by Max Brantley
Plaintiffs in a class action lawsuit over damage from the ExxonMobil pipeline break in Mayflower today filed a response to the oil company's request that the suit be dismissed.
They argued, among others, that physical damage isn't necessary to prove a nuisance claim in the case.
Nuisance is defined, under Arkansas law, as conduct by one landowner that unreasonably interferes with the use and enjoyment of the lands of another and includes conduct on property that disturbs the peaceful, quiet, and undisturbed use and enjoyment of nearby property.
Under long established Arkansas precedent, harm from the nuisance does not have to constitute direct physical damage. Instead, physical harm results when the use and enjoyment of one’s property becomes more difficult.
The famous Jennings Osborne Christmas lights case, which his display was ruled a nuisance, is among those cited.
But the suit does claim damage:
Plaintiffs’ land in this lawsuit was physically damaged by harmful airborne and waterborne contaminants, poisons, pollutants, and odors caused by the rupture of Defendants' unsafe and improperly maintained pipeline, which released poisons and carcinogens into the air, water and onto Plaintiffs' real property. The release and emission of toxic, carcinogenic and poisonous chemicals into the air, water and onto Plaintiffs' property from Defendants' Pipeline resulted in a nuisance interfering with Plaintiffs’ use and enjoyment of their property, giving rise to an actionable claim for damages and equitable relief under Arkansas law.
In reciting some of the history of the case, the plaintiffs gave an indication of where they'll be coming from relative to ExxonMobil's operation of the Pegasus pipeline:
The ExxonMobil Pegasus Pipeline (the “Pipeline”) was built in the 1940's and originally ran from Patoka, Illinois through Corsicana, Texas. The Pipeline, when built, had a thirty-year life span. (Am. Compl. ¶ 7). In recent years, as the now aged and worn-out Pipeline has entered into its seventh decade of service, Defendants knowingly breached their obligations to “maintain,” “repair,” “remove,” and “replace” its unsafe and improperly maintained Pipeline.
Defendants knew the Pipeline was improperly maintained but disregarded its unsafe condition before the rupture near Mayflower on March 29, 2013. Before that disaster, and almost sixty years after the construction of the Pipeline, Defendants had actually shut the pipeline down/ The Pipeline remained unused and dormant for several years
until Defendants made a corporate decision to reverse the direction of flow in the Pipeline. Defendants consciously decided, in an effort to maximize profits, to increase the capacity of the unsafe Pipeline by 50%, from 66,000 barrels per day to 99,000 barrels per day. At the time of Defendants’ corporate decision to pump Tar Sands southward
through Arkansas, Defendants knew the Pipeline was unsafe, outdated, and improperly maintained and was inappropriately equipped to handle its new purpose. Nonetheless, ExxonMobil continued operating the Pipeline at
excess capacity to maximize profits at the expense of safety knowing that the Pipeline, in its existing condition, was not capable of safely handling the transportation of hazardous, toxic and dangerous Tar Sands.
Consequently, due to the Pegasus Pipeline’s unsafe condition and Defendants’ corporate decision reverse the direction of flow so as to transport toxic and poisonous Tar Sands from Illinois to Texas at excess capacity through the Pipeline, a catastrophic Tar Sands spill occurred on March 29, 2013, in the community of Mayflower, Arkansas.
There's more, about the types of chemicals potentially released and resulting pollution including to Lake Conway. ExxonMobil and others have said lake pollution was limited to a cove of the lake that had been cordoned to present spread of oil.
Another filing defends the case as a class action. Here, the question of damage to Lake Conway becomes central to the class action claim and delves into the definition of heavy crude, bitumen, and tar sands. The motion says the plaintiffs have concrete standing — not a subjective claim about damage from fumes, for example — because of contact with Lake Conway, polluted by the pipeline break.