NEW ORLEANS—This summer, ExxonMobil moved into a new phase of its attempt to avoid responsibility for over 15,000 days of violation of the Clean Air Act. After two previous trips to the federal Fifth Circuit Court of Appeals and the imposition in March of the largest penalty levied in a Clean Air Act citizen suit, the petrochemical giant has now filed yet another legal brief in the Fifth Circuit, this time arguing that the court should throw some thirty years of constitutional law out the window.
Despite the district judge’s finding that the violations addressed in the NELC lawsuit had unlawfully released more than 10 million pounds of harmful chemicals into the surrounding air, the company argues that the U.S. Constitution bars neighboring citizens from enforcing the law unless they can prove specific harm from a specific violation. In other words, since a facility like Exxon’s is continually pumping pollutants into the air as part of its lawful operations, prospective citizen suit plaintiffs would need to distinguish the unlawful portion of pollution from the lawful—a tall order unless they devoted their lives to mastering and deploying air monitoring technologies.
As interpreted by the Supreme Court, the Constitution requires that a person bringing a lawsuit to stop some activity—such as unlawful pollution—show that he or she is “among those injured” by the activity. This helps ensure that the federal courts are limited to their constitutional role of hearing actual “cases or controversies,” rather than serving as a forum for debating the wisdom of congressional policy. Without a doubt, those who live near a polluting facility are bothered by the pollution and are among the injured. Thus, for the past thirty years, the federal courts have held that the constitutional requirement for a citizen enforcement suit can be satisfied by demonstrating harm that is associated with the type of pollutants being illegally discharged by the violator.
Now, Exxon is asking the Fifth Circuit to jettison this commonsense standard and replace it with a cumbersome violation-by-violation analysis that would require the injured citizen to become the equivalent of an environmental engineer and public health expert. Though Exxon claims to make this argument in service of the Constitution, its clear effect would be to to insulate the company from citizen suits—and from accountability.