HOUSTON—For the second time in this long-running legal battle, a federal judge in Houston has ordered ExxonMobil Corporation to pay a record-setting penalty for its history of illegal air pollution.
The amount, $14.25 million, ranks as the largest civil penalty ever imposed in a citizen-initiated lawsuit to enforce the Clean Air Act.
In an opinion issued on March 2, 2021, U.S. District Court Judge David Hittner found that the plaintiffs in the case, Environment Texas and the Sierra Club, had proven at trial that 3,651 instances of illegal flaring and unauthorized releases of pollutants from Exxon’s Baytown, Texas, refinery and chemical plant complex caused or contributed to smoke, chemical odors, flames, allergy-like symptoms, and respiratory impacts that were “fairly traceable” to injuries suffered by members of the groups living in the area.
These new, more detailed findings represent another major defeat in the case for Exxon and its scorched-earth legal strategy.
“Exxon has been fighting this case for 11 years, refusing to take responsibility for spewing 10 million pounds of illegal pollution into Texas communities, but we will see this through and hold this polluter accountable,” said NELC senior attorney Josh Kratka.
The new ruling came following a remand of the case back to the district court from the federal Fifth Circuit Court of Appeals.
Last July, a three-judge Fifth Circuit panel rejected most of the arguments Exxon had made in its appeal of the original $19.95 million penalty imposed in this case.
But the appellate court nonetheless sent the case back to Judge Hittner to determine just how many of the 16,386 Clean Air Act violations proven at trial could be directly tied to the harms identified in testimony by Sierra Club and Environment Texas members who live or work near the sprawling 3,400- acre facility.
Such a determination, ruled the appellate court, was necessary to confirm that the groups had “standing” under the U.S. Constitution to bring suit for Exxon’s violations.
In addition to finding that thousands of those violations were “capable of causing” the plaintiffs’ injuries, Judge Hittner flatly rejected Exxon’s “act of God” defense, finding that Exxon itself was responsible for the vast amounts of pollution released during the facility’s “startup” and “shutdown” around Hurricane Ike in 2008.
In enhancing his penalty assessment by 10 percent over and above the amount by which Exxon had profited by failing to prevent its violations, Judge Hittner pointed to the fact that, even looking only at the scaled-down number of “fairly traceable” violations, Exxon had still committed an average of more than one violation every single day from October 2005 through September 2013.
The case now heads back to the Fifth Circuit for further review.