On June 1, 2015, in a case about the interplay between the right of individual property owners to seek redress for the diminution in value of their properties caused by light, noise, and airborne chemical particulates originating from the operation of adjacent regulated energy production facilities and the right of the government to regulate emissions from those facilities, the Seventh Court of Appeals sitting in Amarillo issued a ruling reversing the grant of summary judgment to five energy production companies whose operations are located near DISH, Texas, and remanding the matter for further proceedings. The case is Sciscoe, et. al. v. Enbridge Gathering (North Texas), L.P., et. al.
Eighteen homeowners and the Town of DISH filed separate lawsuits against these companies, essentially alleging that the noise, light, odors, and chemical particulates emanating from their adjacent operations caused a nuisance and constituted a trespass, entitling the plaintiffs to monetary damages; the plaintiffs, however, did not seek injunctive relief. The defendants argued that the migration of odors and chemical particulates onto the plaintiffs' properties cannot constitute a trespass as a matter of law; that their claims are preempted by Federal and State Clean Air Acts; their emissions fall within the regulatory limits established for these emissions; and the applicable statute of limitations requires their dismissal. The trial court agreed, and granted summary judgment.
On appeal, the Seventh District Court of Appeals ruled that the trial court was in error when it ruled that, as a matter of law, the migration of airborne particulates cannot constitute an actionable trespass. It noted that, while the plaintiffs must prove their case, they should have the chance to do so. With respect to the defendants' argument that their permitted natural gas compression units adhered to the law, the Court of Appeals concluded that they were not "somehow immune from liability for damages they may have caused just because they have a regulatory permit", and therefore summary judgment on this issue was inappropriate. Regarding the ruling of the trial court that the plaintiffs' claims were barred by the relevant statute of limitations, the Court of Appeals ruled that the defendants failed to establish, as a matter of law, every element of that defense. Accordingly, summary judgment on this point was reversed. On the other hand, the Court of Appeals found that the plaintiffs' claims to recover damages for future diminution in the value of their properties was preempted by Federal and State law.