Fifth Circuit Allows Landowners' Tort Claim Against Louisiana Department Of Environmental Quality To Move Forward

• Published date: 16 January 2023
• Subject Matter: Environment, Environmental Law
• Law Firm: Liskow & Lewis
• Author: Ms Hayley Landry and Kelly Brechtel Becker

In a recent decision, the United States Fifth Circuit Court of Appeals remanded to state court a case brought by landowners against the Louisiana Department of Environmental Quality ("LDEQ") and several past and present owners and operators of an industrial facility ("Facility Defendants"), finding that LDEQ was not improperly joined, and therefore the case could not be heard in federal court. In D & J Invs. of Cenla, L.L.C. v. Baker Hughes a G E Co., L.L.C., plaintiffs, forty-eight landowners of property located near the facility, brought a state court action for claims of property damage from groundwater and soil contamination caused by the facility's improper waste disposal processes. No. 21-30523, 2022 WL 9862487 (5th Cir. Oct. 17, 2022) (hereinafter "D & J Invs. of Cenla, L.L.C.") With respect to LDEQ, Plaintiffs claim that they sustained damages as a result of LDEQ's "negligence and misconduct" in failing to timely and properly investigate and warn Plaintiffs of the contamination.

One of the Facility Defendants removed the case to federal court on the basis of diversity jurisdiction, arguing that complete diversity existed between all properly joined defendants and the Plaintiffs. The removing defendant asserted that the only non-diverse defendant, LDEQ, was improperly joined because Plaintiffs failed to state a claim against LDEQ. Plaintiffs responded by filing a motion to remand alleging that LDEQ owed them a duty under Louisiana law to warn about the presence of hazardous materials. The district court denied Plaintiffs' motion to remand and dismissed LDEQ, finding that Plaintiffs had no legally viable tort claim against LDEQ as it was an improperly joined party. The district court "determined that under Louisiana law, LDEQ did not have a duty "to inform [Plaintiffs] of reported contamination within a particular timeframe or to otherwise oversee remediation in any particular manner." It further concluded that Louisiana law does not create a cause of action against LDEQ for contamination caused by private industry."

Plaintiffs asserted several errors on appeal, one of which was "that the district court erred in determining that LDEQ was improperly joined and in denying their motion to remand." The Fifth Circuit noted that a crucial principle in determining whether there was improper joinder is that any contested issues of material fact, and any ambiguity or uncertainty in the controlling state law, must be resolved in the Plaintiffs' favor...