Winter 2013: Vol. 15, No. 3

Early Ruling Sought Against Exxon

Houston, TX – NELC’s latest air pollution case on the Texas Gulf Coast is against ExxonMobil Corporation for extensive and longstanding violations of the Clean Air Act (CAA) at the company’s Baytown refinery and chemical plant complex, the largest industrial facility in the nation. This summer, NELC attorneys moved for summary judgment in the case, asking U.S. District Court Judge David Hittner to rule prior to trial that Exxon has committed more than 10,000 violations of the CAA since late 2005—violations already documented by Exxon.

Meanwhile, Exxon also moved for summary judgment, seeking a ruling that citizen enforcement of the CAA is unnecessary because the state and federal environmental agencies have purportedly addressed the violations. (See related article on 2013 Winter – NELC Attorney Named “Legal Hero”)

On Nov. 15, Judge Hittner listened to three hours of oral argument on the cross-motions. Between the time the motions were filed and the hearing was held, Exxon’s illegal emissions continued apace. In one event, a fire blazed out of control in a cooling tower at the Baytown refinery, and resulted in the emission of thousands of pounds of hazardous chemicals— further reinforcing the need for a speedy judgment.

Interview with Ed Friedman, Maine Activist

Ed Friedman lives within sight of historic Merrymeeting Bay, the coastal estuary into which Maine’s Kennebec and Androscoggin Rivers flow. The board chair of Friends of Merrymeeting Bay (FOMB) for the past 16 years, Ed has long been an advocate for the protection of native fish species in Maine. Ed is a member of both FOMB and Environment Maine, the plaintiffs in NELC’s current Atlantic salmon litigation in Maine (see related article on 2013 Winter – Atlantic Salmon Cases Trigger Regulatory Action in Maine).

How does today’s salmon population compare to historical levels in Maine?
Taking the Kennebec and Androscoggin Rivers as examples, historic salmon runs numbered in the hundreds of thousands. This year, the Maine Department of Marine Resources recorded five adult salmon returning to the Kennebec, and only one returning to the Androscoggin. The contrast can’t get much more graphic than this.

Why is protecting salmon important?
Salmon are considered an iconic species for the reasons of superlative taste and historic population size, as well as their energy and fight when hooked on a line. At or near the top of the food chain in their spawning rivers, they could be considered an “apex predator.” As is the case with any species high on the food chain, if we can protect that species and its habitat, we by default protect most species lower on the chain. Moreover, the salmon is second only to the American eel in terms of how far up a watershed it will travel to spawn, and all habitat and species downstream will receive increased protection if we can restore the salmon throughout its historical range.

What role do these lawsuits play in efforts to bring back the salmon?
Without these cases, there is little doubt the salmon would be gone. We are in a sad time now where regulatory agencies, both state and federal, simply cannot or will not vigorously enforce the laws (such as the Endangered Species Act) designed to give salmon and other species the protection they deserve. It took legal action by FOMB and others to get the salmon on these two rivers listed as endangered, and I am certain that the current lawsuits are instrumental in persuading the power companies to improve fish passage at their dams, and in prompting the fish and wildlife agencies to develop salmon recovery plans. Too often, the agencies respond only to pressure. It’s our job to keep the pressure on.

EPA Slams BP

New Orleans—NELC’s mission is to represent the public’s interest in a clean and healthy environment by bringing environmental scofflaws to justice when government regulators do not.

Thus, on May 28, 2010, when millions of gallons of oil continued to gush from BP’s Deepwater Horizon drill site in the Gulf of Mexico and create the largest oil spill in U.S. history, NELC took legal action.

On behalf of Environment America, the Gulf Restoration Network, and the Louisiana Environmental Action Network, NELC sent a 60-day notice of intent to sue BP for violating the Clean Water Act (CWA) by discharging oil into the Gulf, failing to accurately measure the flow, and failing to remove the oil from the waters.

After intensive meetings with environmental groups, lawyers, and government regulators, NELC determined that in this case its services would not be needed. Private attorneys were representing the interests of those directly hurt by the spill; environmental groups were focused on endangered species, damage to natural resources, and the out-of-control oil leasing process; and the federal government was preparing the biggest Clean Water Act enforcement case ever seen.

Thus far, the government has imposed a record $4.5 billion in criminal fines and penalties against BP, $1.4 billion in fines against partner company Transocean, and manslaughter prosecutions are under way. NELC applauds EPA’s efforts thus far, while awaiting a CWA civil penalty against BP that may reach $20 billion to reflect the enormity of the damage caused.

Sweetheart Deal for ExxonMobil Shows Need for Citizen Suits

Houston, TX – It’s a prime example of what Congress had in mind when it decided not to entrust the enforcement of federal environmental laws solely to government regulators. Shortly after learning that Environment Texas and Sierra Club intended to file a federal lawsuit against ExxonMobil for a long history of illegal air emissions (see related story, 2013 Winter – Early Ruling Sought Against Exxon), Exxon officials did something that might sound crazy: they asked the State of Texas to start an enforcement action against…Exxon!

Why would a company beg an environmental agency to initiate enforcement against itself? Exxon hoped to avoid the stiff civil penalties and far-reaching injunctions available in a federal court citizen suit by securing a “slap on the wrist” from a friendlier authority: the Texas Commission on Environmental Quality (TCEQ).

Environment Texas has long been critical of TCEQ’s lenient treatment of corporate polluters. And with good reason: the deal Exxon struck with the agency gave the oil giant more than it could have hoped.

First, the order does not require Exxon to reduce air emissions in the future. Second, the order allows Exxon to pay a small, pre-set monetary penalty for future unauthorized emissions—enabling Exxon to make cost-benefit decisions about whether it is “worth it” to comply with its permits. Third, if Exxon pays the pre-set penalty TCEQ is barred from counting the illegal emissions as a violation—a significant benefit, because companies with poor compliance records are treated more harshly in other enforcement actions and during environmental permitting.

NELC attorneys believe that the law is clear that “non-enforcement” orders such as this one do not preclude citizen plaintiffs from seeking true enforcement in federal court, and the parties await a ruling on the issue by the U.S. District Court.