As landowners in Louisiana, it is crucial to understand the legal landscape regarding environmental contamination on your property, particularly concerning historic oil and gas activities. This blog aims to clarify your rights under the current law, Act 312, and the forthcoming changes to that law under Act 458. Understanding your rights and these laws will help you make informed decisions about pursuing remediation and compensation for contamination on your property.
What is the Current Law? Act 312
Under Act 312, Louisiana landowners have the right to sue for full remediation of contamination on their property. The courts, with the assistance of experts from the parties involved, currently have the authority to evaluate and select the appropriate cleanup plan. The standard of proof required by the landowner to successfully have their cleanup plan implemented is “preponderance of the evidence,” which is a low burden of proof. This framework allows landowners to have significant influence over the remediation process and ensure full remediation of their property.
Understanding the New Law: Act 458
Act 458 introduces significant changes that will impact landowners’ rights to sue and recover for remediation. Here are the key aspects:
- Shift in Cleanup Authority: The authority to evaluate and select a cleanup plan will shift from the courts to the Louisiana Department of Energy and Conservation (“State Agency”). The courts must adopt the State Agency’s plan unless the landowner proves by “clear and convincing evidence” that an alternative plan is more feasible—a much higher burden of proof than the current “preponderance of the evidence.”
- Risk-Based Cleanup Standards: Act 458 allows for “risk-based cleanup” which permits leaving contamination in place if it poses minimal risk to human health or the environment. Residual contamination left on-site—regardless of regulatory approval—will lower property value, limit redevelopment options, and leave lasting liability that no landowner should have to accept.
- Limits on Damages and Recovery of Costs: Non-remediation damages, such as loss of use of property, will be capped at 3X the fair market value of the property’s surface—there is no cap under the current law. Moreover, after the cleanup plan is finalized, parties responsible for the contamination will not be liable for any fees or costs associated with enforcing or monitoring the cleanup—these costs will fall upon the landowner.
- Litigation Delays: Court proceedings will be suspended until the State Agency approves the cleanup plan, delaying resolution and extending the timeline before compensation can be awarded to the landowner. Under the current law, court proceedings can move forward while the cleanup plan is being developed.
- Cutoff Window for Filing Claims: The law under Act 458 will only apply to cases filed on or after September 1, 2027. Lawsuits filed before this deadline will proceed under the existing 312 framework, which is more beneficial to landowners.
Impact on Louisiana Landowners
Act 458 marks a substantial shift in Louisiana’s legal framework for environmental contamination claims. It substantially weakens a landowner’s ability to secure court-ordered cleanups and compensation. By shifting control of the remediation process to the government and prioritizing regulatory standards over landowner rights—Act 458 favors regulators, not landowners—when deciding what level of cleanup is “enough.” With capped damages and a heightened evidentiary burden, landowners will face steep obstacles in pursuing claims for contamination after Act 458 takes effect. It is essential to file your claim before the deadline to preserve your broader rights under Act 312 and pursue full remediation of your property.
To preserve your rights under Act 312 landowners must file claims before September 1, 2027. On this date, the government-led, agency-controlled cleanup process will take effect, significantly narrowing legal recourse and limiting financial recovery for landowners. Under Act 312, landowners have more influence, lower burdens of proof, and the ability to pursue full remediation through the courts. Landowners will lose much of this power on September 1, 2027, making it critical to act now.
Work with Talbot, Carmouche & Marcello
Understanding the implications of Act 458 is vital for landowners who want to protect their property—not just today, but for future generations. The decisions you make now will determine whether your property is safe, clean, and valuable for your children and grandchildren. At Talbot, Carmouche & Marcello, we’re here to help you navigate these complex changes, preserve your rights under Act 312, and fight for the full remediation your property deserves. Contact us today to ensure you act before the deadline and secure the future of your land.