A view of the West Courtroom of the Fifth Circuit Court of Appeals in New Orleans


NEW ORLEANS—On May 15, NELC attorneys filed a 104-page opening brief with the federal Fifth Circuit Court of Appeals in New Orleans, urging the appellate court to set aside the ruling of a U.S. District Court judge who refused to order any sanctions against ExxonMobil despite clear evidence of years of Clean Air Act violations at the company’s Baytown, Tex., refinery and chemical plant complex.

One week later, on May 22, the City of Houston, the Harris County (Texas) district attorney’s office, and the public health group Air Alliance Houston filed a joint amicus curiae (friend of the court) brief in strong support of NELC’s position.

“As local government entities and public health advocates in the Harris County area,” they noted in their brief, “Amici have a unique perspective on the importance of this case to the health and well-being of the over 4 million residents of Harris County, which includes both the City of Houston and Exxon’s Baytown complex.”

NELC attorneys filed the lawsuit in 2010, on behalf of Environment Texas and the Sierra Club, alleging thousands of violations of air emission limits specified in the Clean Air Act permits issued to Exxon’s Baytown facilities. In December 2014, after a three-week trial held months earlier, U.S. District Judge David Hittner ruled that only 94—less than one percent—of Exxon’s violations were “actionable” under the Clean Air Act’s citizen suit provision.

Further, the judge declared that he would order no penalty or injunction against Exxon even if he had found all of the more than 18,000 days of violations in the record to have been actionable. Despite Exxon’s immense financial wherewithal—it is the world’s largest oil company—the judge determined that it would be “unduly burdensome on Exxon” to order it to comply with its permit limits, even though he also found that violations of those limits were likely to continue.

In their brief to the Fifth Circuit, NELC attorneys explained that Exxon’s violations were established by the undisputed factual record before the district court, which was drawn from Exxon’s own reports to state and federal agencies, and that the “actionability” of those violations could be ascertained simply by comparing the amounts of the various pollutants Exxon admitted releasing to the limits on those pollutants in the company’s permits.

NELC’s brief also details the serious- ness of many of Exxon’s violations, and the very real threat they pose to the public health.

The local amici parties agreed. “Studies commissioned by the City of Houston,” they wrote, “illustrate myriad ways that local air pollution, including toxic pollution, is harming human health. Many of Exxon’s violations released the very chemicals known to be responsible for this well-documented pollution.”

Amici also stressed to the Fifth Circuit that the 94 violations the district court did find to be actionable were alone enough to warrant a significant penalty: “Amici could find no other case where a court found so many harmful Clean Air Act violations but ordered no relief of any kind. Amici and people in the Houston-Baytown area whom they serve need this Court to reverse the district court’s decision and to ensure proper enforcement of the Clean Air Act’s requirements, which were designed to protect public health and safety.”

Exxon’s response is due to be filed in September.