On July 16, the April term of court ended at the Georgia Court of Appeals. As is typical, the last few days of the Court’s term brought the most interesting decisions. This blog will be writing about some of them over the next few days.
In Georgia-Pacific Consumer Products, LP v. Ratner, Case No. A13A0455 (decided July 16, 2013), a divided court affirmed the certification of a class action brought on behalf of a collection of property owners who claimed that the emission of hydrogen sulfide gas from a Georgia Pacific mill had damaged their properties and interfered with their use and enjoyment of their properties.
The class certified by the trial court included the owners of 34 residential properties and 33 parcels zoned for industrial, agricultural and other uses in an area around the mill. The Court of Appeals affirmed the certification of the class. The issue that divided the Court was whether the plaintiffs had established that common issues of fact predominated over individual issues. The Court majority focused on liability issues. It noted that the issues related to Georgia-Pacific’s conduct and the effects of the alleged toxic emissions were common issues. The dissenters argued that the class members could not show that they had suffered the same injury. Each class member would have to make an individualized showing about how the hydrogen sulfide releases had affected their property. The dissenters maintained that the need for those individualized showings undermined the logic for certifying a class.
The Court was divided four judges to three. The fact that the class certification was affirmed gives property owners a potentially powerful weapon to use against environmental practices that may create nuisances. However, that the Court was so closely divided on the issue of class certification shows that the use of class actions in these circumstances will be subject to continued debate.