2 billion punitive award against Monsanto, who continues to claim that the herbicide at play, glyphosate, is non-carcinogenic. Working against the defense is a “mountain of evidence” showing that the agrochemical company explicitly tried to interfere with governmental agencies who wanted to review the product. Various investigations have illuminated a concerning relationship between Monsanto and the Environmental Protection Agency, which involved EPA officials that offered to help Monsanto prevent another company from reviewing the effects the herbicide.

It is certainly expected that the defense will appeal the case, and though there is little chance that the verdict will be reversed, it is additionally expected that the initial $2 billion award will be dramatically reduced, similar to a previous Roundup case wherein a jury award of $289 million was cut down to $78 million. Plaintiff’s attorneys admit that, though the actions of Monsanto Company were egregious and reprehensible, the Supreme Court has issued guidelines that “punitive damages usually should not exceed 10 times the compensatory damages.”

Plaintiffs Seek Immediate Access to Landfill in Air Pollution Lawsuit

January 11, 2019 | by Broussard, David & Moroux

The plaintiffs in an air pollution lawsuit are requesting immediate access to a landfill in Jefferson Parish, Louisiana in order to conduct environmental testing. The lawsuit is one of roughly eighty that have been filed against the parish landfill, claiming that an abundance of strong odors is making living conditions unbearable in the surrounding area. Such tests, the plaintiffs argue, are essential to a well-rounded, well-informed case.

Against the plaintiffs’ motion are a multiplicity of tests that have already been conducted by the parish and state and that have concluded that the majority of the odors have origins distinct from the landfill in question. One particular study conducted by a California-based company pointed to a number of other potential sources of the smells, such as two privately owned landfills adjacent to the parish landfill. On the contrary, plaintiffs argue that there has been no “comprehensive analysis” of the gases emitted from the landfill, but rather, the state tests only looked for a limited subset of chemicals, resulting in an insufficient test scope.

Thus, to resolve the apparent testing issue, plaintiff’s attorneys are requesting access to the parish landfill to conduct their own private testing of the emissions and have hired a Maryland-based environmental scientist for the job. “Absent a prompt opportunity to inspect and sample at the landfill,” they say, “petitioners will lose the opportunity to obtain the most pertinent site-specific information that would help establish what has transpired over the last year and how those conditions affected petitioners.”

Louisiana Fishermen Fighting for Water Rights

January 7, 2019 | by Broussard, David & Moroux

The Louisiana Sportsmen Coalition is in a battle with the Louisiana oil industry over rights to use coastal marshwaters for their respective enterprises. Representatives of local fisherman argue that oil companies who own nearby lands have unjustly also claimed ownership of adjacent waters that flow in and out of manmade channels. The sportsmen state that the waters, though very good for fishing, are being treated as off-limits, and the fishermen themselves are being treated as trespassers. Specifically, they say, “It has gotten to the point where [oil companies] are having local law enforcement agencies, like the sheriff’s office and justices of peace, write criminal trespassing tickets to people.”

The conflict came to a head last year when a professional Bassmaster fishing tournament was held in these areas. The world-renowned fishermen, individuals who make a living by these tournaments, unknowingly wandered into “privately owned” waters and were met by authorities. Following the tournament, the Bass Angler Sportsmen Society (B.A.S.S.), the national organization responsible for the well-known Bassmaster tournaments officially announced that it would no longer schedule professional tournaments in Louisiana tidewaters, a decision that will, without doubt, negatively impact the state’s fishing industry. Thus, as the sportsman’s coalition argues, the battle over water access is more than a debate about who can travel where; it is actually a battle over the prioritization of industries, and favor traditionally lies with the oil industry.

Unfortunately for the fishermen, a recently proposed bill that would have granted public access to the marshwater failed in Louisiana’s House of Representatives. The bill argued that because the waters are “running waters”—they freely flow into positively public waterways such as the Gulf of Mexico—they cannot be partitioned as either public or private, and therefore, their default status would be considered public. Opponents of the bill argued that just as one can claim ownership of dry land, one can claim ownership of the bottomlands underneath the water, for coastal erosion is constantly converting dryland into bottomland. The House’s vote reinforces Louisiana’s status as one of the only coastal states that does not consider tidal waters open for public use.

Controversial Neoprene Plant Emissions Result in Lawsuit Against School Board

December 18, 2018 | by Broussard, David & Moroux

A lawsuit has been filed against the St. John the Baptist Parish School Board as a result of potentially carcinogenic emissions from a nearby neoprene manufacturing plant. The plant, located in Laplace, Louisiana, is one of only a few in the country that produces polychloroprene, a solid substance used to make adhesives, automotive or industrial parts, coatings, dipped goods, neoprene wetsuits, and the like. Consequently, however, manufacturing plants of this kind emit into the air a gaseous form of the liquid chemical chloroprene, which the Environmental Protection Agency has deemed to be a “likely carcinogen”.

The chemical plant has been owned by Denka Performance Elastomer since 2015, but it was formerly owned by Dupont Performance Elastomer who operated the plant since 1969. The specific health effects of chloroprene are not definitively known; however, many local residents are concerned that they are at risk. These fears have been previously articulated in lawsuits against Denka, but now those fears are directed at the school board. According to the case, which was filed by a parent whose child attends the school, “There is presently and has been for years a very serious health hazard and/or life-threatening health hazard to the children/students who attend school at Fifth Ward Elementary School.”

In response to the suit, the EPA established six monitoring stations around St. John Parish, one of which was located at the school in question, and data confirmed the suspicion of high chloroprene levels at the school. Denka, however, maintains the position that chloroprene is being wrongly depicted as a harmful chemical. According to the 2015 National Air Toxics Assessment also conducted by the EPA, St. John Parish residents have the highest risk of cancer from an airborne pollutant, but it is unknown if this risk is due to chloroprene or some other cause. With more research being conducted by the day, the parish school board is determined to prove the safety of its students.

Louisiana Court Rules in Favor of Bayou Bridge Pipeline

December 14, 2018 | by Broussard, David & Moroux

On December 6, the 16^th Judicial District Court in St. Mary Parish Louisiana ruled in favor of the Bayou Bridge pipeline, issuing a mere $450 punishment for trespassing in an eminent domain suit filed by three local residents. The lawsuit, filed in late July of 2018, argued that Energy Transfer, LP (formerly Energy Transfer Partners), the owner of the pipeline, illegally began construction on privately owned land without proper permission.

The Bayou Bridge pipeline is a 163-mile underground oil pipeline intended to transport oil from the Louisiana-Texas border to St. James Parish. Many residents do not mind their land being used to house the pipeline, but many other residents are very opposed to the idea, claiming that the land being used is “not valueless, vacant land…. The property is part of a larger vital and vibrant ecosystem filled with life that includes trees, wildlife, fish, and birds, and it plays an important role in the economic health and well-being of the state beyond its borders.” Thus, for the landowners who filed the suit, the challenge is not about money, but it is rather about protecting the land.

The defense claimed that they had eminent domain over the land, allowing them to take it through expropriation due to the fact that the land was used for the public’s interest. The Court agreed, allowing them to continue the pipelines construction, but assessed a small penalty for trespassing—150 dollars to each plaintiff—given that they did not exercise due diligence in notifying the property owners prior to the beginning of construction. The plaintiffs continue to hold that it is not in the public’s interest to facilitate coastal erosion, the natural consequence of digging, carving, and drilling into Louisiana’s marshland. Additionally, the plaintiffs argue, the pipeline places the utilized land at risk of an oil catastrophe, citing Energy Transfer’s history of 3.6 million gallons of oil spilled in the last sixteen years.

Neoprene Plant in Laplace Facing Air Pollution Lawsuits

December 10, 2018 | by Broussard, David & Moroux

A neoprene-producing chemical plant is facing multiple lawsuits as a result of potential carcinogens released into the air. The Denka Performance Elastomer plant located in Laplace, Louisiana, is said to be one of the only chemical plants in the country that releases the chemical chloroprene into the air.

According to a study by the Environmental Protection Agency, chloroprene is “a volatile, flammable liquid used primarily in the manufacture of polychloroprene,” 90 percent of which is found in solid form to make adhesives, automotive or industrial parts, coatings, dipped goods, or in this case, neoprene. One result of the polychloroprene manufacturing process is the release of chloroprene into air as exhaust. Similar EPA studies assert that chloroprene is a “likely carcinogen” and that safe levels of chloroprene in the air remain under 0.2 micrograms of chloroprene per cubic meter of air.

Local residents claim that their proximity to the plant causes them to live in fear that they will one day suffer from cancer, and their fear is not unfounded. A 2015 EPA survey of the air showed that St. John Parish, Louisiana, had the highest risk of cancer from an airborne pollutant in the country. It is unknown if this finding is directly related to chloroprene; however, the plant in question is one of only fourteen in the country that produce the chemical, and it has been in operation since 1963 (though its owner company has changed since its founding).