NEW ORLEANS—In an unusual move, all 17 active judges on the federal Fifth Circuit Court of Appeals heard oral arguments in May on Exxon’s latest attempt to avoid a record-setting $14.25 million civil penalty for committing over 16,000 Clean Air Act violations at its Baytown, Texas, oil refinery and chemical plant complex. No decision has yet been rendered.

Here’s how we got here:

NELC attorneys, representing plaintiffs Environment Texas and Sierra Club, had prevailed on appeals in this long-running case twice before, in front of two different three-judge panels of Fifth Circuit judges. The second appellate victory affirmed the Houston-based trial judge’s record penalty assessment.

Exxon then made an extraordinary and rarely granted request to have its most recent defeat reconsidered by the full “en banc” panel of Fifth Circuit judges. The court granted that request without explanation, requested yet more briefing by the parties, and scheduled oral arguments for May 16, 2023.

The packed New Orleans courtroom featured numerous Baytown residents who are neighbors of Exxon’s massive oil refinery and chemical plants. They made the trip from Texas out of concern for how the outcome of this case could affect their future health and well-being. Representatives of national and local environmental groups, other environmental attorneys, and members of the media, along with representatives of the chemical industry, also helped fill the viewing gallery.

For over an hour, the judges peppered lawyers for both sides with questions.

At issue was a novel legal theory Exxon concocted that, if accepted, would make it much more difficult for people living in highly polluted areas to prove they have a sufficient interest in a particular company’s compliance with its air pollution limits to give them legal “standing” to seek civil penalties large enough to deter future violations – even where, as in this case, they live virtually next door to ongoing violations committed by the largest petrochemical plant complex in the country.

In a potential boost to NELC’s request that the Fifth Circuit strictly adhere to established legal precedent on the standing issue, the U.S. Department of Justice sought special permission to appear in person at the hearing and was given time to argue in support of the rights of citizens to bring cases like this one.

In addition, Environment Texas and Sierra Club received the backing of four separate amicus (“friend of the court”) briefs, submitted by the City of Houston and a diverse range of environmental groups and legal scholars.

Exxon, not surprisingly, was supported by fossil fuel and chemical industry trade groups, to whom the court also granted permission to speak.

A decision is expected later this year.