NEW ORLEANS, LA—On May 27, the federal Fifth Circuit Court of Appeals handed National Environmental Law Center (NELC) attorneys a resounding victory, made possible by your support, by reinstating a major Clean Air Act enforcement suit against ExxonMobil Corporation. The suit concerns thousands of air pollution violations at the company’s Baytown, Texas, oil refinery and chemical plant complex, the largest such facility in the country.
In a 40-page decision, a unanimous three- judge appellate panel held that U.S. District Court Judge David Hittner “erred in [his] analysis of Exxon’s liability” and “abused [his] discretion” by refusing to assess a civil penalty for Exxon’s thousands of admitted violations of the law.
“After six years of litigation against one of the nation’s biggest polluters, justice has finally been served,” said Luke Metzger, director of Environment Texas, which sued Exxon with co-plaintiff Sierra Club. “The appeals court ruling confirms that even the world’s most powerful corporations must be held accountable when they violate our environmental and public health laws.”
After a three-week trial held in February 2014, Judge Hittner had ruled that citizen groups (as opposed to the government) did not have the authority to sue Exxon for thousands of violations of its Clean Air Act permits. Moreover, he wrote that even if they did, he would not penalize Exxon even one dollar.
“This decision is more than just a win against Exxon; it establishes significant legal precedents for future cases brought by people across the country who are suffering from illegal pollution,” explained NELC Senior Attorney Josh Kratka, who argued the case in front of the Fifth Circuit panel.
For example, the appeals court provided an appropriately broad definition of what constitutes “repeated” violations, thus clarifying the scope of citizen enforcement.
The court also held that the existence of many smaller violations does not offset civil penalties for more serious violations, as Judge Hittner had ruled. If anything, the Fifth Circuit reasoned, those additional violations increase Exxon’s culpability.
On July 11, Exxon filed a petition for “en banc” rehearing, in which it requested that the entire 15-judge appeals court reconsider the three-judge panel’s decision on two specific issues.
“ This decision is more than just a win against Exxon, it establishes significant legal precedents for future cases brought by people across the country who are suffering from illegal pollution.”
—NELC SENIOR ATTORNEY JOSH KRAKTA
First, Exxon wants a ruling that emissions from nearly 3,000 “upset” events at its refinery do not violate its Clean Air Act permit, even though the permit flatly states that such emissions are not authorized.
Second, Exxon believes that a deal it cut with Texas regulators should shield the company from civil penalties for its violations.
Once the rehearing issue has been resolved, the case will be “remanded” back to Judge Hittner for assessment of penalties based on the full number of violations that the appeals court found actionable.
