The Eighth Circuit recently reversed class certification in a recent environmental case. See Smith v. ConocoPhillips Pipe Line Co., No. 14-2191 (8th Cir., 9/15/15).

Defendant owned a petroleum products pipeline which runs through the town of West Alton, Missouri. After a leak in the line was discovered way back in 1963, its source was repaired, but the contamination at the leak site allegedly was not fully remediated. In 2002, contaminants allegedly from the leak were discovered in a family residence in the area. Defendant purchased and demolished this property as well as others affected by the leak. In cooperation with the Missouri Department of Natural Resources, Phillips fenced in the area around the leak site and set up monitoring wells to track any spread of pollutants. This action was filed in 2011 on behalf of a putative class of nearby landowners alleging that the contaminated site is a nuisance. The district court certified the class on the theory that possible "pockets of contamination" existed within the identified area.

The class plaintiffs presented expert  evidence, including Dr. Patrick Agostino, a Ph.D in geology. Dr. Agostino explained that leaked contamination is pulled downward by gravity and spreads out, thus shifting over time. According to his testimony, the contamination in West Alton spread both to the north and south of the leak site; it was then pulled downward until it reached the water table and contaminated the groundwater. Based on his analysis, Dr. Agostino concluded that the resulting plume of contamination could have been “considerably larger” in the past than currently, and that it would therefore have affected other properties outside the contamination site. Discovery also included sampling of the contamination site and nearby properties.

The district court certified the class seeking nuisance based damages and injunctive relief. In its certification order the court relied on evidence that contaminants had been shown in some monitoring wells, that the pollution was continually shifting, and that it could not “rule out the possibility that pockets of contamination exist.”

To show the Rule 23 requirement of commonality, the plaintiff must demonstrate that the class members have suffered the same injury. On appeal, Phillips argued that the lack of proof of contamination spread throughout the class land shows there is no class-wide injury. Absent the injury of actual contamination, it argued, plaintiffs could not meet the Rule 23 requirements of commonality or typicality. The key contaminant chemicals had not been shown to be on land owned by the class members. 

The court of appeals saw a contemporary consensus reached by persuasive authority on the meaning of common law nuisance in the context of environmental contamination, requiring physical contact or impact or invasion.  Thus, the panel concluded that the putative class fear of contamination spreading from the West Alton leak site to harm their property is not a sufficient injury to support a claim for common law nuisance in the absence of such proof. So there was a crucial lack of commonality defeating class certification.