Harris County Courthouse

The First Court of Appeals has rejected an effort to use the Texas Citizen Participation Act to dismiss a lawsuit filed against a railroad for soil and groundwater contamination.

In Union Pacific Railroad Company v. Chenier (No. 01-21-00073-CV), 13 residents of the Fifth Ward and Kashmere Gardens neighborhoods in Houston sued the railroad on various theories of liability for allegedly failing to disclose the risks of exposure to creosote and other toxic contaminants used at a nearby facility that treated railroad ties. The plaintiffs sought $50 million in damages for past and future medical expenses, past and present physical impairment, past and present pain, and property damages.

The railroad moved to dismiss the residents’ property damages claim based on theories of negligence, negligence per se, negligent misrepresentation, and nuisance (the TCPA exempts legal actions seeking personal injury damages or common law fraud claims). It alleged two grounds for dismissal based on the exercise of rights of speech and petition, to wit: (1) the railroad’s 2014 presentation to the residents of restrictive covenants requesting that they agree not to use their groundwater; and (2) the residents’ claims implicated the railroad’s right to petition based on its communications with the residents during its permit renewal process in 2019. The trial court denied the TCPA motion. The railroad appealed on an interlocutory basis to the court of appeals.

The court of appeals’ analysis concluded that the railroad had failed to carry its burden of establishing that the residents’ suit was based on or in response to its right of free speech. The railroad argued that a statement made in the restrictive covenants to the effect that the railroad “continued to represent to community residents that there was no threat of contamination or human exposure” was a communication “on a matter of public concern,” and thus protected by TCPA.

In reply, the court of appeals stated that the residents’ suit was based not the railroad’s communication, but rather on its conduct—failure to adequately warn of the dangers of exposure to creosote and other toxic contaminants. In so finding the court of appeals relied on the 2019 amendments to the TCPA that required a tighter nexus between the plaintiff’s claims and the defendant’s exercise of one of the three protected First Amendment rights. The court of appeals then rejected the railroad’s right of petition claim, holding that while communications between the railroad, the residents, and the TCEQ during the permit renewal process were “related to” the residents’ claims, the claims were not “based on” the communications as required by the amended TCPA. The railroad’s motion for rehearing was filed last Friday.

This is among the first appellate decisions we have seen interpreting the 2019 TCPA amendments with respect to the required nexus between the communications for which movants claim protection under the TCPA and the basis for the plaintiff’s lawsuit. Given the ubiquity of TCPA motions prior to the 2019 amendments, we can expect the post-amendments jurisprudence to develop fairly quickly. Stay tuned.

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