Public Citizen Testimony Against SB 779 — Common Law Nuisance Claims
Public Citizen Testimony Against SB 779 -- Common Law Nuisance Claims
To: Chairman Bryan Hughes and the Members of the Senate Committee on State Affairs
CC: Sen. Angela Paxton, Sen. Paul Bettencourt, Sen. Brian Birdwell, Sen. Bob Hall, Sen. Adam Hinojosa, Sen. Mayes Middleton, Sen. Tan Parker, Sen. Charles Perry, Sen. Charles Schwertner, Sen. Judith Zaffirini
Via hand delivery and by email.
From: Adrian Shelley (ashelley@citizen.org) and Kathryn Guerra (kguerra@citizen.org), Public Citizen, 512-477-1155
Re: SB 779, nuisance claims – Public Citizen testimony in opposition
Dear Chairman Hughes and Members of the Committee:
On behalf of 30,000 members and supporters in Texas, Public Citizen appreciates the opportunity to testify against SB 779, relating to common law nuisance claims. We must oppose this bill because we believe the nuisance cause of action is an important tool in preventing certain undesirable activities that are not always well regulated by the state.
Agencies often refer people to nuisance actions as a remedy for their concerns.
SB 779 would eliminate nuisance actions for any permitted activity. As stated in the bill, no nuisance claim can arise from:1
- an action or condition that is authorized, licensed, approved, or mandated by a statute, ordinance, regulation, permit, order, rule, or other similar measure issued, adopted, promulgated, or approved by the federal government, a federal agency, a state, a state agency, or a political subdivision;
Our experience with this issue is in the environmental permitting space and specifically with the Texas Commission on Environmental Quality (TCEQ). The TCEQ has been referred to as a “reluctant regulator”2 and civil nuisance actions are an established right of the public that fills the gap left by the agency’s reluctance.
The agency often instructs complainants to document their observations of any nuisance conditions, including dust, noise, odors or other violations of a permit’s terms. With the agency’s limited resources and inability to be present when any given nuisance condition is occurring together with the subjective nature of experiencing and establishing the basis for a violation, the agency often inadequately resolves the nuisance.
When this happens, complainants continue to report the nuisance at the risk of being assessed a fee by the agency (SB 471, 88R) and being labeled a habitual complainant.
For example, at one of the state’s largest emitters of sulfur dioxide in Dallas, the GAF shingle factory, residents have documented nuisance odors for years, only to be ignored and deterred from reporting violations.3
In this and many other instances, a complainant’s only recourse is often to pursue common law nuisance claims to compensate for loss they have experienced.
The TCEQ’s permit procedures recognize the role of nuisance actions.
The TCEQ includes boilerplate language in its permitting documents that recognize the role of nuisance actions in protecting the public’s rights. See for example this response to comments from a water quality permit in August 2024:4
The draft permit does not limit anyone’s ability to seek legal remedies from the Applicants regarding any potential trespass, nuisance, or other cause of action in response to the proposed facility’s activities that may result in injury to human health or property or interfere with the normal use and enjoyment of property.
Or see this more general statement from the TCEQ Executive Director in May 2024 regarding a water quality permit:5
A TPDES permit does not limit the ability of nearby landowners to use common law remedies for trespass, nuisance, or other causes of action.
SB 779 would destroy this longstanding reliance by the TCEQ on nuisance actions to protect the rights of members of the public who live near polluting facilities.
Texas case law also establishes the public’s right to nuisance actions.
SB 779 attempts to override common law. As our allies the Greater Edwards Aquifer Authority (GEAA) point out in their own testimony against SB 779, Texas case law recognizes the public’s right to nuisance actions for activities at permitted facilities. To quote at length from their testimony:
In Berkley v. Railroad Commission of Texas (2009),6 the Amarillo Court of Appeals held that “securing a permit does not immunize the recipient from the consequences of its actions if those actions affect the right of third parties.”
In FPL Farming LTD v. Environmental Processing Systems, L.C. (2011),7 the Texas Supreme Court determined that “as a general rule, a permit granted by an agency does not act to immunize the permit holder from civil tort liability from private parties for actions arising out of the use of the permit. This is because a permit is a ‘negative pronouncement’ that ‘grants no affirmative rights to the permittee.’” The Court determined that an agency’s “determination of the propriety of the permit has no effect on the property of the permittee’s potentially tortious actions…a permit is not a get out of tort free card.” A permittee may have permission from the TCEQ to undertake an action, “but the consequences of acting under the permit have not been immunized.” The Texas Supreme Court concluded by stating:
“… the portions of the Texas Administrative Code governing the TCEQ do not shield permit holders from civil tort liability that may result from actions governed by the permit. This is consistent with our common law rule that the mere fact that an administrative agency issues a permit to undertake an activity does not shield the permittee from third party tort liability stemming from consequences of the permitted activity.”8
SB 779 goes much too far in eliminating nuisance claims arising from defective products.
This bill also seems to indemnify companies from manufacturing and distributing defective products. The bill eliminates nuisance claims arising from:9
(3) a product or a claim based on the manufacturing, distributing, selling, labeling, or marketing of a product, regardless of whether the product is defective.
Emphasis added. This is far too broad. It seems to apply, for example, whether the defective manufacturing was based on gross negligence, recklessness, or intentional misconduct. Although it is not clear to us what sort of nuisance claim might arise from a defective product, it seems contrary to public policy to indemnify companies regardless of their intention or mental state when producing a defective product.
In conclusion, we ask you not to pass SB 779 out of this committee. It eliminates an established right of the public in addressing concerns from polluting facilities. And it goes too far in indemnifying companies that manufacture defective products.