Voiding class action, spill-suit judge erred, filing says

A judge erred when he reversed his own decision and, without notice, dismissed a class-action lawsuit against Exxon Mobil, attorneys for landowners along the Pegasus pipeline argued in a document appealing that ruling.

"What had changed in two weeks?" attorneys for landowners Arnez and Charletha Harper and Rudy and Betty Webb, argued, "The facts had not."

The attorneys filed the document in the 8th U.S. Circuit Court of Appeals in St. Louis in response to Exxon Mobil's arguments in support of U.S. District Judge Brian Miller's March 2015 ruling. In that ruling, the judge overturned his August 2014 decision to grant class-action status to landowners whose property is crossed by the pipeline that extends from Corsicana, Texas, to Patoca, Ill.

Such status stood to affect thousands of landowners in Arkansas, Missouri, Texas and Illinois.

The Pegasus pipeline, built in 1947-48, cracked open in Mayflower's Northwoods subdivision March 29, 2013, sending tens of thousands of gallons of heavy crude oil into the neighborhood, drainage ditches and a cove of Lake Conway.

The oil giant shut down the entire, roughly 850-mile line after the accident. All but a 211-mile section running from Corsicana to Nederland, Texas, remains idle.

Exxon Mobil spokesman Ashley Smith Alemayehu sent an email late Monday saying the company doesn't comment on ongoing litigation.

Exxon Mobil has said previously it is pleased with the District Court's March 2015 decision and believes "it properly applied the law to the facts of this case."

But in the newest case filing Thursday, landowners' attorneys wrote that the judge had essentially "pivoted and reversed direction, for the first time, adopting Exxon's argument, regarding it as incorrect to refer to the Pegasus Pipeline as a 'single entity.'"

Though the facts remained the same, "the court now accepted, apparently as an article of faith, that 'Exxon's actions, or inactions, on one individual's land would not necessarily implicate the interests of other landowners,'" the attorneys added.

Further, Exxon's corporate policies and actions led to its misuse of the Pegasus and to contamination of all affected landowners' property, the landowners argued.

"Rather than operating in an isolation fashion, Exxon made a unified corporate policy decision to continue using the entire Pegasus Pipeline after twice its original intended life of 30 years," they wrote.

The company also consciously chose to transport "heavy tar sands [oil] rather than sweet Texas crude through the entire pipeline" and to reverse the product's flow, the attorneys said. Exxon Mobil further opted "to increase the pressure of the product flowing through the entire Pegasus Pipeline," the plaintiffs' attorneys said.

They also referred to the pipe's "antiquated cancer-causing asbestos coating."

"The sacrifice of the Pegasus Pipeline to a corporate purpose comes straight out of one place: the corporation," they said.

If Exxon Mobil considers such actions "reasonable, the showing must be made to a jury, not a district court judge faced with a Rule 23 [class-action] certification question," the attorneys said.

The plaintiffs' lawyers again accused the oil giant of tying their hands by "producing one corrupted document dump after filing its motion for summary judgment."

"Not only did Exxon prevent access to information, but the database produced by Exxon was corrupted," they wrote.

The landowners disputed Exxon Mobil's argument that the federal Pipeline Safety Act pre-empts the residents' common-law claims.

"The district court's reliance on Exxon's argument was misplaced and resulted in an error of law," they wrote. "A pipeline is not a segmented mechanism. While Exxon argues it can be viewed as made of of pieces, it is not those pieces that define its use.

"The use of a pipeline is to provide a single, uninterrupted delivery system. Alone, the links are not a pipeline but have to be put together to form a pipeline. The pipeline is all or nothing at all."

State Desk on 03/01/2016

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