Environmental Groups Challenge TCEQ Permits

By: Michael K. Reer

On July 20, 2017, four environmental groups filed five lawsuits in the U.S. District Court for the District of Columbia, alleging that EPA failed to prevent the Texas Commission on Environmental Quality from granting improper major source permits under the Clean Air Act to several petroleum refineries and power plants. Specifically, the lawsuits allege that the permits issued by TCEQ contain “unenforceable . . . loopholes” that do not comply with the Clean Air Act. The cases are Envtl. Integrity Project et al. v. Pruitt, Nos. 1:17-cv-01439, 1:17-cv-01440, 1:17-cv-01442, and 1:17-cv-01443 (D.D.C. filed July 20, 2017).
Friday, August 04, 2017

Dallas Appeals Court Overturns Intentional Nuisance Verdict


On February 1, 2017, the Dallas Court of Appeals overturned a jury’s finding that an operator’s oil and natural gas activities created an intentional nuisance for a nearby landowner. The landowner brought suit against the operator for “environmental contamination and polluting events,” including alleged “spills, releases, emissions, and discharges of air pollution . . . air contamination, light pollutions, and offensive noises and odors.” Upon a finding of intentional nuisance, the jury awarded the landowners $2.65 million in damages for past and future physical pain and suffering and mental anguish and $270,000 for property damage.

On review, the Dallas Court of Appeals applied the Texas Supreme Court’s 2016 landmark case Crosstex N. Tex. Pipeline, L.P. v. Gardiner, No. 15-0049, 2016 WL 3483165 (Tex. June 24, 2016). Specifically, the Dallas Court of Appeals noted that plaintiffs must establish intentional nuisance by showing “that the defendant intentionally caused the interference that constitutes the nuisance, not just that the defendant intentionally engaged in the conduct that caused the interference.” Moreover, the Court also noted that intent is “measured by a subjective standard, meaning the defendant must have actually desired or intended to create the interference . . .”

The landowners alleged that the operator subjectively knew its activities were creating a nuisance because of complaints made directly to the operator by the landowners and a neighbor and because of complaints made to the Texas Commission on Environmental Quality by the landowners. The Court found that the landowners’ evidence was insufficient to support a jury finding of intentional nuisance because the landowners did not cite “any evidence that [the operator] knew who placed these calls and made these complaints or that they were specific to the [landowners] or their property.”
Tuesday, February 14, 2017

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