Residents of DISH, Texas were awarded a victory by the Amarillo Court of Appeals in their long-running fight with pipeline companies. Sciscoe et al. v. Enbridge Gathering (North Texas), L.P., et al., No. 07-13-00391-CV. In an opinion issued on June 1, the court held that the plaintiffs are entitled to a trial on their claims that the pipelines’ gathering and compression facilities caused damages to their properties from noise and emissions that constituted trespass and nuisance.
DISH residents have fought the pipeline companies for years. The companies constructed several compressors and a metering station just outside the town between 2005 and 2009. Residents began to complain of excessive noise and offensive odors and said they suffered adverse health effects. In 2008, the residents complained to the Texas Commission on Environmental Quality, which conducted monitoring in 2009 and 2010 and concluded that emissions from the compressors “would not be expected to cause short-term adverse health effects, adverse vegetative effects, or odors.” The Texas Department of State Health Services performed medical tests on 28 DISH residents for exposure to chemicals, and tested tap water; it found no evidence of exposure to chemicals. Those findings were contradicted by tests conducted by Plaintiffs’ expert, Wolf Eagle Environmental, which found that Plaintiffs were exposed to harmful emissions of benzene, xylene, ethyl benzene, toluene and other harmful chemicals.
Finally, 18 DISH residents sued the pipelines in 2001 for damages, alleging nuisance and trespass. The town of DISH also filed suit, seeking damages for the loss of tax revenue resulting from reduced property values caused by the compressor station.
The Plaintiffs’ suits were consolidated into one suit and the case was transferred from Denton to Fort Worth. The trial court then granted the pipelines’ motions for summary judgment and dismissed all claims. The Plaintiffs’ appeal was transferred to the Amarillo Court of Appeals.
The court of appeals held that the Plaintiffs had properly pleaded claims for nuisance and trespass and remanded the case to the trial court for trial.
The pipelines first argued that the migration of airborne chemicals from their facilities across Plaintiffs’ properties cannot constitute a nuisance, because nothing was “deposited” on Plaintiffs’ properties. The court of appeals disagreed: “the migration of airborne particulates can constitute an actionable trespass.” At trial, Plaintiffs “must establish causation, i.e., that the particulates emanated from the activities of Appellees and that Appellants sustained some compensable injury as a result thereof.”
The pipelines argued that their activities cannot constitute trespass or nuisance because they were conducted within governmental regulations, and imposing liability for lawful activities would allow judicial regulation of activities sanctioned by statute and regulation. The court disagreed. Plaintiffs are not seeking to alter or change emission standards, or to prohibit the plaintiffs’ conduct, but only damages caused by that conduct. “Just because Appellees are operating their natural gas compression facilities within the applicable regulatory guidelines does not mean that Appellants have not suffered compensable injuries as a result of those operations.” The court held, however, that Plaintiffs’ efforts to recover damages for any future diminution in the value of their properties or “damages” of $1,000 per day for trespass would be barred, because those claims “look more like a penalty than a claim for recovery of existing actual damages.
Finally, the pipelines argued that Plaintiffs’ claims were barred by limitations, because they knew or should have known of their claims more than two years prior to filing suit. Without any real analysis, the court held that the pipelines had failed to carry their burden of showing that Plaintiffs’ claims were barred by limitations.
Last year, two juries awarded damages against two operators based on nuisance claims. With more drilling and producing activities in populated areas, such claims are bound to continue.
Calvin Tillman, former mayor of DISH, has since set up his own environmental company, ShaleTest, www.shaletest.org, described on its website as “the only organization that provides free and certified environmental testing to those negatively impacted by natural gas development.” Tillman lists Josh Fox as one of the company’s “advisors.” Fox is infamous for his film Gasland, a much-criticized anti-industry documentary.