Will Plaintiffs Pursue Class Actions to Fight Fracking?

Will Plaintiffs Pursue Class Actions to Fight Fracking?

More than 500 people turned up at Denton City Hall about a citizen-led petition—signed by 1,900 voters—to ban fracking. After a lengthy public hearing, the Denton City Council rejected a proposal to ban the method of oil and gas extraction inside the city, and by doing so placed the question on the city’s November ballot.

This collective action against fracking in North Texas, where the Barnett shale sits, raised questions for litigators on both sides of the fracking issue about where future court battles will go, and if plaintiffs will successfully pursue “collective” actions.

Michael Lynn, a partner in Lynn Tillotson Pinker & Cox in Dallas who represents a corporate defendant in a fracking-related lawsuit, expects future litigation battles will hinge on class certification.

“The lawsuits will usually be based on claims involving nuisance. I don’t think they will have a problem bringing individual claims. But the real problem will be to certify a class,” Lynn said.

Lynn represents Sunoco Partners Marketing & Terminals, which has denied allegations related to claims of nuisance in an answer filed in Finn v. EOG Resources in the 18th District Court in Johnson County. The other three defendants have also denied the allegations. In Finn, plaintiffs seek to certify a class of Johnson County property owners and recoup alleged damages arising from claims of negligence, nuisance, strict liability and gross negligence against four oil and gas businesses. In its answer, Sunoco states as an affirmative defense that the plaintiffs have failed to state a sufficient factual basis on which to make a claim. The court has not yet ruled on the certification issue in Finn.

Lynn, however, believes that more fracking-opposed plaintiffs will seek class certification in additional litigation. He expects plaintiffs to pursue those efforts typically in state, rather than federal, courts, since no diversity issues are at stake, and “new procedures in federal court make it more difficult” to get a class certified.

“Texas courts have been more receptive to class actions,” Lynn said, but added, “They don’t want to certify bogus claims.”

Chris Cowan of The Cowan Law Firm in Dallas represents four named plaintiffs in Finn. The scene at Denton City Hall heartened him.

“It sheds a lot of light on what the community thinks about their property rights and protecting their structures from damages that clearly is occurring,” said Cowan.

In Finn, he is completing discovery and getting ready to file an amended petition. But Cowan believes the political activity by antifracking members of the community “is going to empower plaintiffs a little bit.” He sees geographic regions like North Texas—where population density is higher—as more likely locations for plaintiffs coming forward than in South Texas, where the larger Eagle Ford shale is located but where the population is much thinner.

Meanwhile, if some of the rhetoric at Denton City Hall holds up, the energy companies may wind up as the plaintiffs in litigation.

Tom Phillips, a former chief justice of the Texas Supreme Court and partner in the Austin office of Baker Botts, represents the Texas Oil and Gas Association. According to multiple news accounts, Phillips said at the Denton hearing that some of his client’s members would “undoubtedly sue” if the ban eventually passes. Phillips did not return a call or email for this story.

In a related development, a Dallas district court judge entered on July 9 a final judgment on a $3 million jury verdict to a family for illnesses they blamed on exposure to water, land and air pollution generated by Aruba Petroleum Inc.’s natural gas drilling operations around their 40-acre ranch in North Texas. Aruba’s lawyer told Texas Lawyer sister publication Law.com that his client planned to file a motion for a new trial.

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