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Louisiana Environmental Action Network v. Welsh

Court of Appeals of Louisiana, First Circuit

June 14, 2017


         On Appeal from the 19th Judicial District Court, Parish of East Baton Rouge, State of Louisiana Trial Court No. C640494 The Honorable Wilson Fields, Judge Presiding

          Elizabeth Livingston de Calderon Adam Babich New Orleans, Louisiana Attorneys for Plaintiffs /Appellants, Louisiana Environmental Action Network, Concerned Citizens of Belle River, Hazel Cavalier, and Atchafalya Basinkeeper.

          Daniel D. Henry Jr. John W. Adams Baton Rouge, Louisiana and Steven B. " Beaux" Jones Assistant Attorney General Baton Rouge, Louisiana Attorneys for Defendants /Appellees, State of Louisiana through the Office of Conservation and James H. Welsh, Commissioner of Conservation.

          R. Charles Ellis Hahnville, Louisiana Attorney for Intervenor /Appellee, F.A.S. Environmental Services, LLC.


          CRAIN, J.

         This is an appeal of the district court's judgment upholding the Louisiana Commissioner of Conservation's order approving an application for construction of a new transfer station for commercial oil and gas exploration and production (E&P) waste. While recognizing the Commissioner's broad statutory authority to regulate, conserve and use the State's oil and gas resources, we find that the subject permit is beyond the scope of what was requested and, therefore, was issued in violation of lawful procedure. We reverse the district court's judgment, vacate the Commissioner's order, and remand this matter for further proceedings.


         FAS Environmental Services, LLC applied to the Department of Natural Resources for a permit to construct and maintain a commercial E&P waste transfer station in St. Martin Parish. As proposed, the transfer station consisted of a truck unloading area and above ground tanks to receive and temporarily store E&P waste. The waste would be transported by pipeline to FAS's existing disposal facility, then injected into FAS's disposal wells. FAS represented that the new transfer station would take the place of the existing one and, because the new transfer station would be directly connected to the disposal site by pipeline, the need to barge the waste to the disposal site would be eliminated. The new transfer station would be located approximately one and one-half miles north of FAS's existing transfer station.

         The Office of Conservation conducted a public hearing and received public comments regarding the proposed transfer station. The Commissioner then issued Conservation Order No. ENV 2015-03 CFT, which approved FAS's application and contained findings of fact and responses to the public comments. The Louisiana Environmental Action Network (an umbrella organization for environmental and citizen groups), Concerned Citizens of Belle River (a non-profit organization dedicated to preserving and protecting the environment in and around the area of Belle River), Hazel Cavalier (an individual member of Concerned Citizens of Belle River and owner of property located near the approved transfer station), and the Atchafalaya Basinkeeper (a non-profit corporation committed to protecting and restoring the bayous, wetlands, and greater ecosystems within the Atchafalaya Basin) filed a suit for judicial review of the conservation order. The district court upheld the conservation order. This appeal followed.


         Any aggrieved person may appeal the Commissioner's order to the district court. La. R.S. 30:12A. Judicial review is conducted by the court and is confined to the record. La. R.S. 30:12B(4). The district court may affirm the Commissioner's order or remand the case for further proceedings. La. R.S. 30:12B(5). The district court may reverse or modify the order if substantial rights of an appellant have been prejudiced because the Commissioner's findings, inferences, conclusions, or decisions are: in violation of constitutional or statutory provisions; in excess of statutory authority; made upon unlawful procedure; affected by other error of law; arbitrary or capricious, or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or manifestly erroneous in view of the reliable, probative, and substantial evidence on the whole record. La. R.S. 30:12B(5).

         The plaintiff has the burden of proof when challenging the Commissioner's order. La. R.S. 30:12C(2). On questions of law, the reviewing court owes little or no deference to the Commissioner's decision; however, the Commissioner's findings of fact are reviewed under the manifest error standard. Davidson v. Welsh, 10-2213, 2011WL2448226, p.3 (La.App. 1 Cir. 6/17/11). Where the Commissioner has the opportunity to judge the credibility of witnesses by first-hand observation of their demeanor on the witness stand and the reviewing court does not, due regard must be given to the Commissioner's credibility determinations. See La. R.S. 30:12B(5). Further, in reviewing the Commissioner's conclusions and exercises of discretion, the reviewing court must apply the arbitrariness test, and the party challenging the Commissioner's decision must make a clear showing that the administrative action was arbitrary and capricious. Gossen v. Welsh, 15-0852, 2016WL3143952, p.3 (La.App. 1 Cir. 6/2/16), writ denied, 16-1259 (La. 10/28/16), 203 So.3d 1054.

         An aggrieved party may obtain a review of any final judgment of the district court by appeal to the appropriate circuit court of appeal. See La. R.S. 30:12D. In reviewing the district court's judgment, no deference is owed by the court of appeal to the factual findings or legal conclusions of the district court, just as no deference is owed by the Louisiana Supreme ...

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