Tenth Circuit Affirms Dismissal of Pollution Case Against Energy Companies

The Tenth Circuit upheld a district court’s order dismissing a group of Oklahoma plaintiffs’ claims for strict liability, negligence, and negligence per se against several companies allegedly responsible for pollution stemming from the generation and disposal of coal-combustion waste and fluid waste from oil and gas drilling.  The plaintiffs alleged that “the transport, storage and disposal of waste materials from a coal-burning power plant and oil and gas drilling operations had resulted in millions of tons of waste material being transported and deposited in a huge pile at [a waste disposal facility] which presented serious public health and environmental risks.”

In yesterday’s ruling, the court also affirmed the district court’s decision to deny the plaintiffs motion to remand the case to state court.  First, the Tenth Circuit concluded that it had jurisdiction to review the district court’s denial of a motion to remand after entry of final judgment in a case brought under the Class Action Fairness Act (“CAFA”), even if no interlocutory appeal from the denial had been filed.  The court also determined that CAFA’s local controversy exception did not apply.

As for the strict liability, negligence, and negligence per se claims, each required the specific allegation under Oklahoma law that the alleged actions taken caused injury.  The court discounted plaintiffs’ allegations of “reasonable concern” of future injuries and vague statements of present harm such as the plaintiffs “suffer physical ailments, such as asthma and bronchial and nasal infections.”