ExxonMobil’s Baytown plant from the Houston Ship Channel

Houston, TX – On April 2, NELC attorney Josh Kratka, paralegal Mary Rock, and co-counsel David Nicholas were in federal district court in Houston for a hearing on ExxonMobil’s motion to throw out NELC’s Clean Air Act enforcement suit. The lawsuit aims to stop Exxon from illegally emitting carcinogens, respiratory irritants, smog-forming chemicals, and other hazardous air pollutants from its refinery and chemical plant complex in Baytown, Texas. (You can read more about what it’s like to live near ExxonMobil’s Baytown plant in a related article on 2013 Summer – Interview: Illegal Air Emissions Make ExxonMobil a Bad Neighbor.)

The hearing focused on Exxon’s argument that citizens should be forbidden from bringing suit when state or federal agencies have already addressed—or even when they have decided not to address— the violations. Exxon derisively called NELC’s lawsuit a case of “second-guessing.”

But Nicholas countered that the agencies’ weak enforcement efforts exacerbate the problem. He noted that Texas has created a regulatory environment in which companies like Exxon feel free to violate air pollution laws, and that agency oversight has not kept Exxon from emitting millions of pounds of illegal pollutants into the air.

Just one day after the hearing, U.S. Magistrate Judge Stephen Smith issued a recommended ruling flatly rejecting Exxon’s key arguments, and confirming that “citizen suits were intended to be a mechanism for the public to second-guess the adequacy of an agency’s response to Clean Air Act violations.” And on May 2, U.S. District Judge David Hittner adopted Smith’s decision as a final order of the court.

The court also found that, contrary to Exxon’s argument, NELC has provided evidence of repeated, ongoing violations, as is required of citizen plaintiffs.

Finally, the ruling confirmed that plaintiffs Environment Texas and Sierra Club have legal standing to sue—even over permit violations that do not directly involve illegal emissions. Although Exxon had characterized these as mere “paper” violations, Judge Smith noted that “poor operation and maintenance practices may lead to future emis- sions or other dangerous events such as explosions.”

NELC’s litigation team is now pre-paring for trial.