Relying on Texas caselaw, the Fifth Circuit, in Gao v. Blue Ridge Landfill TX, L.P., No. 19-40062 (5th Cir. Oct. 30, 2019), affirmed a district court decision which held that homeowners who moved near a preexisting landfill were subject to a two-year statute of limitations to bring suit based on odors emanating from the landfill. The case, while reliant on state law, nonetheless suggests that such claims that sound in nuisance need to be brought quickly, and that even a change in operations or uptick in odor complaints may be insufficient to reset the clock on the viability of claims.

First, the Court held that odor from the Blue Ridge Landfill was a permanent nuisance. This was important to the Court’s analysis, as a “permanent nuisance claim accrues when injury first occurs”, whereas a “temporary nuisance” accrues upon each injury. The Court stated that the permanence of the nuisance could be shown through either the permanence of the Landfill’s operation or the Plaintiffs’ injuries. The Court noted that the Landfill had operated since 1992 and further, that a survey of residents in 2007 indicated that the neighbors had remarked upon the odors as of that date. Thus, the Court found that both the Plaintiffs’ injuries and the Landfill’s operations were permanent. Further, the Court pointed out that the Plaintiffs presented no evidence that the odors were so rare that it was uncertain they would recur, a required showing to rebut the “permanent nuisance” presumption.

Next, the Court considered Plaintiffs’’ argument that their claims were not time-barred, due to an uptick in the severity of the odor complaints since 2015. As stated above, permanent nuisance claims in Texas are subject to a two-year statute of limitations, and at least some of their named members moved into the neighborhood as early as 2007 and had been experiencing odors from the landfill since at least that date. Nonetheless, they argued that evidence of a worsening in odors in 2015 extended their bar date to 2017, while their suit filed in November 2016. Although the District Court refused to entertain this latter argument as it had been untimely presented, the Fifth Circuit reviewed the filings on this topic and determined that its conclusion would not be altered by them.

In short, this case suggests that, at least in the Fifth Circuit, homeowners cannot move to the source of a nuisance, wait for the problem to become severe, and extend their statute of limitations as starting from this “severity” date.