Town of DISH, William Sciscoe, Denise Sciscoe, Eric Dow, Angela Dow, Robert Draper, Michelle Draper, John Harris, Kimberly Harris, Charles Pegg, Geraldine Pegg, Cody Petree, Alice Randall, Johnny Reames, Jeanette Reames, Margaret H. Wagner, Jane Wagner, Tim Zimmerman, and Tracy Zimmerman, Petitioners and Cross-Respondents,
Atmos Energy Corporation, Enbridge Gathering (North Texas) L.P., Energy Transfer Fuel, L.P., Enterprise Texas Pipeline, L.L.C., and Texas Midstream Gas Services, L.L.C., Respondents and Cross-Petitioners
March 1, 2017
Petition for Review from the Court of Appeals for the Seventh
District of Texas
Jeffrey V. Brown Justice.
petitioner energy companies own four natural-gas compressor
stations and a metering station just outside the Town of
Dish. Residents began complaining about the
noise and odor emanating from these facilities as early as
2006, but did not sue until 2011. We hold that the two- year
statute of limitations bars their claims. Accordingly, we
reverse the court of appeals' judgment and reinstate the
trial court's take-nothing judgment.
four compressor stations are adjacent to one another just
outside the Town of Dish and within a half-mile of the
residents' properties. Enbridge Gathering's
compressor station came online in February 2005; Atmos
Energy's in June 2006; Energy Transfer's in February
2007; and Texas Midstream's in May 2008. Together, these
independently owned compressor stations are often referred to
as the Ponder station.
Products completed its nearby metering station in June 2009.
Enterprise agrees limitations bars the residents' claims.
But Enterprise further contends that as its metering station
is not part of the Ponder station and its operations are
altogether different from those of the other energy
companies, it could not have contributed to the sources of
the residents' complaints.
Town of Dish and eighteen of its residents sued the energy
companies on February 28, 2011, alleging trespass and
nuisance injuries. The trial court granted a series of
summary-judgment motions brought by the energy companies on
various grounds, including limitations. Although residents
first complained about the Ponder station no later than 2006,
and all of the energy companies' compressors were online
by May 2008, the residents argue their claims did not accrue
until the Ponder station was "completely finished"
in the summer of 2009. (The residents maintain
Enterprise's metering station, which came online in June
2009, is part of the Ponder station.) According to the
residents' brief, it was after "the full force and
cumulative effect of all of the parts of the completed
[Ponder station] came to bear" that they "felt that
a nuisance and trespass was occurring and that a substantial
interference with their property use and enjoyment was taking
eighteen separate but mostly identical affidavits, the
residents attest they noticed a "significant change in
the noise being emitted" from the Ponder station from
September 2009 to early 2010. Before that, each resident
stated, "[T]he noises were occasionally loud and
sometimes annoying, but I did not feel they rose to the level
of a nuisance." The residents also stated that
"until disclosure of the findings of the Wolf Eagle
Report, " a September 2009 environmental study the
residents commissioned, they were unaware of the
"dangerous substances that were being emitted into the
air from the facilities."
court of appeals reversed the trial court on limitations,
holding that the energy companies failed to prove as a matter
of law that the residents' claims accrued before February
28, 2009. S.W.3d (Tex. App.-Amarillo 2015) (mem. op.). In its
view, the energy companies "failed to address the
synergistic effect their individual activities might have had
on the overall condition being addressed by [the
residents'] claims." Id. at . We granted
court of appeals' opinion addresses a host of issues we
do not reach because we dispose of the entire case on
limitations. But, because it factors into the
statute-of-limitations issue, we must address
Enterprise's argument that its metering facility does not
contribute to the Ponder station's alleged noise and
trial court, Enterprise filed a summary-judgment motion on
traditional and no-evidence grounds, arguing in part that no
evidence shows its metering station could be a source of the
residents' complaints. Enterprise claims its metering
station is a "closed-in system" that neither vents
gas nor creates noise that is audible offsite. The station
includes no compressors, diesel engines, or condensate tanks.
Instead, it "merely contains above-ground sections of
piping with access points for metering, cleaning, and
maintaining the pipeline." Moreover, it services
"sweet gas, " which "either does not contain
hazardous air pollutants or contains [them] in such minuscule
quantities that they are hardly cognizable." And because
sweet gas does not include certain potentially harmful
compounds, "the gas is not treated or odorized" and
so would not betray an odor "even if there were
emissions." And as the station has no pressure-relief
valve, "it does not vent natural gas into the atmosphere
during overpressure situations." Enterprise contends the
residents' summary-judgment response fails to address
this unique no-evidence summary-judgment ground.
trial court granted Enterprise's summary-judgment motion
but the court of appeals reversed, holding the residents'
summary-judgment evidence-specifically, the residents'
affidavits and the Wolf Eagle report-raises "at least a
scintilla of evidence that [the residents] were harmed by
noise, odors, light, and hazardous chemicals emanating from
[the energy companies'] facilities." ___S.W.3d at
___. The court of appeals then concluded that "the
allocation of responsibility" among the energy companies
is "a matter laden with fact issues." Id.
misses the point. Enterprise does not argue it emits less
than the other companies; it maintains its facility is
incapable of contributing to the complained-of conditions. In
the face of Enterprise's no-evidence point, the court of
appeals cannot simply conclude that some evidence supports
the claims against the companies as ...