The petrochemical industry along the Houston Ship Channel.

Houston, TX – It’s a prime example of what Congress had in mind when it decided not to entrust the enforcement of federal environmental laws solely to government regulators. Shortly after learning that Environment Texas and Sierra Club intended to file a federal lawsuit against ExxonMobil for a long history of illegal air emissions (see related story, 2013 Winter – Early Ruling Sought Against Exxon), Exxon officials did something that might sound crazy: they asked the State of Texas to start an enforcement action against…Exxon!

Why would a company beg an environmental agency to initiate enforcement against itself? Exxon hoped to avoid the stiff civil penalties and far-reaching injunctions available in a federal court citizen suit by securing a “slap on the wrist” from a friendlier authority: the Texas Commission on Environmental Quality (TCEQ).

Environment Texas has long been critical of TCEQ’s lenient treatment of corporate polluters. And with good reason: the deal Exxon struck with the agency gave the oil giant more than it could have hoped.

First, the order does not require Exxon to reduce air emissions in the future. Second, the order allows Exxon to pay a small, pre-set monetary penalty for future unauthorized emissions—enabling Exxon to make cost-benefit decisions about whether it is “worth it” to comply with its permits. Third, if Exxon pays the pre-set penalty TCEQ is barred from counting the illegal emissions as a violation—a significant benefit, because companies with poor compliance records are treated more harshly in other enforcement actions and during environmental permitting.

NELC attorneys believe that the law is clear that “non-enforcement” orders such as this one do not preclude citizen plaintiffs from seeking true enforcement in federal court, and the parties await a ruling on the issue by the U.S. District Court.