Texas Judge Sides With Exxon; NELC Appeals to Fifth Circuit

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.

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Groups Take On 10-Year-Long Gulf Oil Spill

A 20-foot-long boat (center) in the midst of the Louisiana oil slick at issue in the Taylor Energy lawsuit.

NEW ORLEANS — On March 27, NELC attorney Heather Govern pitched in to help a coalition of environmental groups who are trying to put a stop to a seemingly never-ending spill off the coast of Louisiana that has been leaking oil into the Gulf of Mexico for more than ten years. In a deposition, Govern questioned the methodology and conclusions of a Boston-area scientist hired to serve as an expert witness by the defendant, Taylor Energy Company, LLC.

The spill began after a seafloor mudslide damaged 28 oil wells and an offshore drilling platform in the aftermath of Hurricane Ivan in 2004. Since then, crude oil has been continuously leaking from a submerged site owned by Taylor Energy Company LLC.

In the absence of any effective response by the company or by government watchdogs, the Atchafalaya Basin-keeper, Louisiana Environmental Action Network, Lower Mississippi Riverkeeper, Waterkeeper Alliance, and other Gulf Coast Waterkeeper organizations filed a lawsuit against Taylor Energy for violations of the Clean Water Act and the Resource Conservation and Recovery Act.

The lawsuit, in addition to highlighting the secrecy surrounding Taylor Energy’s response to this multi-year spill, aims to prevent further environmental damage and harm to human health.

“The Taylor Oil spill is emblematic of a broken system, where oil production is prioritized over concerns for human health and the environment,” said Paul Orr, the Lower Mississippi River Keeper.

The lawsuit was filed in U.S. District Court in Louisiana in February 2012, after the Coast Guard denied two Freedom of Information Act requests seeking basic information about the cause of the leak, the amount of oil spilled, and efforts to stop it.

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Attorney Kevin Budris Joins NELC

Kevin Budris

BOSTON—In January, Kevin Budris joined NELC as a staff attorney, working out of our Boston office. After completing a two-year federal clerkship for Judge Janet Bond Arterton in the United States District Court for the District of Connecticut, Kevin was an associate in the litigation department at Ropes & Gray, LLP. During his time at Ropes & Gray, Kevin maintained an active pro bono environmental litigation practice, including appellate matters regarding the tax exempt status of conservation land in Massachusetts and priority habitat regulations under the Massachusetts Endangered Species Act.

Kevin graduated from Harvard University in 2004 and received his J.D. from the George Washington University Law School in 2010. He served as a student attorney with the law school’s Federal Criminal Appellate Clinic, representing indigent defendants on direct appeal from felony convictions.

In addition to his legal career, Kevin is an avid hiker, home brewer, and human companion to a Greater Swiss Mountain Dog, a three-legged cat, and an overworked pediatric resident.

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As Appeals Court Reviews Case, Exxon Continues Violating

Baytown Complex

As NELC attorneys work on an appeal, ExxonMobil continues to violate the Clean Air Act at its Baytown, Texas, refinery and chemical plant complex.

NELC filed suit against Exxon in 2010, and took the fossil fuel giant to trial in February 2014, in an effort to hold the company accountable for years of illegal pollution. Facing a potential civil penalty in the hundreds of millions for thousands of violations it did not dispute, Exxon nonetheless escaped scot free when Judge David Hittner refused to fine the company or to order any measures to improve its compliance record.

Since trial, Exxon has continued to unlawfully release dangerous pollutants into the air from is Baytown complex. Exxon has committed dozens of unauthorized “emission events,” including one in October 2014 that released over

200,000 pounds of sulfur dioxide, volatile organic compounds, hydrogen sulfide, nitrous oxide, and carbon monoxide. These releases were caused by a plugged line that led to a compressor trip—the same line in the same compressor that caused emission events discussed at trial.

In his ruling, Judge Hittner dismissed as too speculative the concern that the many fires and gas leaks at the Baytown Complex increase the risk of an explosion. Yet Exxon’s refinery in Torrance, CA, suffered just such an explosion this past February. In addition to injuring four workers, the blast spread so much ash and debris that children and teachers at 14 schools in the area were told to stay indoors to protect themselves from contaminated air.

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