2020 Environmental Real Estate Issues

The Supreme Court of Texas agreed to hear a case alleging that “herbicide drift” from aerial spraying damaged 111 cotton fields.
The trial court had struck the farmers’ causation experts and dismissed the case based on the pre-trial motion of the herbicide’s distributor. On appeal, an intermediate appellate court ruled the trial court should not have struck them. The Supreme Court has agreed to review the appellate court’s decision.

Appellate Court Saw No Analytical Gap
The appellate court acknowledged that the farmers’ experts “could not specifically trace the purported drift” of the toxic chemical to the farmers’ fields. However, the experts provided “a reliable scientific basis” for opinions that the farmers’ crops “were damaged by a large-scale aerial application” to the south, that observations indicated the application was done “in conditions that exacerbated drift,” and that the alleged application “was the only such large-scale application at the relevant time and place.” The appellate court stated it saw “no analytical gap in such a conclusion.”

Distributor Argues Exposure Evidence is Inadequate and Unreliable
In asking the Supreme Court to hear the case, the distributor argues that Texas law requires the farmers “to prove the actual toxic exposure for each injury alleged.” The distributor also asserts the causation opinion was unreliable because the farmers cannot show the distributor’s herbicide went to their fields (other herbicides contain the same toxic chemical), because chemicals not in the herbicide can cause the same type of damage to the farmers’ cotton, and because the farmers had no experts to identify the drift pattern that could have led to their exposure.

The Supreme Court has scheduled oral argument for October 26, 2022.