Nuisance cases against energy companies in Texas, Pennsylvania and other areas with significant or developing oil and gas exploration



Publication May 2017

In Texas, Pennsylvania, and other areas with significant oil and gas activity, nuisance law has long been an amorphous, catch-all cause of action, cloaked in “mystery” and at times even referred to as “a sort of legal garbage can.”

Energy companies increasingly have been the target of nuisance suits alleging that drilling operations were a  nuisance to nearby residents, leaving some companies exposed to millions of dollars in damages for property damage, including “loss of use and enjoyment” of the property and even more-difficult-to-quantify damages for annoyance, inconvenience, and discomfort.

On June 24, 2016, the Texas Supreme Court attempted to clarify private nuisance law in Crosstex North Texas Pipeline, L.P. n/k/a Enlink North Texas Pipeline LP v. Gardiner.  Importantly, the Court in Crosstex held that private nuisance is neither a cause of action nor a description of a defendant’s conduct; rather, it is a legal injury related to the plaintiff’s use and enjoyment of property.

Additionally, the court clarified that:

  1. the crucial question on the issue of legal injury is unreasonableness of the effect on the plaintiff and not the conduct of the defendant; and
  2. the determination must be based on an objective standard of persons of ordinary sensibilities and not on the subjective response of any particular plaintiff.

But while Crosstex is perhaps the Texas Supreme Court’s most comprehensive discussion of private nuisance to date, it does not answer every question—nor could it—and it is not binding on courts outside of the state.

Among other open issues, the level of tortious conduct required of defendants (e.g., whether strict liability nuisance is available), the degree of causation evidence required, and the availability of damages for “annoyance and discomfiture” in certain jurisdictions all remain unclear.

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