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Town of Dish v. Atmos Energy Corp.

Supreme Court of Texas

May 19, 2017

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

          Argued March 1, 2017

         On Petition for Review from the Court of Appeals for the Seventh District of Texas


          Jeffrey V. Brown Justice.

         The petitioner energy companies own four natural-gas compressor stations and a metering station just outside the Town of Dish.[1] 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.


         The 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.

         Enterprise 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.

         The Town of Dish and eighteen of its residents sued the energy companies on February 28, 2011, alleging trespass and nuisance injuries.[2] 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 place."

         In 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."

         The 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 review.


         The 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 odors.

         At the 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.

         The 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.

         This 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 ...

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