Judge Throws Out Texas Family’s Fracking Pollution Case
By David Hasemyer, InsideClimate News
A Texas judge has dismissed a million dollar lawsuit filed by a Karnes County, Texas, family who say their lives have been ruined by noxious emissions from oil and gas facilities near their home.
District Judge Stella Saxson apparently accepted the argument made by Marathon Oil Corp. and Plains Exploration & Production (PXP) that Mike and Myra Cerny didn’t have enough medical and scientific evidence to prove to a jury that they have been sickened by oil field emissions.
Marathon applauded the ruling, while the Cernys’ attorney said he’ll file an appeal. Legal experts say the dismissal could have a chilling effect on others who may be considering legal action against the oil and gas industry.
The dismissal in Karnes County stands in stark contrast to a case in Dallas County earlier this year in which a jury awarded $2.9 million to a family who also claimed to be sickened by emissions. That two similar cases could have such different outcomes highlights vagaries of both the justice and regulatory system in Texas, where the oil and gas industry is widely praised and supported.
“Judges try to do the right thing but they come at the task with certain preconceptions,” said Thomas McGarity, a University of Texas law professor who specializes in environmental and administrative law. “Those preconceptions vary with the sentiments of jurisdictions they represent.”
The Cernys sued the two oil companies last year claiming they couldn’t enjoy the their home because emissions of benzene, toluene and other toxic chemicals released into the air from by the facilities created a nuisance that made their lives unbearable.
“In its pursuit of oil and gas, [Marathon and PXP] have continuously released strong odors and noxious chemicals into the environment,” according to their lawsuit.
Soon after their one acre property just outside of Karnes City, Texas was surrounded by oil and gas facilities, the Cernys complained to the Texas Commission on Environmental Quality (TCEQ) that foul odors from the facilities coincided with the nosebleeds, rashes and sore throats they were suddenly experiencing.
Marathon and PXP contend the Cernys had no medical or scientific evidence that emissions from their operations caused the family’s health problems or ruined their lives.
“They make this assertion without providing a single expert on oil and gas operations who has opined that [Marathon] has done anything wrong or a single medical expert who has opined that those operations have caused them any injury,] according to the Marathon motion.
Tomas Ramirez, the Cernys’ attorney, said the judge’s acceptance of that argument is a mistaken interpretation of the case and of the law.
“This isn’t a case about people saying they are dying from some disease that you have to establish a cause for,” Ramirez said. “It is a case about a family who says they cannot enjoy their home and their lives because of the emissions.”
Marathon spokeswoman Lee Warren said the ruling “reaffirms Marathon Oil’s commitment to responsible operations in the Eagle Ford.”
“Marathon Oil’s top priority is to conduct our business with a high regard for the health and safety of our neighboring communities, employees and contractors,” Warren said in a written statement to InsideClimate News. “Marathon Oil strives to meet or exceed regulatory standards, and will continue to implement best practices to safely and responsibly develop oil and natural gas resources in the Eagle Ford and everywhere else the Company conducts business.”
The ruling angered long-time environmental activist Sharon Wilson, a member of the Earthworks Texas Oil and Gas Accountability team: “What this [ruling] means is that the oil and gas industry is not very good at fracking and keeping their production methods safe; but what they are good at is intimidating and bullying people.”
Wilson said she doesn’t understand how the case could have been dismissed given that the TCEQ had collected evidence showing high levels of toxic emissions emanating from facilities near the Cernys’ home.
In an August 2012 incident, TCEQ inspectors found that a Marathon processing facility was releasing more than a dozen compounds, including benzene, hydrogen sulfide, toluene, and xylene that exceeded the maximum emission rate allowed by Texas law. Marathon was cited for not promptly reporting the excessive emissions and for having a non-operating flair, according to the report.
“What more evidence does it take?” Wilson asked. “The state’s own regulatory agency found emissions levels that exceeded safety standards.”
William Anaya, a Chicago attorney who often represents the oil and gas industry, said the ruling was a “remarkable surprise.”
Although Anaya generally defends oil and gas industry practices as safe, he said that in this case the companies apparently didn’t try to prove they were operating safely under Texas regulations.
“What this tells anybody thinking about taking legal action is, forget it until you actually manifest an injury,” he said. “The impact is remarkable in the sense that plaintiffs can’t stop a public nuisance until there is actual injury.”
Both Anya and McGarity agree the Karnes County ruling will likely cause people in circumstances similar to the Cernys to think twice before taking the oil and gas industry to court.
But McGarity said he wasn’t surprised by the judge’s decision. “For a plaintiff to prevail in a case involving exposure to an airborne toxin they have a very hard row to hoe,” he said.
Finding reliable experts to testify that emissions are directly responsible—not simply that they could have caused the problems being alleged—sets a nearly insurmountable burden of proof on people, he said.
McGarity believes problems like the Cerneys and the Parrs experienced should be dealt with through tighter regulations, not the courts.
“We need a strong, unbiased regulatory system to protect the public from these emissions before they happen, before the damage happens, before there is a need to turn to the [courts],” he said.
In the courts there is no assurance of consistency in rulings or in the interpretation of the law, he said, and the fact that Bob and Lisa Parr won a similar case in April is a perfect example.
The Parrs sued an oil company alleging that emissions gave them nosebleeds, headaches and welts and had become such a nuisance that they could no longer enjoy their house. They were not held to the higher standard Judge Saxson said the Cernys would have to meet.
“How can you have cases with similar facts and such different outcomes?” McGarity said. “There is a certain amount of judgment and that implies there is a certain amount of subjectivity.”
Conscious and unconscious factors can influence court decisions, he said.
Judges are elected so they rely on campaign contributions. They sit in counties where the economy is flush with oil and gas money.
“It’s not an ideal justice system,” he said.
This story is part of an ongoing project by InsideClimate News and The Center for Public Integrity.
