NEW ORLEANS—ExxonMobil Corporation remains determined to skirt responsibility for illegally emitting millions of pounds of air pollutants into the communities surrounding its Baytown, Texas, petrochemical complex. Its last-ditch tactic is to take aim at the very ability of citizens to enforce the Clean Air Act.

Following the latest decision of the federal 5th Circuit Court of Appeals upholding a record $14.25 million Clean Air Act penalty secured by NELC on behalf of Environment Texas and Sierra Club (see page 1), Exxon is now seeking an “en banc” rehearing of the case before all 17 of the judges of the 5th Circuit. Exxon wants to avoid a financial penalty by persuading enough judges to undermine the role that Congress intended citizens to play in enforcing the nation’s core environmental laws.

This ploy is contrary to settled interpretations of the U.S. Constitution, the text of the Clean Air Act, and the procedures established by the 5th Circuit.

Convening the entire court for a rehearing is a time-consuming process reserved only for exceptional cases: those where the decision by a three-judge panel conflicts with settled Supreme Court or 5th Circuit precedent, or where an issue of exceptional public importance is being addressed for the first time. Neither of those situations exists here.

There is a substantial body of Supreme Court and 5th Circuit case law that both fully addresses the legal issues Exxon raises and clearly supports the panel’s ruling that thousands of Exxon’s violations were proven to be “fairly traceable” to the injuries suffered by the citizen groups’ members, thus giving them legal standing to seek a civil penalty for those violations.

In fact, if the court were to adopt Exxon’s proposal to severely restrict citizens’ ability to sue major polluters, a split between the 5th Circuit and other circuit courts on this issue would then be created—one of the very things en banc review is intended to prevent.

Article 3 of the U.S. Constitution limits the jurisdiction of federal courts to actual “cases or controversies”—in other words, cases in which the plaintiff has a personal stake in the outcome, not just a theoretical interest. The citizen groups’ members, who live, work, and shop next to Exxon’s Baytown
complex, clearly meet this requirement. That Exxon has had to resort to mischaracterizing the holdings of numerous court decisions throughout the country that apply Article 3 to environmental cases reveals the essentially political nature of its position, which is to protect corporate wrongdoers at the expense of the people they harm.