A Texas appellate court made a ruling in a clean air act/public nuisance case that included a statement that I have made to numerous clients  – – you have two independent obligations.  First, follow the regulations.  Second, make sure take reasonable steps to avoid causing injury to others.  Many people have trouble seeing those as independent obligations.  They think if you follow the regulations, you are OK.  In Scisco v Enbridge Gathering, L.P. 2015 WL 3463490 (Tex. App. June 1, 2015), the court said that one could be liable to pay damages for nuisance for air emissions that are permitted under the Clean Air Act.

The case was a civil suit in which property owners sought damages based on air emissions emanating from defendants’ energy production facilities.  The defendants moved for summary judgment on a number of grounds, including the claim that suits for common law nuisance based on air emissions were preempted by the Clean Air Act.  The defendants argued that if their air permit under the Clean Air Act allowed such emissions, State law could not require them to pay damages based on such emissions.  The court disagreed, reasoning that the obligation to obey the regulations and the obligation to avoid causing injury are separate, and compliance with one does not mean compliance with the other.

The court reversed a trial court order that had granted summary judgment.  Thus, it does not mean that there was a nuisance, or damage or any liability.  It merely means that the trial court must now examine the issues.  From a regulatory compliance perspective, however, the decision makes an important.  In some regulatory programs, a permit serves as a shield against common law actions.  In most, however, compliance with the law (even a law designed to protect people from harm) does not necessarily provide a defense to a civil action seeking damages for harm caused.