NELC Senior Attorney Josh Kratka presents arguments at the ExxonMobil trial.

HOUSTON—On December 17, 2014 U.S. District Judge David Hittner announced his refusal to order any penalty or issue any other sanctions against ExxonMobil Corporation, despite the company’s admissions during a three-week federal court trial that it committed many thousands of violations of the federal Clean Air Act at its Baytown, Texas, refinery and chemical plant complex.

On behalf of Plaintiffs Environment Texas and Sierra Club, NELC attorneys have appealed the ruling to the U.S. Court of Appeals for the Fifth Circuit.

In an 86-page decision, Judge Hittner accepted Exxon’s claims that its 10 million pounds of illegal air pollution—consisting of carcinogens, other toxic pollutants, and respiratory irritants—did not represent “serious” violations of the Clean Air Act.

Judge Hittner also accepted Exxon’s argument that it should not be held responsible for failing to prevent more than 4,000 separate equipment malfunctions and other “upset” events since October 2005—an average of more than one per day, for eight years—each one of which resulted in the release of illegal pollutants.

“I read the court’s decision with a growing sense of shock, disappointment, and outrage,” said Luke Metzger, Director of Environment Texas. “By allowing Exxon to openly and repeatedly violate its Clean Air Act permits with impunity, this ruling not only puts public health and safety at risk, it creates the appearance of a two-tier system of justice in this country, in which the richest and most powerful defendants receive the most lenient treatment by the courts.”

At trial, our members of the environmental groups testified about their personal experiences living next to the Baytown Complex, describing how they have suffered through foul odors, poor air quality, and the fear that each massive flaring event signals a potential explosion. Expert witnesses for the groups included two engineers, who testified that Exxon has cut corners on preventive maintenance at the vast complex and has underreported the quantity of its emissions; a medical

“Judge Hittner’s ruling creates the appearance of a two-tier system of justice, in which the richest and most powerful defendants receive the most lenient treatment by the courts.”— Luke Metzger, Environment Texas Director

doctor with expertise in respiratory hazards and exposure to industrial air pollutants; and an economist, who testified that Exxon netted $90 million—the annual amount by which the company is under-spending on its efforts to prevent upset events at the Baytown complex—every 18 hours throughout 2012.

“Unfortunately, today’s decision continues a Texas tradition of turning a blind eye—or even worse, offering a helping hand—to the state’s worst polluters,” said Dr. Neil Carman, a former air inspector for the Texas Commission on Environmental Quality (TCEQ) and now the Clean Air Program Director for the Sierra Club Lone Star Chapter. “This very dangerous decision puts more people at risk.”

This is the NELC’s third federal lawsuit since 2008 targeting illegal air emissions in the Houston area. It follows earlier successful cases against Shell Oil Company for violations at its Deer Park refinery and Chevron Phillips Chemical Company for violations at its Cedar Bayou chemical plant.

Briefing on the issues raised by the groups’ appeal began in the Fifth Circuit in April.