By: Michael G. Stag
Most owners of land find family security in their ownership, something they can pass down to their children. In fact, they may have inherited their property and jointly own it with other family members. I have seen firsthand the pride families share in ownership of land, especially when it has been in their family for generations. However, if steps are not taken to secure this legacy, family property can become a liability for future generations, especially after oil and gas drilling and production.
The oil industry not only discourages landowners from taking legal action to clean up their properties, but also lobbies for laws to help them avoid liability for damages they have caused to private and public property. Oil companies bitterly complain so-called legacy lawsuits are bad for business, but they ignore the negative impact polluted land has on businesses such as agriculture, commercial fishing, and other activities requiring the use of natural resources. Leaving pollution behind further impairs the marketability of property, often making it unfit for residential or other development. By attempting to shift legal liability to landowners for their pollution, the oil industry is creating a toxic legacy for future generations of family landowners.
This article will discuss some of the early history surrounding regulations and lawsuits related to the oil and gas industry, the potential harm posed to landowners and their heirs, and offer some legal remedies. I hope this article will further serve to debunk some of the anti-lawsuit propaganda advanced by the industry and its industry group, the Louisiana Mid-Continent Oil and Gas Association (LMOGA).
In Louisiana, oil was first discovered in 1901 near Jennings. For many decades thereafter, oil and its associated waste was stored in open, earthen pits. Pollution problems in the Jennings Field first arose in 1907. It was also known that the oil and the wastewater in these pits seeped underground. Despite knowledge of the environmental harm caused by these pits and the development of alternative technology, the oil and gas industry continued to employ earthen pits to conduct their operations and still does so today.
It took only a few years after the discovery of oil for conflict to arise between industry and landowners. Produced water, also called brine or saltwater, was dumped into waterways or onto open land. In addition to salt, produced water contains hydrocarbons and heavy metals. Although oilmen knew the discharge of produced water was causing damage, they did little to stop it. In 1907, a farmer filed a lawsuit against an oil and gas production company operating in the Jennings Field to recover damages caused to his property. The farmer successfully recovered damages against the well operator.
Contrary to popular belief, the oil industry knew how to minimize the environmental harm of their operations and regulations were enacted to protect the land and water. The Louisiana Department of Conservation developed regulations for waste disposal in 1910. These rules were designed to protect farmers and landowners generally from the harm caused by unregulated waste discharge by the oil industry. Unfortunately, these regulations lacked enforcement due to the strong political influence exerted by industry.
Oil field pits continue to leach pollution into groundwater until the waste is removed and has been properly disposed. The toxic material in these pits often includes arsenic, benzene, toluene, and barium. Oil and gas production also create radioactive waste, known as Technologically Enhanced Radioactive Material (TERM) or Naturally Occurring Radioactive Material (NORM). Exposure to this radiation causes cancer. As a result, landowners face potential legal liability to neighbors and exposed persons if the property remains polluted. The real potential further exists for governmental agencies to order landowners to pay for a cleanup, irrespective of who caused the pollution.
Fortunately for owners of property, oil companies remain generally accountable in court for damages pursuant to terms in the mineral lease contract or by law for failing to prudently operate. Securing a property cleanup typically requires landowners to file suit. Although lawsuits are unpleasant, landowners who delay legal action may forfeit their right to recovery.
Contrary to industry propaganda, these claims get properties remediated. The law requires the judge and the Louisiana Department of Natural Resources with authority to require a cleanup if there is a settlement or an award of damages. Without legal action in the courts, most of these sites would remain polluted.
For more than 20 years, I have represented landowners in legal actions to recover damages and clean up their properties. Our firm hires and pays the upfront costs for experts to investigate the property to determine if it is polluted and, if so, to what extent. We further conduct a historical investigation to understand what activities took place on the property. Gathering and documenting this evidence is critical to proving liability and damages for our clients. We have a proven track record of favorable recovery for our clients.
 THERIOT, J. (2016). Oilfield Battleground: Louisiana’s Legacy Lawsuits in Historical Perspective. Louisiana History: The Journal of the Louisiana Historical Association, 57(4), 403-462. Retrieved from http://www.jstor.org/stable/26290861
 Id. See McFarlen v. Jennings-Heywood Old Syndicate, et al. (1907)