NEW ORLEANS—NELC Attorneys are back in the 5th U.S. Circuit Court of Appeals for the second time in their long-running battle to hold ExxonMobil Corporation accountable under the Clean Air Act. The company is responsible for a staggering number of air pollution violations at its sprawling Baytown, Texas, oil refinery and chemical plant complex.
After initially ruling in favor of Exxon after a three-week trial—and then being overturned on appeal by the 5th Circuit— U.S. District Court Judge David Hittner found Exxon liable for a total of 16,386 days of violation. In April 2017, eight years after plaintiffs Environment Texas and Sierra Club first notified Exxon of this impending lawsuit, Judge Hittner levied a $19.95 million civil penalty against the energy giant for these egregious violations of the Clean Air Act.
The fine is the largest civil penalty imposed in an environmental “citizen suit,” a citizen-initiated enforcement mechanism Congress included in the Clean Air Act and other federal environmental laws beginning in the 1970’s. By comparison, this penalty is approximately 50 percent greater than the combined total of all the air pollution fines issued by the state of Texas against all sources from 2011 to 2016.
This time it is Exxon who is asking the appeals court to reverse Judge Hittner’s decision. Among other arguments, Exxon is seeking a ruling that would impose drastic limits on the ability of citizen plaintiffs to enforce the Clean Air Act and is claiming, yet again, that somehow it gained no economic benefit from its years of delaying the implementation of several costly pollution control projects.
In a 96-page legal brief submitted in April, NELC attorneys detailed the many reasons why Exxon has no legitimate grounds for its appeal.
“Exxon is asking the appellate court to ignore decades of court decisions affirming the right of citizens who live next to industrial facilities and breathe their illegal pollution to insist, simply, that these facilities obey the law,” explained NELC Senior Attorney Josh Kratka.
NELC’s legal brief also demonstrates that the trial judge was fully justified in imposing a large fine in this case.
Not only did the evidence show that Exxon profited by at least $14 million by waiting until it was sued to address many of its air pollution problems, but the company’s track record of illegal emissions— thousands of violations and 10 million pounds of respiratory irritants and hazardous air pollutants spread over eight full years—made this delay even more egregious.
Regardless of the final resolution of this appeal, the impact of NELC’s lawsuit on Exxon’s compliance record has been far reaching: The occurrence of the most serious violations has dropped by roughly 90 percent since the initiation of the litigation.
The appeals court is expected to schedule an oral argument on Exxon’s appeal for sometime this fall, with a final decision to be issued some months after.