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New York's Case Against Exxon Fails Miserably

13 Dec 2019 00:00:00 -0800

In a ruling that will likely have implications for climate change litigation across the United States, a state judge in New York has dismissed the New York Attorney General’s suit against ExxonMobil Corporation. The 55-page opinion issued by Jude Barry Ostrager is a scathing rebuke of the AG’s case.

Over the three and one-half years of investigation and legal proceedings, Exxon produced millions of pages of documents and dozens of people were deposed or interviewed. The AG made several claims against Exxon in the original petition, which Judge Ostrager called “hyperbolic.” At trial, the AG claimed that Exxon committed equitable and common law fraud and otherwise violated certain state laws, including the Martin Act which generally relates to misrepresentations associated with the sale or distribution of stocks or securities. The trial lasted twelve days and eighteen witnesses testified.

At the close of evidence, the AG withdrew its fraud claims, perhaps realizing that the judge would rule against them or that they had not proven the claims. Even so, the judge found that Exxon “would not be held liable on any fraud-related claims,” reasoning that because the AG failed to prove the other claims that did not require proof of intent, they certainly could not prove claims that did.

As to the Martin Act or securities claims, the AG claimed that Exxon made misrepresentations and omissions in reports and shareholder meetings from 2013 to 2016 about how Exxon managed the risks of climate change and increasing regulations. The judge reviewed all of the publications which the AG asserted contained misrepresentations and omissions, the testimony of Exxon employees, and the AG’s expert. Tellingly, the AG offered no testimony from any investor who claims to have been misled.

In the publications, Exxon made clear that it anticipated possible restrictions on fossil fuel production and decreasing consumer demand in the future based on global concerns regarding climate change. Indeed, Exxon mandated that all of its business segments include, where appropriate, greenhouse gas costs when seeking internal funding of capital investments. The judge found that there was no proof that anything Exxon is alleged to have done affected Exxon’s balance sheet, income statement, or any other financial disclosure. Specifically, the judge found that no reasonable investor would make investment decisions “based on speculative assumption of costs that may occur 20+ or 30+ years in the future with respect to unidentified future projects.”

As to testimony, the judge found that all of the Exxon employees were “truthful” and were “uniformly committed to rigorously discharging their duties in the most comprehensive and meticulous manner possible.” As to the testimony of the AG’s expert, the judge found that his testimony actually provided no support for the AG’s theory of the case because, as an investment professional, he had never downgraded Exxon as a result of any of the events which were the focus of the AG’s claims.

While the denial and dismissal of the New York AG’s claims is significant, other suits are still pending around the country. Many contain the same type of fraud allegations asserted by the New York AG. However, these suits also contain other claims as well, such as common law nuisance claims. Nonetheless, the ruling in New York will certainly be touted by Exxon in the other pending cases.

For now, though, Exxon has won a decisive victory against a determined opponent. For the New York AG, the case was simply not strong or persuasive enough under New York’s securities law to convince the judge. We will have to wait and see if other claims will meet a similar fate.

Don't Violate Louisiana's Governmental Ethics Laws This Holiday Gift-Giving Season When It Comes to Public Employees

25 Nov 2019 00:00:00 -0800

It is that time of the year again – governmental ethics violations when gift giving to public employees. Louisiana’s governmental ethics laws significantly restrict – in fact, virtually eliminate – the giving of gifts to public employees from businesses in the private sector that do business with them. That innocent holiday gift is actually against the law. Simply put, when it comes to gift giving and governmental ethics, they simply do not mix.

Louisiana law prohibits a public employee from being given “anything of economic value” by anyone seeking a contractual, business, or financial relationship with the public servant’s agency or anyone who is seeking to influence the passage or defeat legislation by the public servant’s agency. This means that traditional gift baskets of Louisiana spices, pecans, wine, or any other product is a violation of the governmental ethics law if the giver has a business relationship with the public employee’s agency. And it is not only a violation of the ethics law to give a public employee such a gift; rather, the public employee’s acceptance of the gift also violates Louisiana’s governmental ethics law.

Practically, the only thing that a person or company can give to a public employee with whom they have a contractual business or financial relationship is a greeting card; or a calendar or pen that does not have any resale value. But you can give your child’s teacher a nominal gift. You can also pay for a public employee’s meal as long as its value does not exceed $62.00 and you are dining with them.

But he/she is my friend! The standard excuse for violating the governmental ethics laws during the holiday season. Louisiana’s governmental ethics laws do not recognize this excuse as a defense to a violation. Simply put, friendship – no matter how close – does not matter.

Businesses need to keep in mind that they can probably not give the gift they may want to give to a public employee. Always check with legal counsel.

Otherwise, for each gift you give in violation of the governmental ethics laws you face a $10,000.00 fine and possible criminal charges. As for the recipient, the penalty can be all of those penalties and forfeiture of the gift. For both, the giver and receiver, the penalty always includes a public sanction – which could affect the giver’s ability to do business in the future in the State of Louisiana and, for the recipient, could be detrimental to their future success.

Holiday Party Useful Tips to Consider

25 Nov 2019 00:00:00 -0800

Some employers have moved away from holiday parties. However, many, including BS&W, continue to host holiday parties for employees, and some even continue to provide adult beverages at these parties. Below are some useful tips to consider if you do so.

Explain to management that they are “on duty”:

§ They must watch drinking and related behavior
§ Remember professional boundaries
§ Do not drive employees home after the party, regardless of how intoxicated they appear
§ Do not “after-party” with staff
§ “No” means no
§ Use the “mom test” (i.e. if you wouldn’t do/say it to your mom or in front of your mom, then don’t do/say it at the function.)

Remind employees that you want them to have fun, but:

§ Attendance is voluntary, but if they attend normal standards of conduct still apply
§ Misconduct at or after the party will lead to disciplinary action
§ Drink responsibly
§ “No” means no
§ No marijuana (even if they have a physician’s recommendation)
§ Encourage designated drivers or even provide free Uber or Lyft rides

For everyone:

§ Follow the “one wine, one water” rule (it is hard to get drunk if you drink a full glass or two of water between every alcoholic drink)
§ No dirty dancing
§ No sleep-overs after the party (or couch surfing)
§ And for goodness sake, please don’t hang mistletoe!

Breazeale, Sachse and Wilson, L.L.P. ranked in 2020 "Best Law Firms"

01 Nov 2019 00:00:00 -0800

Baton Rouge and New Orleans, LA -- U.S. News & World Report and Best Lawyers^®, for the ninth consecutive year, announce the "Best Law Firms" rankings. Breazeale, Sachse and Wilson, L.L.P. has been ranked in the 2020 U.S. News - Best Lawyers^® "Best Law Firms" list and regionally in 31 practice areas. Firms included in the 2020 "Best Law Firms" list are recognized for professional excellence with persistently impressive ratings from clients and peers. Achieving a tiered ranking signals a unique combination of quality law practice and breadth of legal expertise.

The 2019 Edition of "Best Law Firms" includes rankings in 75 national practice areas and 122 metropolitan-based practice areas. A "Law Firm of the Year" is named in 74 of the 75 nationally ranked practice areas.

Ranked firms, presented in tiers, are listed on a national and/or metropolitan scale. Receiving a tier designation reflects the high level of respect a firm has earned among other leading lawyers and clients in the same communities and the same practice areas for their abilities, their professionalism and their integrity.

Breazeale, Sachse and Wilson, L.L.P. received the following rankings in the 2020 U.S. News – Best Lawyers "Best Law Firms":

§ Regional Tier 1

§ Baton Rouge

§ Closely Held Companies and Family Businesses Law

§ Commercial Litigation

§ Construction Law

§ Corporate Law

§ Family Law

§ Government Relations Practice

§ Health Care Law

§ Litigation - Health Care

§ Litigation - Insurance

§ Litigation - Intellectual Property

§ Litigation - Tax

§ Mergers & Acquisitions Law

§ Real Estate Law

§ Tax Law

§ Workers' Compensation Law - Employers

§ New Orleans

§ Commercial Litigation

§ Metropolitan Tier 2

§ Baton Rouge

§ Banking and Finance Law

§ Commercial Transactions / UCC Law

§ Employment Law - Management

§ Labor Law - Management

§ New Orleans

§ Litigation - Labor & Employment

§ Mass Tort Litigation / Class Actions - Plaintiffs

§ Product Liability Litigation - Defendants

§ Metropolitan Tier 3

§ Baton Rouge

§ Insurance Law

§ Litigation - Construction

§ Trademark Law

§ New Orleans

§ Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law

§ Litigation - Real Estate

§ Litigation - Securities

§ Mergers & Acquisitions Law

§ Securities / Capital Markets Law

Management Update Newsletter Volume 8, Issue 11

01 Nov 2019 00:00:00 -0800

Proposed Revisions to the Anti-Kickback Statute: An Overview

29 Oct 2019 00:00:00 -0800

On October 3, 2019, the Department of Health and Human Services, Office of Inspector General (HHS-OIG) issued its proposed amendments to specific provisions of the Anti-Kickback Statute (AKS), 42 CFR §§ 1001 and 1003. These proposed amendments modify existing safe harbors, add new safe harbors that provide new protections, and codify existing statutory protections.

The proposed rules are part of the HHS-OIG’s Regulatory Sprint to Coordinated Care, which “seeks to promote value-based care by examining federal regulations that impede efforts among providers to better coordinate care for patients.” In formulating the proposed revisions to the AKS, the HHS-OIG sought to design safe harbors that both (1) allow for “beneficial innovations” in healthcare and (2) promote optimal coordination and management for patients across the continuum of care. The proposed rules are designed to ease the patients’ burdens in coordinating their own care, thus allowing greater patient engagement during their healthcare journey.

The proposed amendments include:

Three proposed new safe harbors for remuneration paid or exchanged pursuant to a “value-based arrangement.” The proposed modifications govern arrangements based on a “value-based purpose,” which is defined as (1) the coordination and management of a target population; (2) the improvement in the quality of care for a target population; (3) the reduction of costs to payors without reducing the quality of care, or (4) the transition from a healthcare delivery and payment mechanisms based on volume of items and services provided (i.e., fee-for-service) to mechanisms based on the quality of care and control of costs of care for the target population. The three safe harbors provide greater flexibility to the parties as they assume more downside financial risk for the cost and quality of care. The three “tier” structure is intended to support arrangements that involve higher levels of risk and to curb incentives in the fee-for-service model to order medically unnecessary items and services. Two of the safe harbors address value-based arrangements with substantial downside financial risk, while two address value-based arrangements at full financial risk.
A proposed new safe harbor for “patient engagement tools or supports” furnished under patient engagement and support arrangements to improve quality, health outcomes, and efficiency. A “patient engagement tool or support” includes health-related technology, patient monitoring tools, or supports and services recommended by the patient’s licensed healthcare provider. The tool or support must advance one of the following goals: (1) adherence to a treatment regime; (2) adherence to a drug regime; (3) adherence to a follow-up plan; (4) management of a disease or condition; (5) improvement in measurable evidence-based outcomes, or (6) ensuring patient safety. Such tools or supports cannot include gift cards, cash, or cash equivalents, or anything used for patient recruitment/marketing.
A proposed new safe harbor for remuneration provided in connection with a CMS-sponsored model, which would reduce the need for OIG to issue separate and distinct fraud and abuse waivers for new CMS-sponsored models.
A proposed new safe harbor for donation of cybersecurity technology and services. Under the proposed safe harbor, the donation of such services must not take into account the volume or value of referrals or other business generated between the parties, and the donor does not shift the cost of the technology or services to a federal health care provider. The donation must be in writing and properly describe the technology and services provided.
Proposed modifications to the existing safe harbor for nonmonetary remuneration for electronic health records items and services. The modifications (1) specifically include cybersecurity software and services; (2) provide a definition of “interoperable” software, and (3) require that the donor does not engage in “information blocking.”
Proposed modifications to the existing safe harbor for personal services and management contracts, to add flexibility with respect to outcomes-based payments and part-time arrangements. “Outcome-based payments” are allowed when made between parties who are collaborating to (1) measurably improve the quality of patient care, or (2) appropriately reduce costs to payors while maintaining or improving quality of care. The proposed modifications set out specific criteria regarding such proposed contracts, and require that the outcomes are monitored during the agreement and any deficiency identified. Payments to pharmaceutical manufacturers, DMEPOS manufacturers/distributors/suppliers, and laboratories are specifically excluded from this safe harbor.
Proposed modifications for the existing safe harbors for “warranties.” The proposed amendments include technical modifications regarding the definition of “warranty,” and expand safe harbor protection for bundled warranties for one or more item or related services where certain requirements and conditions are met.
Proposed modifications to the existing safe harbor for local transportation. The increase on the protection for transportation in rural areas is increased from 50 miles to 75 miles. The distance limit set forth in the regulation is eliminated for discharged patients. The comments also note that the HHS-OIG will “consider an amendment to the safe harbor to explicitly protect transportation through ride-sharing services” (i.e., UBER of Lyft) if commenters explain how the statutory language could be construed to exclude such services.
Codification of the statutory exception to the definition of “remuneration” related to the ACO Beneficiary Incentive Programs for the Medicare Shared Savings Program.
Telehealth for In-Home Dialysis. The proposed amendment to the statutory definition of “remuneration” in the Civil Monetary Penalty Rules interpreting and incorporating a statutory exception to the prohibition on beneficiary inducements for “telehealth technologies” furnished to certain in-home dialysis patients.

In the context of hospitals, what do these proposed amendments provide? According to HHS-OIG, hospitals and physicians can enter into agreements to coordinate care for patients being discharged from a hospital to ensure better follow up care, data analytic systems to ensure that the patients are achieving better health outcomes, and remote monitoring technology to alert physicians or caregivers to a needed healthcare intervention. A hospital could donate cybersecurity software to each physician that refers to the hospital to minimize the risk of cybersecurity attack. Hospitals, and physicians, can provide items to patients (such as a pillbox that automatically alerts the physician/caregiver when a patient misses a dose) that further aid patient engagement and reduce the chance of readmission. Further, the potential for hospital collaborations with physicians for achieving specific health care goals and/or cost reduction, depending on the final version of the proposed rules, is greatly enhanced.

It bears noting that the HHS-OIG has recognized that no final determination has been made as to whether the proposed amendments strike the appropriate balance between “flexibility for beneficial innovation” and “safeguards to protect patients.” Thus, the proposed safe harbors, if adopted as written, would provide only prospective protection. While it might be helpful at this point to begin to review current business agreements or contemplated business arrangements for compliance with the proposed safe harbors, such agreements or arrangements should not be implemented until the final passage of the amendments.

Court Holds That Owner Has No Right to Recovery Against Payment Bond

28 Oct 2019 00:00:00 -0800

Subcontractors, suppliers, and lessors all have rights to assert a claim against a surety under a payment bond furnished on a project. But what about an owner? The recent case of Roy Anderson Corp. v. 225 Baronne Complex, L.L.C., 2018-0962 (La. App. 4 Cir. 9/25/19) addressed this issue in connection with a payment bond issued under the Private Works Act, concluding that no such right is afforded under Louisiana law.

In Roy Anderson, the owner of a project contracted for the construction of a private project, and a payment bond was furnished by the contractor’s surety. The project achieved substantial completion, following which the general contractor recorded a statement of lien and privilege in the mortgage records claiming a considerable amount owed by the owner in connection with the project. Thereafter, the contractor initiated a lawsuit to enforce the lien and recover damages based upon the outstanding balance claimed due.

In response to the contractor’s lawsuit, the owner filed a third-party demand against the surety seeking recovery under the payment bond issued for the project. The surety then responded asserting that the claim should be dismissed on the basis that the owner had no right under the law to pursue such a claim against the bond. Stated differently, the surety essentially challenged the owner’s standing to assert the claim. In opposition to the surety’s position, the owner argued that since the contractor was asserting a claim that included amounts allegedly owed to subcontractors, and because the language of the payment bond obligated the surety to pay or to indemnify the owner from the claims of subcontractors, that the owner did have a right to pursue the payment bond. The trial court disagreed and dismissed the claim.

On appeal, the Louisiana Fourth Circuit Court of Appeal affirmed the ruling. Specifically, the Court concluded that the payment bond was to be considered a statutory bond under the Private Works Act such that the liability of the surety on the bond could not be expanded beyond that permitted by the statutory scheme. The Court then explained that the purpose of the Private Works Act is to protect subcontractors, among others, who perform work on construction projects but lack privity of contract with the owner. In order to do so, the Private Works Act grants those parties, known as claimants, rights to facilitate recovery of the costs of their work from the owner. The Private Works Act also creates an “escape hatch” that relieves an owner of liability when it complies with certain requirements. In those instances, the payment bond issued under the Private Works Act stands in as security for the claims made by the claimants. However, the owner of a project is not considered a claimant whose right to recovery of damages is protected under the Private Works Act. As such, the Court held that the owner is not within the class of persons to whom the law grants a right to bring a claim against the payment bond.

Court Ruling Subjects Design Professionals to Negligence Claims for Expanded Time Period

28 Oct 2019 00:00:00 -0800

A negligence claim can typically be brought against a design professional under Louisiana law despite no contract existing between the plaintiff and the design professional (i.e. a suit by a general contractor against an owner-contracted engineer). A recent case, Pizzolato v. Grier, 2018-0912 (La. App. 1 Cir. 3/14/19), 275 So. 3d 273, 277, reh'g denied (Apr. 10, 2019), writ denied, 2019-00698 (La. 9/24/19), may have significantly expanded the time period in which such an action can be brought.

To understand the Pizzolato decision, one must recognize that a plaintiff’s ability to bring a civil lawsuit in Louisiana can be barred by different time limitations known as “prescription” and “peremption.” While prescription and peremption each serve to constrict the time a claim can be filed, the two concepts are distinct. Technically, a prescriptive period limits the time period that a right can be enforced, whereas a peremptive period establishes a time period for which a right remains in existence. Importantly, if a plaintiff’s cause of action is not known or reasonable knowable, a prescriptive period can be tolled. A peremptive period can not be tolled.

Negligence actions are generally subject to a one year prescriptive period, meaning that the plaintiff has one year to assert the claim from the time it knew or should have known of the cause of action. In addition, claims against engineers, surveyors, and architects are subject to a five year limitations period contained in La. R.S. 9:5607. The statute describes the five year period as a “peremptive period” which commences upon the acceptance or occupancy of a project. In the case ofMR Pittman Grp., LLC v. Plaquemines Par. Gov't, 2015-0396 (La. App. 4 Cir. 12/2/15), 182 So. 3d 291, decided in 2015, the Louisiana Fourth Circuit Court of Appeal held that the five year period set forth in La. R.S. 9:5607 did not displace the general one year prescriptive period for negligence actions. In other words, pursuant to that ruling, a negligence claim against an engineer/surveyor/architect must be filed within one year from when the plaintiff knew or should have known of the cause of action (the prescriptive period) and also in no event more than five years after the project was accepted or occupied (the peremptive period).

However, in the March 2019 decision of Pizzolato v. Grier, the Louisiana First Circuit Court of Appeal rendered a decision involving the timeliness of a claim against an engineer. Specifically, the engineer argued that the claim was for negligence but filed more than one year after the plaintiff knew or should have known of the cause of action, and thus, should be dismissed for being asserted beyond the general one year prescriptive period for negligence actions. Reversing the dismissal of the action by the trial court, the Court of Appeal held that “an action against a professional engineer, which, whether based on tort or breach of contract, is subject to a five year prescriptive period as set forth in La. R.S. 9:5607.”

The decision is significant as the above-cited language of the ruling suggests that a negligence action against an engineer/surveyor/architect can be brought within five years after the project was accepted or occupied, regardless of whether more than a year passed since the plaintiff knew or should have known of the cause of action. Not only is the Pizzolato decision of the Louisiana First Circuit Court of Appeal (based in Baton Rouge) contrary to the earlier MR Pittman decision of the Louisiana Fourth Circuit Court of Appeal (based in New Orleans), but the Pizzolato decision suggests that the general one year prescriptive period for negligence actions is not applicable to those professions governed by La. R.S. 9:5607.

The defendant in the Pizzolato case applied to the Louisiana Supreme Court for review of the decision. However, on September 24, 2019, the Louisiana Supreme Court denied writs, meaning that the Court declined to review the case. Therefore, while there appears to be conflicting cases on this point, a plaintiff now has supporting authority to argue the timeliness of a negligence claim against a design professional up to five years after a project is accepted or occupied, regardless of whether that party knew or should have known of the claim for more than a year before the suit was filed.

Are You Ready For The New White Collar Salary Requirements?

28 Oct 2019 00:00:00 -0800

On September 24, the U.S. Department of Labor issued a Final Rule changing the minimum salary requirements for the Fair Labor Standards Act’s “white-collar” overtime exemptions. The new minimum salary is not as bad as many had feared.

Effective January 1, 2020, the key provisions of the Final Rule are:

Minimum salary is raised from $455 per week ($23,660 annually) to $684 per week ($35,568 annually);
Total annual compensation for Highly Compensated employees is raised from $100,000 to $107,432; and
Employers may use non-discretionary bonuses and incentive payments (including commissions) that are paid annually or more frequently to satisfy up to 10% of the new salary requirement. (Do not be tempted to use discretionary bonuses for this purpose.)

Unfortunately, the new Rule does not change the duties tests for white collar exemptions. Many of us who practice in this area of the law were hoping that the DOL would offer some additional guidance; especially regarding the oft over-used Administrative exemption. The Final Rule also does not contain the requirement for automatic review/increase of the minimum salary thresholds every four years that was contained in the proposed Rule. Any changes in the Final Rule and increases in the minimum salary will now have to be initiated by the DOL and follow the standard rulemaking process.

In preparation for this new salary threshold, employers should:

For those employees who will not meet the new minimum salary:

Raise the employee’s salary to maintain exempt status, or
Convert the employee to non-exempt and begin tracking their hours and paying them overtime.
This is also a good time for employers to “clean house”: ensure that your exempt v. non-exempt classifications are correct; verify that your written job descriptions are still accurate (If you do not have written job descriptions, create them.); review your time-tracking practices; ensure that you are using the proper regular rate of pay when computing overtime (are you including non-discretionary bonuses, excess per diem payments, etc…?).
Prepare to roll this out to your affected employees. Not everyone that is converted from exempt to non-exempt will be happy about the change. Remember, an employee cannot “agree” to be exempt if they do not meet both the salary and duties tests. If they “agree” or consent to the misclassification, or even ask for it, they can still sue later for not compensating them properly.
Resist the temptation to convert a formerly salaried-exempt employee to an independent contractor in order to avoid overtime payments. You will eventually be caught and it will be both painful and expensive.

Employers located in Louisiana should keep in mind that violating the FLSA is especially expensive in Louisiana because a successful plaintiff will not only recover their attorney’s fees and liquidated damages (100%) under the FLSA, they may also be entitled to ninety (90) day’s wages as a penalty under our state payday statute.

Objective Facts About Cancer In Louisiana's Industrial Corridor

21 Oct 2019 00:00:00 -0800

Locating along the Mississippi River in Louisiana provides a great deal of advantages to petrochemical facilities, such as access to natural gas and a global transportation network. These advantages have created an Industrial Corridor in the Louisiana parishes along the river, such as Ascension, East Baton Rouge, Iberville, St. Charles, St. James, St. John the Baptist, and West Baton Rouge.

One claim that is repeatedly made in opposition to new facilities or facility expansions is that people residing in the Industrial Corridor have a greater incidence and mortality from cancer. However, objective data contradicts these claims and establishes that cancer rates and deaths are lower than, or there is no significant difference from, the rest of the state.

Louisiana law requires that health care providers report cancer cases to the Louisiana Tumor Registry (LTR). LTR collects all this data and publishes annual reports regarding cancer incidences and deaths. The empirical data published by the LTR shows that cancer rates in the Industrial Corridor do not differ significantly for white men, black men, and black women from the rates for the rest of Louisiana. Rates for all cancers combined in white women were significantly lower than the statewide rate. Additionally, death rates for all cancers combined in the Industrial Corridor were significantly lower than those for Louisiana among whites; blacks in the Industrial Corridor experienced the same mortality rates as their counterparts statewide. Cancer in Louisiana, 2011-2015, Vol. 33, Sep. 2018.

A recent report issued by the LTR, Cancer Incidence in Louisiana by Census Tract, 2005 — 2015, yet again establishes this point. The report provides information, at the census tract level, regarding actual cancer incidences for census tracts that meet the reporting threshold. To be included, it was required that the population count exceed 20,000 and the case count exceed 15 (or greater than or equal to 16) cases when combining the 2005 to 2015 data together. There are about 146 census tracts in the Industrial Corridor and 128 of the census tracts (or 88%) do not have a significantly higher cancer rates.

Some also claim that cancer risks are higher in the Industrial Corridor. Again, however, the facts do not support this claim. A study entitled Uneven Magnitude of Disparities in Cancer Risks from Air Toxics, which has been cited by several groups speaking at public hearings in opposition to petrochemical permits, compares estimated risks of cancer based on exposure to certain toxic air pollutants. The vast majority of high risk areas in the study are in the urban areas of Orleans Parish and East Baton Rouge Parish, which is well away from industrial activity. By contrast, the study found that most other census tracts in the Industrial Corridor are at a "Low Risk" of cancer caused by air toxics exposure. In fact, that study notes the “residents living adjacent to petrochemical plants fail to report any substantial mortality differentials, meaning that residents at presumably the greatest risk do not report worse outcomes.”

The claims of environmental groups ignore the fact that there are numerous risk factors for contracting cancer, including diet, obesity, smoking status, and genetics. As to cancer caused by industrial emissions, the LTR's objective analysis establishes that cancer incidences and deaths in the Industrial Corridor are lower than, or there is no significant difference from, the rest of the state. As a result, there is no truth to the claim that cancer incidences and deaths in the Industrial Corridor are higher due to industrial activity.