Appeals court: Children not property owners in refinery suit

David Yates Sep. 4, 2007, 12:32pm

Justices on the Ninth Court of Appeals granted a request by Premcor and Motiva to have children removed as plaintiffs from a class action lawsuit filed against the oil giants.

On Aug. 31 the court conditionally granted a Writ of Mandamus submitted by the Premcor Refining Group and Motiva Enterprises in a suit that accuses the companies of releasing harmful pollutants. The defendants filed for the writ on July 12.

A Writ of Mandamus is issued by a superior court to compel a lower court to perform its statutory duties. In their request for the Writ, defendants Motiva and Premcor wrote that "the trial court clearly abused its discretion to dismiss the minor plaintiffs' claims for lack of standing."

The justices' delivered opinion says, "We conclude that Premcor has demonstrated both clear abuse of discretion by the trial court in denying the motion to dismiss for lack of standing, and the lack of an adequate remedy at law.

"Accordingly, we conditionally grant Premcor's petition for writ of mandamus and direct the trial court to vacate the April 26, 2007, order denying Premcor Refining Group, Inc.'s, and Motiva Enterprises, L.L.C.'s joint motion to dismiss for lack of standing. We are confident the trial court will follow this opinion. The writ will issue only if the court fails to comply. We also lift our stay of discovery in the trial court as of the date this opinion is filed."

The case stems from a personal injury suit filed back in October of 2004 by Crystal Faulk against Premcor, Motiva, Huntsman Petrochemical Corp. and several individual plant operators. The Port Arthur woman claimed the refineries were releasing more emissions than they were reporting, in turn causing her young son's asthmatic condition to worsen.

Since that time, the isolated complaint has blossomed into a massive class-action suit naming numerous plaintiffs. They include a host of children, categorized by the Port Arthur neighborhood in which they reside. Represented are groups from West Side, Marion Anderson, El Vista Roosevelt, Lakeside, Port Acres, East Side and others.

The suit now names more than three dozen additional defendants as well, including the Chevron, Texaco and Mobil oil companies.

The suit, which has been working its way through Judge Gary Sanderson's 60th District Court for years without a trial date, was spawned by a lawsuit filed by Texas Attorney General Greg Abbott against Huntsman Petrochemical in 1998.

According to a press release and the state's petition posted on the attorney general's Web site, Abbott charged Huntsman with frequent violations of the Texas Clean Air Act.

The company's lawyers contested the attorney general's allegations for nearly five years before finally settling with the state for $9 million, plus $375,000 in attorney's fees in March 2003. Huntsman admitted no guilt, opting to pay the penalty rather than continue endlessly litigating with Abbott.

"The defendant admits no liability and is settling this lawsuit due to the costs, risks and delay of litigation and to buy its peace," the settlement agreement wrote.

Yet Huntsman's high-priced "peace" was short-lived. The judgment attracted the attention of Jefferson County plaintiffs' lawyers, and a little over a year after entering into the $9 million agreement the company was back in court.

Faulk and her lawyers, Thomas J. Pearson and Cimron Campbell, drew heavily upon Abbott's findings, crafting a civil suit that mirrored the past allegations against Huntsman.

"In addition to the heroic attempt by the attorney general to control the operation of Huntsman Petrochemical, the federal government, acting through the office of the U.S. Attorney for the Eastern District of Texas, has also attempted to force (the company) to abide by the law and cease abusing the environment surrounding the Huntsman facility on Highway 73," the plaintiff's original petition stated.

The original suit dedicates 40 pages to the allegedly wrongful conduct of Huntsman Petrochemical and only two pages to the other six defendants.

However, by the time the mounting suit reached its pinnacle, the plaintiffs' seventh amended petition named 41 defendants, blanketing Golden Triangle oil refineries with the charge of purposely poisoning their neighbors while fraudulently concealing emissions.

"The cause of action in question arises from the unauthorized, un-permitted, and negligent releases of noxious fumes, vapors, odors and hazardous substances by the named defendants, compounded by fraudulent representations to regulators and to the public concerning such releases," the seventh-amended petition stated. "These toxic substances have unlawfully intruded and trespassed onto the residential properties occupied by the plaintiffs."

The refineries employ thousands of local residents and contribute millions of dollars to the Jefferson County tax rolls.

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