Air Products Blue Energy, LLC v. Livingston Parish Government

The federal district court for the Middle District of Louisiana granted a joint motion for consent judgment in a lawsuit brought by the developer of a carbon sequestration project against the Livingston Parish Government to challenge a moratorium that blocked the project. The court previously granted a preliminary injunction and enjoined the defendants from enforcing the moratorium. The parties’ joint motion stated that the parties agreed that the law was “invalid and unenforceable” as to the developer and its affiliates, contractors, and subcontractors, and that it would not be enforced against those entities. The parties further agreed that the developer’s claims should be dismissed without prejudice.

The federal district court for the Middle District of Louisiana enjoined the Livingston Parish Government and related parties from enforcing a moratorium on construction and drilling of Class V wells, seismic surveys, and other activities. The plaintiff had entered into a Carbon Dioxide Storage Agreement with the State of Louisiana and intended to build a carbon sequestration facility. The court rejected the Parish defendants’ arguments that the plaintiff lacked standing to challenge the moratorium and that the claims were unripe. The court further found that the plaintiff had shown a likelihood of success on the merits because the moratorium was preempted due to its encroachment on the field of underground injection control, an area in which the Louisiana Legislature granted the State pervasive authority to regulate. The court also found that the plaintiff faced irreparable harm and concluded that because State law preempted the moratorium, a preliminary injunction to enjoin the moratorium’s enforcement would serve the public interest and would not cause harm.

A company that had entered into a Carbon Dioxide Storage Agreement with the State of Louisiana and other State parties filed a lawsuit challenging an ordinance adopted by Livingston Parish that allegedly attempted “to improperly place a 12-month moratorium on the construction and drilling of Class V well, as well as seismic surveying.” The complaint alleged that a clean energy complex announced in connection with the Carbon Dioxide Storage Agreement would support Louisiana’s climate, energy, and economic goals and would produce clean hydrogen and clean ammonia. The company alleged that its plans included permanent sequestration of approximately 5 million metric tons of carbon dioxide each year. The complaint asserted that Louisiana state law preempted the Parish’s ordinance, and that the ordinance also was preempted by the federal Safe Drinking Water Act (SDWA) and Louisiana law and regulations implementing the underground injection control program under the SDWA.