NEW ORLEANS—The largest and longest-running case NELC has litigated, a massive Clean Air Act lawsuit against ExxonMobil Corporation, was the subject of a rare occurrence on June 28: a second appellate oral argument before the same three-judge panel of the 5th U.S. Circuit Court of Appeals.
The arguments, presented for plaintiffs/appellees Environment Texas and Sierra Club by NELC Senior Attorney Josh Kratka, centered on whether the two environmental groups have legal “standing” under the U.S. Constitution to seek civil penalties against Exxon for 3,651 instances of illegal flaring and other unauthorized pollutant releases committed by Exxon over a period of eight years at its Baytown, Texas, oil refinery and chemical plant complex.
The ultimate issue is whether Exxon, after 13 years of litigation, will finally be ordered to pay the record $14.25 million penalty assessed by U.S. District Court Judge David Hittner. If so, this would be the largest civil penalty ever imposed in a citizen-initiated lawsuit to enforce the Clean Air Act.
At the June 28 hearing, held via Zoom, Kratka argued that Judge Hittner—in the third written opinion he produced in this case—made detailed factual findings that were more than sufficient to establish that each of the thousands of proven violations caused smoke, chemical odors, ground-level ozone, or respiratory impacts that were “fairly traceable” to injuries suffered by members of the groups who live, work, shop, or attend church directly in the “discharge zone” of Exxon’s emissions.
The purpose of the “standing” requirement, Kratka stressed, is simply to assure that the parties bringing a case in federal court have a concrete and personal stake in the controversy before the court, as opposed to those who would use the court to advance purely political or policy positions. Indeed, as NELC lawyers noted in their written arguments to the 5th Circuit, the U.S. Supreme Court has recently stated that one whose property is polluted by emissions from a factory “may of course proceed in federal court” against the operator of the factory. Exxon, on the other hand, has contended that the method for determining “traceability” set out by this 5th Circuit panel at an earlier stage of this appeal, and then painstakingly applied by Judge Hittner, is invalid. At oral argument, however, the company’s appellate lawyer could not explain why. When asked by one of the judges what standard should be applied, he had no clear answer; when asked by another judge what his “best case” was, he cited a 1992 Supreme Court decision that does not even address the issue of traceability.
A decision on Exxon’s appeal is expected before the end of the year.
