Key Defensive Strategies to Common Law Claims (Collateral Estoppel Based Upon Prior Agency Action)

Michael Goldman
Connect with me
An accomplished litigator representing his clients in complex environmental disputes throughout the country.

Although rarely used, asserting collateral estoppel based upon prior agency action can be a highly effective strategy when defending an environmental lawsuit.  Collateral estoppel, or issue preclusion, precludes the re-litigation of identical issues of facts or law that were actually litigated and essential to the judgment in a prior suit. Once an actually litigated and essential issue is determined, that issue is conclusive in a subsequent action between the same parties.[1] It should be noted that unlike the broader res judicata doctrine, the collateral estoppel analysis does not focus on what could have been litigated, but only on what was actually litigated and essential to the judgment.  Res judicata, or claim preclusion, precludes relitigation of claims that have been finally adjudicated or that arise out of the same subject matter of a previous suit and which through the exercise of diligence could have been litigated in the prior suit.[2]

If you can’t explain it simply, you don’t understand it well enough.” Albert Einstein

In Lipsky v. Range Production Company, the defendant successfully argued that a finding by the Texas Railroad Commission that it was not the cause of alleged contamination collaterally barred a plaintiff’s subsequent civil claims.[3]  In that case, Range drilled two natural gas wells in 2009 near the Lipskys’ property.[4] According to the Lipskys, in the latter part of 2009, they began noticing problems with their water.[5] An environmental consultant later confirmed the presence of various gases in the Lipskys’ water well.[6]

In December 2010, the EPA issued an emergency order stating that Range’s production activities had caused or contributed to the gas in the Lipskys’ water well and that the gas could be hazardous to the Lipskys’ health.[7] In the order, the EPA required Range to, among other things, provide potable water to the Lipskys and install explosivity meters at the Lipskys’ property.[8] The federal government, acting at the request of the EPA, later filed a lawsuit in federal district court against Range, alleging that Range had not complied with requirements of the emergency order.[9]

The Texas Railroad Commission also investigated the contamination of the Lipskys’ well.[10] After calling a hearing and listening to testimony from several witnesses in January 2011, the Railroad Commission issued a unanimous decision in March 2011 that Range had not contaminated the Lipskys’ water.[11]

Despite this finding, on June 20, 2011, the Lipskys filed suit against several defendants, including Range, for claims related to alleged contamination of their water well that, according to the Lipskys, resulted from Range’s oil and gas drilling activities. [12]  In their original petition, the Lipskys claimed that the contamination had caused a water pump to malfunction and had caused the water to be flammable.[13] The Lipskys asserted causes of action for negligence, gross negligence, and private nuisance against Range.[14] The Lipskys alleged that Range’s drilling operations affected their water source, and they contended that they could no longer use their home as a residence.[15]

On August 18, 2011, Range filed a plea to the jurisdiction or, in the alternative, motion for summary judgment on the basis that plaintiff’s nuisance and trespass claims were an impermissible collateral attack on the Texas Railroad Commission’s Final Order which found that Range’s operations “have not caused or contributed, and are not causing or contributing to contamination of any domestic water wells.”  Range argued that the Lipskys were required to appeal the Railroad Commission’s decision in Range’s favor by filing suit in a Travis County district court.  The trial court agreed and granted Range’s motion on January 27, 2012. 

Key Points

  • Asserting collateral estoppel based upon prior agency action can be a highly effective strategy when defending an environmental lawsuit. 
  • Collateral estoppel, or issue preclusion, precludes the re-litigation of identical issues of facts or law that were actually litigated and essential to the judgment in a prior suit.
  • Once an actually litigated and essential issue is determined, that issue is conclusive in a subsequent action between the same parties. 
  • Unlike the broader res judicata doctrine, the collateral estoppel analysis does not focus on what could have been litigated, but only on what was actually litigated and essential to the judgment.
  • A Texas district court recently dismissed a plaintiff’s civil lawsuit on the basis that it was an impermissible collateral attack on a final agency action which concerned identical issues of facts and law which was the subject of the subsequent civil lawsuit.
Do you have questions? You can get our FREE ebook, Environmental Litigation: What Every Attorney and Environmental Professional Needs to Know, just by providing your name and email address at this link.  We promise your information won’t be shared with third persons. And if you’d like to speak with me about your case, I welcome your phone call at 972-850-8490. I look forward to speaking with you.
 

[1] See Bonniwell v. Beech Aircraft Corp., 663 S.W.2d 816, 818 (Tex.1984).

[2] Barr v. Resolution Trust Corp., 837 S.W.2d 627, 631 (Tex.1992). 

[3] Lipsky v. Range Production Company, et al., Cause No. CV-11-0798, in the 43rd Judicial District Court, Parker County, Texas. 

[4] In re Lipsky, 2013 WL 1715459, at * 1 (Tex. App.—Fort Worth, orig. proceeding).

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] See Original Petition in Lipsky v. Range Production Company, et al., Cause No. CV-11-0798, in the 43rd Judicial District Court, Parker County, Texas. 

[13] Id.

[14] Id.

[15] Id.

Be the first to comment!
Post a Comment