Class actions and environmental-contamination cases tend to mix like oil and water. As Judge Scheindlin of the Southern District of New York wrote back in 2002, “the overwhelming majority of state and federal courts have denied certification of environmental mass tort classes, even in single source cases.” In re MTBE Prods. Litig., 209 F.R.D. 323, 347–48 (S.D.N.Y. 2002). Since then, the Supreme Court of the United States has raised the bar for class certification twice. See Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013); Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011). Despite this overwhelming precedent, plaintiffs continue to petition courts for class certification in environmental-contamination cases.
One recent high-profile class petition came in Parko v. Shell Oil, Co., 2013 WL 4721382 (S.D. Ill. Sept. 3, 2013), rev’d, 739 F.3d 1083 (7th Cir. 2014), where the U.S. District Court for the Southern District of Illinois certified the class but a unanimous Seventh Circuit panel reversed. Together, the Parko opinions teach both plaintiff and defense counsel crucial lessons about litigating environmental-contamination cases under the recent Supreme Court directives. (Although the case was remanded for the taking of evidence, Judge Posner left little doubt that the varying levels of injury and damages (if any at all) precluded certification.Id.; see, e.g., Georgine v. Amchem Prods., Inc., 83 F.3d 610, 626–27 (3d Cir.1996), aff’d sub nom. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 628 (1997) (affirming decertification of asbestos personal-injury class); see also Fed. R. Civ. P. 23(b)(3) advisory committee’s note (1966) (cautioning that mass accidents do not lend themselves to class certification).)