Exxon seeking to appeal ruling on class action

Stakes high, it states in filing

Exxon Mobil has asked a federal appeals court to let the oil giant immediately appeal a judge's decision granting class-action status to an Arkansas couple who sued after the company's Pegasus pipeline ruptured in Mayflower last year.

"Given the stakes involved -- shutting down a 650-mile pipeline and replacing it in its entirety, at great expense to the petitioners and great inconvenience to communities along the pipeline -- the Court should grant review," attorney Gary Marts Jr. wrote in a petition filed in the 8th U.S. Circuit Court of Appeals in St. Louis.

U.S. District Judge Brian Miller ruled in Little Rock on Aug. 12 that Arnez and Charletha Harper of Mayflower can legally represent people who currently own property that is subject to an easement for the Pegasus pipeline and that is physically crossed by the pipeline running from Corsicana, Texas, to Patoka, Ill.

The Harpers' lawsuit seeks either cancellation of the easements and removal of the pipeline from their property or a requirement that Exxon replace the pipeline.

The petition, filed Wednesday, was on behalf of Exxon Mobil Corp. and subsidiaries Exxon Mobil Pipeline Co. and Mobil Pipe Line Co.

Marcus Bozeman, one of the attorneys representing the couple, said Thursday that the Harpers will oppose the appeal request.

"We think that Judge Miller was exactly correct in his ruling," Bozeman said, noting plans to file a document in opposition to the request by Sept. 8.

Asked how many people would be covered by the class-action lawsuit, Bozeman said attorneys do "not know an exact number, but it would be in the thousands."

In the companies' petition, Marts argued that Miller's class-action order was "based upon a manifestly erroneous legal conclusion as to the fundamental question of whether the class has a ... claim" within the lower court's jurisdiction. "Federal law expressly pre-empts state safety standards for interstate pipeline transportation."

Marts said the Harpers' demand for breach-of-easement contracts attempts to impose a safety standard on the pipeline ... and demands its removal or replacement, which lies exclusively within" the U.S. Transportation Department secretary's authority.

"Though plaintiffs do not seek an award of money damages, the relief they seek poses the threat of extraordinary costs on petitioners," Marts wrote. Removing or replacing the entire pipeline "would be a massive undertaking that would undoubtedly consume several years and cost a considerable sum."

Marts contended that the district judge erred in the ruling, which granted class-action status to the Harpers but not to another couple who also had sought it.

"Reversible error occurs when a district court fails to undertake a rigorous analysis of the class certification factors" that should be considered, Marts wrote.

The district court's "entire analysis" of these factors "took less than five pages of its opinion," Marts said. "The lack of analysis is telling, too. The district court certified a class with no discussion of how it could identify its members."

Certification came despite evidence showing "that determining who currently owns property subject to an easement and actually crossed by the pipeline would require thousands of title searches and surveys," he added.

Miller's ruling said a class-action lawsuit was "preferable to the potential of hundreds of separate suits being filed against Exxon."

Also this week, the companies filed a motion asking the judge to reconsider his decision.

The pipeline cracked open between two houses on March 29, 2013, and spilled an estimated 210,000 gallons of thick crude in Mayflower's Northwoods subdivision, drainage ditches and a cove of Lake Conway.

Exxon Mobil shut down the 650-mile-long section of pipeline and the 211-mile section in Texas shortly after the rupture. The smaller segment of the pipeline resumed operation this summer.

The federal Pipeline Hazardous Materials Safety Administration has proposed that Exxon Mobil pay a total of $2,659,200 in fines for nine probable violations of safety regulations. Exxon Mobil has appealed.

There has been no decision on those issues, Exxon Mobil spokesman Christian Flathman and Safety Administration spokesman Damon Hill said.

State Desk on 08/29/2014

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