Michael Goldman 2017-12-20 04:58:17
Last year was an exciting one for significant environmental law holdings from state and federal courts. Although space allows only a brief mention of the cases below, for the environmental practitioner, all are worth reading in full. Federal Courts In Environment Texas Citizen Lobby, Inc. v. ExxonMobil Corp.,1 the plaintiffs brought a citizen suit under the Clean Air Act concerning unauthorized air emissions occurring over eight years at Exxon’s Baytown refinery. On remand, the U.S. District Court for the Southern District of Texas revised its conclusions of law concerning the economic benefit, duration, and seriousness penalty factors and assessed a nearly $20 million penalty. In Sierra Club v. Chesapeake Operating, LLC,2 an environmental group sought an injunction under the Resource Conservation and Recovery Act claiming that wastewater injection wells contributed to an increase in earthquakes throughout Oklahoma. The U.S. District Court for the Western District of Oklahoma held that abstention under the Burford abstention doctrine was warranted because the state agency was more equipped to determine if there was a causal connection between the two. The district court in the Southern District of Texas also made several interesting rulings in the USOR Site PRP Group v. A&M Contractors litigation this past year, which will likely impact cost-recovery claims for years to come. Texas State Courts The Texas Supreme Court continues to grapple with statute of limitations issues in environmental lawsuits. In ExxonMobil Corp. v. Lazy R Ranch,3 the Supreme Court affirmed dismissal of common law claims related to Exxon’s historic oil and gas operations but declined to rule on whether the plaintiff was entitled to injunctive relief to remedy the continuing nuisance. In Town of Dish v. Atmos Energy,4 the court affirmed a summary judgment that dismissed the plaintiff’s trespass claims holding that the claims accrued when the town residents began complaining about noise and odor from nearby compressor stations, not when the last facility began operating. In Forest Oil Corp. v. El Rucio Land and Cattle Company, et al.,5 the court confirmed that the Railroad Commission of Texas does not have exclusive jurisdiction over environmental claims against an oil and gas operator. In Lightning Oil Company v. Anadarko,6 the court held than an operator’s horizontal drilling through a mineral estate it does not own to reach oil and gas minerals on an adjacent property does not constitute a trespass. Finally, the court has agreed to hear Morello v. State,7 which seeks to hold an officer of a limited liability company individually liable for alleged environmental violations by the company. Lawsuits brought under section 7.351 of the Texas Water Code by contingency counsel on behalf of governmental entities continue to raise eyebrows. Some defendants claim that these actions violate their due process rights, among other things. The state of Texas, which is joined as an indispensable party, has been sharing in the settlement proceeds. However, that relationship might now be strained in light of In Re: Volkswagen Clean Diesel Litigation,8 which abated several local governments’ later-filed lawsuits related to improper air emissions. The state of Texas has sought reversal of an agreed judgment that was entered without its permission in State of Texas v. Brazoria County, et al.9 Many of the above issues will likely be further addressed, challenged, and refined in this coming year. Notes 1) No. 4-10-CV-4969, 2017 WL 2331679 (S.D. Tex. Apr. 26, 2017). 2) No. CIV-16-134F, 2017 WL 1287546 (W.D. Okla. Apr. 4, 2017). 3) 511 S.W.3d 538 (Tex. 2017). 4) 519 S.W.3d 605 (Tex. 2017). 5) 518 S.W.3d 422 (Tex. 2017). 6) 520 S.W.3d 39 (Tex. 2017). 7) 2016 WL 2742380 (Tex. App.—Austin 2016). 8) 2017 WL 3221748 (Tex. App.—Austin, no pet.). 9) 518 S.W.3d 926 (Tex. App.—Houston [1st App.] 2017, no pet.). MICHAEL GOLDMAN is the founder of Goldman Law in Dallas. For more information about the firm and his new book, Environmental Litigation, go to goldmanlawpc.com.
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