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LDEQ Permitting



Louisiana Practice Series - Louisiana Environmental Compliance
Public Trust - IT Analysis
The Louisiana Public Trust Doctrine is based on article IX, Section 1 of the 1974 Louisiana Constitution. Article IX, Section 1, provides:

That the natural resources of the State, including air and water, and the healthful, scenic, historic and aesthetic quality of the environment shall be protected, conserved and replenished insofar as possible and consistent with the health, safety and welfare of the people. The Legislature shall enact laws to implement this policy.



Article IX imposes a duty of environmental protection on state agencies. Save Ourselves, Inc. v. Louisiana Environmental Control Com'n, 452 So. 2d 1152 (La. 1984). Article IX does not establish environmental protection as an exclusive goal, but it requires a balancing process in which environmental costs and benefits are given full consideration along with economic, social and other factors. The Save Ourselves case left open the questions of which agencies the public trust applies to and whether the public trust imposes substantive as well as procedural requirements on agencies. The decision itself involved an application by a company (the IT Corporation) for a permit to construct and operate a new hazardous waste disposal facility in a place where no other disposal facility had previously existed. The Court found there was a need for an examination of whether or not adverse environmental impacts of a facility had been minimized, such as an examination of alternate projects, alternate sites, or mitigative measures that would offer more protection for the environment than the proposed project without unduly curtailing non-environmental benefits. The Court noted the absence of information in the record.

The IT factors that are derived from the Save Ourselves case include the following:

  • The potential and real environmental effects of the proposed project must have been avoided to the maximum extent possible;

  • The cost benefit analysis of the environmental impact cost balanced against the social and economic benefits of the project demonstrate that the latter outweighs the former; and

  • The alternative projects or alternative sites have mitigating measures which offer more protection to the environment than the proposed project without unduly curtailing non-environmental benefits to the extent applicable.

The case also stands for the proposition that LDEQ must make findings to support its permit decisions.
The cost benefit analysis required by Save Ourselves does not require a particular type of analysis, although all balancing must be articulated and explained in detail. However, since the Save Ourselves decision, the public trust doctrine sometimes has been interpreted substantive. Matter of Dravo Basic Materials Co., Inc., 604 So. 2d 630 (La. Ct. App. 1st Cir. 1992). If LDEQ fails to make proper findings in a permit decision, a court will likely set the LDEQ decision aside. Matter of Rubicon, Inc., 670 So. 2d 475 (La. Ct. App. 1st Cir. 1996); Matter of West Pearl River Nav. Project, 657 So. 2d 640 (La. Ct. App. 1st Cir. 1995).
Note:
Louisiana Environmental Action Network v. Louisiana Dept. of Environmental Quality, 2009-1244 La. App. 1 Cir. 2/8/10, 2010 WL 431500 (La. Ct. App. 1st Cir. 2010) (noting LDEQ's response to public comments do not have to be hypertechnical and giving judicial deference to LDEQ's technical findings such as on monitoring requirements).

The Save Ourselves decision and resulting IT factors are analogous, in part, to NEPA. However, it cannot be said that the IT analysis under the Louisiana public trust doctrine is a layered approach like NEPA is. That is, NEPA requires smaller studies, e.g., the environmental assessment, for projects with minor impacts, and more extensive studies, e.g., an environmental impact statement, for projects with more significant impacts. See, Johnson, Constitutional Environmental Protection in Louisiana: Losing the Reason in the Rule of Reasonableness, 42 Loy. L. Rev. 97 (1996).
The Louisiana legislature has adopted the IT questions at La Rev Stat Ann § 30:2018(B). It requires a permittee in an environmental assessment to address the following issues regarding the proposed permit activity:

  • The potential and real adverse environmental effects of the proposed permit activities;

  • A cost-benefit analysis of the environmental impact costs of the proposed activity, balanced against the social and economic benefits of the activity which demonstrates that the latter outweighs the former; and

  • The alternative to the proposed activity which will offer more protection to the environment without unduly curtailing non-environmental benefits.

  • LDEQ may combine a public hearing on the environmental assessment with a public hearing on the proposed permit. Section 2018.C.

However, LEQA § 2018(E) exempts certain activities from this IT analysis, including the following:

  • Minor modifications;

  • Minor variances;

  • Exemptions from permits, licenses, registrations, variances, or compliance schedules;

  • Administrative amendment to a permit, license, registration, variance, or compliance schedule;

  • Minor source of air emissions;

  • Minor source of hazardous waste;

  • Minor source of solid waste;

  • Facility or activity which is not a major source for water discharges;

  • Application for authority to commence construction;

  • Groundwater certification;

  • Remedial action, remediation, response, corrective action, clean-up of soil, groundwater, or surface water related to a facility or removal of properties;

  • Renewal or extension of existing permit, license, registration, exemption, variance, or compliance schedule, unless changes are accompanied by a major application; and

  • Any rule-making by LDEQ.

La Rev Stat Ann § 30:2018(H), however, says nothing in the statutory section relieves LDEQ or permit applicants from the constitutional public trust requirements. This provision is odd, as the public trust doctrine must be implemented through legislation. Thus, the legislature has arguably left it open-ended for courts to decide exactly how the public trust doctrine will affect LDEQ permit decision-making.
Furthermore, at La Rev Stat Ann § 30:2014.3(C), the legislature adopted the rule of exhaustion of administrative remedies in limiting the issues that can be presented to a court in review of LDEQ's public trustee decisions to those which were made part of the administrative record for the permit application, unless good cause is shown for the failure to submit it to the LDEQ. Good cause includes cases where the party seeking to raise a new issue or introduce new evidence shows that it could not reasonably have ascertained the issues or made the evidence available within the time established for public comment by LDEQ or that it could not have reasonably anticipated the relevance or materiality of the evidence or issues sought to be introduced.

An IT checklist of LDEQ can be found at § 5:73, and a sample LDEQ decision document is at § 5:74.


La. Prac. Envtl. Compl. § 5:56 (2012-2013 ed.)
LSA-R.S. 30:2014.3

§ 2014.3. Review of secretary's public trustee decisions


A. This Section shall apply to the department and all permit applicants and shall apply only with respect to the public trustee issues, as provided in Article IX, Section 1 of the Constitution of Louisiana and by the Supreme Court of Louisiana in the case of Save Ourselves, Inc. v Louisiana Environmental Control Commission, 452 So.2d 1152 (La. 1984). Subsequent case law and laws interpreting said decisions and the rules and regulations adopted by the department in accordance with those decisions may be used to implement the public trustee issues, to be addressed by the secretary when making decisions with respect to permits, licenses, registrations, variances, or compliance schedules authorized by this Subtitle.
B. The applicant and any person who may become a party to an administrative or judicial proceeding to review the secretary's decision on an application must raise all reasonably ascertainable issues and submit all reasonably available evidence supporting his position on the permit application prior to the issuance of the final decision by the department so that the evidence may be made a part of the administrative record for the application.
C. No evidence shall be admissible by any party to an administrative or judicial proceeding to review the secretary's decision on the application that was not submitted to the department prior to issuance of a final decision or made a part of the administrative record for the application, unless good cause is shown for the failure to submit it. No issues shall be raised by any party that were not submitted to the department prior to issuance of a final decision or made a part of the administrative record for the application unless good cause is shown for the failure to submit them. Good cause includes the case where the party seeking to raise new issues or introduce new evidence shows that it could not reasonably have ascertained the issues or made the evidence available within the time established for public comment by the department, or that it could not have reasonably anticipated the relevance or materiality of the evidence or issues sought to be introduced.
La. Rev. Stat. Ann. § 30:2014.3

WHAT HAS BEEN DONE SO FAR



Permitting

Office of Counsel

Via email: dgallasp@gmail.com

Paige Gallaspy
Paul M. Hebert Law Center
1 East Campus Dr.
Louisiana State University Baton Rouge, LA 70803-1000

Re: Gallaspy FOIA No.13-151 Dear Ms. Gallaspy:

DEPARTMENT OF THE ARMY NEW ORLEANS DISTRICT, CORPS OF ENGINEERS P.O. BOX 60267
NEW ORLEANS, LOUISIANA 70160-0267

March 11, 2013

Reference your letter dated March 8, 2013 seeking information under the Freedom of Information Act (FOIA).

You request seems does not provide a reasonable description of the records you seek. It is not clear if you are seeking permits or Feasibility Reports, as the Caernarvon Diversion and Davis Pond were constructed under Federal Authority and as such would not have required Regulatory permits.

No further action will be taken on this request at this time. Please resubmit your request including a more detailed description of the records you seek. Should you have any questions regarding this response, please contact me at 504-862-2264.

Sincerely,

Frederick W. Wallace
Freedom of Information Act Coordinator











1 See Rapanos v. US, 547 U.S. 715, 731 (2006), citing The Daniel Ball, 77 U.S. 557, 563 (1870).

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