The United States Court of Appeals for the Fifth Circuit in New Orleans

NEW ORLEANS, LA—This February, NELC took the next step in our fight to hold ExxonMobil accountable for more than 18,000 days of Clean Air Act violations. On Feb. 2, we argued to a three-judge panel of the Fifth Circuit Court of Appeals that the trial judge’s decision in the case should be overturned.

The appeal, filed by NELC on behalf of Environment Texas and Sierra Club, came after U.S. District Judge David Hittner granted judgment for Exxon in December 2014.

Judge Hittner’s opinion acknowledged that Exxon’s Houston-area refinery and chemical plant complex had committed numerous violations of its Clean Air Act permits over an eight-year period, but declined to hold the company liable for those violations in this citizen enforcement suit. Further, in an unprecedented holding, Judge Hittner declared that he would not penalize Exxon even a single dollar, or order the company to take any corrective action, even if he had imposed liability for all the thousands of reported violations in the court record.

The legal and factual errors underlying this extraordinary ruling had been laid out in written briefs filed with the Fifth Circuit by NELC attorneys, and in an amicus curiae (friend of the court) brief filed by the City of Houston, the Harris County, Texas, Attorney, and the non-profit group Air Alliance Houston.

At the oral argument, NELC Senior Attorney Josh Kratka highlighted three fundamental errors made by the trial court.

First, noted Kratka, undisputed evidence presented at trial showed that Exxon had gained an economic benefit of more than $80 million by its long delay in making plant upgrades needed to achieve compliance. By Exxon’s own calculation, two improvement projects in particular would have prevented up to 500 tons of illegal air pollution. Judge Hittner’s failure to take these ill-gotten gains into account in his “no penalty” decision, Kratka argued, violates the Clean Air Act and constitutes reversible error.

Second, Kratka explained that the trial court erred in failing to enforce a pro- vision in Exxon’s refinery permit that prohibits “upset” emissions—those caused by unplanned events such as leaks and equipment breakdowns. Exxon has admitted that its refinery experienced thousands of unauthorized upset emissions, some lasting days or weeks, during the eight years covered by this case.

Third, Kratka pointed out that the trial judge had erred by failing to hold Exxon liable for several thousand additional violations: those it had reported, as required by law, in “Deviation Reports” submitted to regulatory agencies. At trial, Exxon’s own environmental man- ager testified that these reports do, in fact, detail permit violations.

In response, Exxon’s lawyer argued that the appeals court should defer to the oversight of the Texas Commission on Environmental Quality, which decided that no enforcement was needed for most of the violations at issue in this case. Fifth Circuit Judge Leslie Southwick, however, was skeptical. Wouldn’t that approach, he asked, undermine the role of citizen enforcement suits as envisioned by Congress?

An audio recording of the Feb. 2 argument can be found on the Fifth Circuit’s website, at: (case-sensitive)

Although there is no set timetable, a decision from the court of appeals is expected before the end of the year.