A successful defense of a mass environmental tort case frequently turns on class certification.  In Holly Lloyd v. Covanta Plymouth Renewable Energy, LLC, No. 20-4330, 2022 WL 407377 (E.D. Pa. Feb. 10, 2022), a federal district court denied a motion to certify a class of neighboring residents complaining about noxious odors from a municipal waste incinerator.  In so holding, the court’s decision set out key strategies and considerations for defeating class certification in future mass environmental tort cases. 

The putative class action lawsuit related to a municipal waste incinerator operating in the Philadelphia suburbs.  The named plaintiff, Holly Lloyd, complained that the incinerator’s odors were interfering with her use and enjoyment of her property and diminishing her property value.  She asserted claims against the incinerator for private and public nuisance. 

Lloyd sought to certify under Rule 23(b)(3) of the Federal Rules of Civil Procedure a class consisting of “all owners/occupants and renters of residential property within a 1.5-mile radius” of the incinerator, an area that encompassed approximately 7,900 households.  To have this class certified, Lloyd needed to satisfy the familiar four-part test for class certification under federal law, i.e. numerosity, commonality, typicality, and adequacy of representation.  Because she sought certification under Rule 23(b)(3), Lloyd also needed to establish that common questions of law and fact “predominate” over questions affecting individual class members, and that the class action mechanism is “superior” to other available means to resolve the dispute. 

The court denied Lloyd’s motion for certification because she failed to satisfy the numerosity, predominance, and superiority requirements for certification under Rule 23(b)(3):

Numerosity.  In support of her motion for certification, Lloyd had argued that the members of the class were numerous based on the following:  (i) there were approximately 7,900 households within the proposed class area; (ii) her counsel had obtained 29 survey responses from neighboring residents complaining about noxious odors from the incinerator; (iii) between 2016 and 2020, “hundreds” of complaints were submitted to the Pennsylvania Department of Environmental Protection (“DEP”) concerning odors purportedly from the facility; and (iv) there existed a Facebook Group with hundreds of members that Lloyd claimed was devoted to discussing odor emissions from the facility.

Notwithstanding the foregoing evidence, the court held that Lloyd had failed to establish that “there are in fact sufficiently numerous parties” for a class action, a threshold that courts typically set at 40.  The court first rejected Lloyd’s assertion that the putative class consisted of the 7,900 households within the 1.5-mile radius because the defendant had submitted uncontroverted expert evidence that odor impact was not uniform within the class area but varied widely depending on proximity, wind, and topography.  The court also found significance in 42 affidavits that the defendant had submitted in opposition to certification from residents within the proposed class radius that had not noticed or been impacted by noxious odors.  The court also refused to rely on the “hundreds” of complaints to DEP because the names and locations of the complainants had been redacted and the sources of the odors were not verified.  The court reached a similar conclusion regarding the membership of the Facebook Group.  “There is no way of knowing how many members of the group reside within 1.5 miles of [the] facility,” let alone how many members had in fact experienced odor impact from the facility, the court explained.  That left Lloyd with a proposed class consisting of the 29 survey respondents who complained of odors, a number that the court found was insufficient to satisfy the numerosity requirement.

Predominance/Superiority.  While the court acknowledged that some elements of Lloyd’s nuisance claims could be established on a class-wide basis, the court ultimately held that “individualized determinations of causation, fact of damage, and extent of injury … would overwhelm any common issues” shared among class members, making the proposed class unworkable.  The court explained that “[m]ass environmental tort cases seldom satisfy the predominance requirement of Rule 23(b)(3)” because “causation and extent of injury must be decided on a property-by-property basis.”  This case was no different in the court’s view.  Lloyd’s suit involved multiple and varying instances of exposure across a four-year timeframe, and the defendant had submitted uncontroverted evidence of “other potential sources of malodor affecting the class area.”  The court also relied on the defendant’s expert evidence that odor impact varied from property to property in the proposed class radius such that some class members might not have experienced any injury at all.  The court therefore found that Lloyd had not established predominance or superiority under Rule 23(b)(3).

Assuming the court’s decision is upheld in any appeal, this decision will stand as important precedent for challenging class certification in future mass environmental tort cases, especially odor cases.  

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