NEW ORLEANS—The federal Fifth Circuit Court of Appeals has dealt another setback to ExxonMobil Corporation in the company’s long- running battle to avoid responsibility for thousands of violations of the Clean Air Act at its Baytown, Texas, oil refinery and chemical plant complex.
In an opinion issued on July 29, 2020, a panel of three appellate judges rejected nearly every argument Exxon raised in its appeal of the record-setting $19.95 million penalty imposed by a federal trial court judge. The “crux of the dispute,” wrote Circuit Judge Gregg Costa for the panel, is whether plaintiffs Environment Texas and Sierra Club showed that each of the 16,386 proven violations was of a type or magnitude that was “capable of causing” the kinds of proven harms suffered by the groups’ members who live near the sprawling facility.
While the appeals panel found that the trial court’s findings established such “traceability” for a large number of violations, it nonetheless sent the case back to the trial judge for the “limited purpose” of determining which of the remaining violations were also capable of causing the plaintiffs’ injuries and whether there should be any adjustment of the penalty amount.
“We look forward to the next round of this litigation, in which we will point the trial judge to all the evidence we presented at trial that shows Exxon’s violations clearly contributed to the respiratory and other impacts suffered by people in the Baytown community and beyond,” said National Environmental Law Center Senior Attorney Josh Kratka.
Exxon’s 3,400-acre complex in Baytown is located about 25 miles east of downtown Houston. Tens of thousands of people live within three miles of the complex.
“We will also argue that the original penalty assessed by the district court continues to be fully justified by the extraordinary number and serious magnitude of Exxon’s years-long pattern of illegal emissions of a wide range of dangerous air pollutants,” Kratka added.
In rejecting other grounds for Exxon’s appeal, the appeals court found Plaintiffs’ members had sufficiently proved they suffered injuries from Exxon’s violations that are redressable by a favorable deci- sion, and that Exxon failed to prove its violations were excusable by the “affirmative defense” set up under Texas law.
The trial court may issue its new findings in early 2021.