19 October 2015
In a recent environmental contamination class action, Smith v. ConocoPhillips Pipe Line Co.,1 the US Court of Appeals for the Eighth Circuit reversed a Missouri district court’s order certifying a class of property owners who sought to recover under a nuisance theory for their subjective fears that nearby contamination might spread onto their property. By requiring evidence of actual injury or contamination, this decision provides important clarification of common-law nuisance doctrine. The Eighth Circuit’s decision is consistent with similar holdings from the Fourth and Fifth Circuits,2 as well as from the Michigan, Utah, Kansas, and Ohio Supreme Courts.3
This case involved a leak of leaded gasoline from a Phillips-owned underground pipeline in the 1960s in West Alton, Missouri. The leak was repaired, but the gasoline was not recovered. In 2002, Phillips purchased certain West Alton residents’ properties after tests revealed unacceptable levels of benzene. The homes were subsequently demolished and the properties remediated.
In 2011, other nearby landowners brought a putative class action alleging negligence and nuisance claims. The landowners sought monetary damages for diminution of property values and injunctive relief compelling remediation of the contaminated property. The US District Court for the Eastern District of Missouri granted in part and denied in part the property owners’ motion for class certification. The district court granted certification to property owners within 0.25 miles of the contaminated site on the negligence claim for damages and injunctive relief on the theory that “pockets of contamination” might exist.4
The Eighth Circuit reversed the district court’s decision because the landowners lacked evidence that their properties had actually been contaminated and thus failed to demonstrate a common injury. Relying on what the court called a “contemporary consensus reached by persuasive authority on the meaning of common law nuisance in the context of environmental contamination,” the court explained 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 proof.”
This decision should be useful in limiting the number of potential plaintiffs in environmental litigation. Indeed, given the strong line of authority to which it adds, it may deter the filing of “fear of contamination” claims at the outset.
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No. 14-2191 (8th Cir. Sept. 15, 2015). 2 Adams v. Star Entertainment
, 51 F.3d 417, 421-23 (4th Cir. 1995) (disallowing nuisance claims where alleged nuisance was not visible or “capable of physical detection from the plaintiff’s property”); Berry v. Armstrong Rubber Co
., 989 F.2d 822, 828-29 (5th Cir. 1993) (disallowing nuisance claims where there was no evidence of manufacturing waste actually invading plaintiffs’ property). 3 Adkins v. Thomas Solvent Co
., 487 N.W.2d 715, 717 (Mich. 1992) (disallowing nuisance claims despite “negative publicity resulting in unfounded fear about dangers in the vicinity of the property”); Smith v. Kansas City Gas Service Co
., 169 P.3d 1052 (Kan. 2007) (disallowing nuisance claims where leaked pollutants had not physically interfered with plaintiffs’ land); Walker Drug Co., Inc. v. La Sal Oil Co
., 972 P.2d 1238, 1244 (Utah 1998) (disallowing nuisance claims where plaintiff feared contamination of its property based on contamination of adjacent property); Chance v. BP Chemical, Inc
., 670 N.E.2d 985, 990 (Ohio 1996) (disallowing nuisance claims where there was concern about future contamination related to nearby deepwell waste disposal). 4
The court declined to certify a second proposed class seeking recovery for medical monitoring on the ground that there was no evidence of actual exposure to contaminants.