Following NELC’s successful lawsuits against Shell Oil Co. and Chevron Phillips Chemical Co. for illegal air emissions due to “upset” incidents, we continued our efforts to hold the fossil fuel industry accountable for poor air quality on Texas’s Gulf Coast by targeting the nation’s largest refining complex, ExxonMobil’s Baytown facility near Houston.
Due to equipment breakdowns, malfunctions, leaks, and operator errors, the Exxon complex routinely spewed unauthorized pollution into surrounding neighborhoods. We eventually proved that Exxon emitted over ten million pounds of illegal air pollutants – including known carcinogens, such as benzene and 1,3-butadiene, and known respiratory irritants, like hydrogen chloride and sulfur dioxide – during these “upset” incidents.
After losing an initial motion to dismiss the case, Exxon hired two new law firms and eight expert witnesses in preparation for what would has become a marathon 12-year (and counting) legal battle. Following a three-week trial in 2014, the trial judge acknowledged Exxon’s violations but declined to penalize the company. The Fifth Circuit of Appeals, however, identified numerous errors of law and abuses of discretion in the trial court’s decision, which it instructed the judge to correct. On remand, the trial judge ruled in the citizen plaintiffs’ favor, finding that Exxon had committed over 16,000 Clean Air Act violations and assessing a $19.95 million penalty – the largest civil penalty imposed by a federal court in an Clean Air Act citizen suit. Exxon appealed this second trial court decision, and, after the Fifth Circuit again found deficiencies in the trial court’s reasoning, the penalty was reduced to a still record-setting $14.25 million on remand. This third decision is currently under review in the Fifth Circuit.