Federal Appeals Court Rules Against Exxon

Exxon refinery and chemical plant complex on the Houston Ship Channel.

NEW ORLEANS, LA—On May 27, the federal Fifth Circuit Court of Appeals handed National Environmental Law Center (NELC) attorneys a resounding victory, made possible by your support, by reinstating a major Clean Air Act enforcement suit against ExxonMobil Corporation. The suit concerns thousands of air pollution violations at the company’s Baytown, Texas, oil refinery and chemical plant complex, the largest such facility in the country.

In a 40-page decision, a unanimous three- judge appellate panel held that U.S. District Court Judge David Hittner “erred in [his] analysis of Exxon’s liability” and “abused [his] discretion” by refusing to assess a civil penalty for Exxon’s thousands of admitted violations of the law.

“After six years of litigation against one of the nation’s biggest polluters, justice has finally been served,” said Luke Metzger, director of Environment Texas, which sued Exxon with co-plaintiff Sierra Club. “The appeals court ruling confirms that even the world’s most powerful corporations must be held accountable when they violate our environmental and public health laws.”

After a three-week trial held in February 2014, Judge Hittner had ruled that citizen groups (as opposed to the government) did not have the authority to sue Exxon for thousands of violations of its Clean Air Act permits. Moreover, he wrote that even if they did, he would not penalize Exxon even one dollar.

“This decision is more than just a win against Exxon; it establishes significant legal precedents for future cases brought by people across the country who are suffering from illegal pollution,” explained NELC Senior Attorney Josh Kratka, who argued the case in front of the Fifth Circuit panel.

For example, the appeals court provided an appropriately broad definition of what constitutes “repeated” violations, thus clarifying the scope of citizen enforcement.

The court also held that the existence of many smaller violations does not offset civil penalties for more serious violations, as Judge Hittner had ruled. If anything, the Fifth Circuit reasoned, those additional violations increase Exxon’s culpability.

On July 11, Exxon filed a petition for “en banc” rehearing, in which it requested that the entire 15-judge appeals court reconsider the three-judge panel’s decision on two specific issues.

“ This decision is more than just a win against Exxon, it establishes significant legal precedents for future cases brought by people across the country who are suffering from illegal pollution.”


First, Exxon wants a ruling that emissions from nearly 3,000 “upset” events at its refinery do not violate its Clean Air Act permit, even though the permit flatly states that such emissions are not authorized.

Second, Exxon believes that a deal it cut with Texas regulators should shield the company from civil penalties for its violations.

Once the rehearing issue has been resolved, the case will be “remanded” back to Judge Hittner for assessment of penalties based on the full number of violations that the appeals court found actionable.

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NELC Asks Appeals Court to Order Stronger Rules on Cooling Water Intake

Mystic Generating Station, which withdraws cooling water from the Mystic River in Everett, Mass.

NEW YORK, NY—On May 20, various parties filed their challenges to the cooling water intake regulation promulgated by the U.S. Environmental Protection Agency (EPA) in 2014. The regulation was issued under the Clean Water Act (CWA), which directs EPA to set national standards requiring power plants and manufacturing facilities to use the “best technology available” to reduce the environmental impacts of drawing in water from water- ways to cool their machinery—a process that kills billions of fish and other aquatic life each year.

The challenges—submitted by a broad collation of environmental groups and three different sets of industry groups— were filed in the U.S. Court of Appeals for the Second Circuit.

NELC Litigation Director Chuck Caldart, working with attorneys from Sierra Club and Riverkeeper, argued on behalf of the environmental petitioners that EPA violated the CWA in two principal ways.

First, the agency failed to set national standards, but instead left the regulation of cooling water intake to case-by-case determinations made by state agencies. This heavily favors the regulated industries, whose superior financial and political resources often overwhelm even the best-intentioned state personnel.

Second, EPA refused to require these industries to utilize closed-cycle cooling, a widely-available and affordable technology that EPA itself acknowledges “is indisputably the most effective technology” at reducing death and injury from cooling water intake.

The environmental petitioners also argued that the government violated the Endangered Species Act (ESA) by failing to adequately protect the scores of ESA-protected species that are harmed by cooling water intake at these facilities.

The principal industry argument, on the other hand, is that the ESA is not applicable at all, despite the fact that the administrative record is replete with evidence of the “significant” negative effects of cooling water intake on a host of species under ESA jurisdiction, among them whales, sea lions, seals, sea turtles, and salmon.

The government’s response to these challenges is due to be filed this fall.

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ArcelorMittal Agrees to Comprehensive Settlement Talks in Clean Air Act Case

NELC cooperating attorney Dave Nicholas and NELC attorneys Josh Kratka and Heather Govern at the inspection of ArcelorMittal’s Monessen Coke Plant.

PITTSBURGH, PA—The world’s largest steel company, Luxembourg-based ArcelorMittal, has agreed to engage in formal settlement negotiations in NELC’s lawsuit charging the company with hundreds of Clean Air Act violations at its Pittsburgh-area coal coke plant.

Shortly after the lawsuit was filed in federal court in Pittsburgh in October 2015, NELC Attorneys joined plaintiff PennEnvironment in reaching out to the U.S. Environmental Protection Agency (EPA) and the Pennsylvania Department of Environment Protection (PaDEP) regarding the vast scope of the environmental problems besetting the recently restarted Monessen Coke Plant.

A wide variety of pollution control problems at the plant are causing sootfall, acidic gases, and noxious odors to plague residents of numerous surrounding towns.

This past spring, ArcelorMittal’s attorneys filed a formal “answer” in court to PennEnvironment’s complaint, in which the company admitted to a large proportion of the alleged violations. The parties then agreed to put litigation of the case on hold to allow time for additional investigation of the facility’s problems and settlement negotiations.

In May, NELC attorneys Heather Govern and Josh Kratka went on site to inspect critical areas of the facility along with our consulting engineer, an expert in the operation of coke plants.

Now, actual settlement negotiations have begun. In late July, officials and engineers from EPA and PaDEP joined NELC attorneys in the first settlement meeting with the company. The goal of the negotiations is to develop solutions to bring the plant into sustained compliance with Clean Air Act emissions standards and limitations, and to embody those solutions in a binding agreement.

A section of the coal coking process at ArcelorMittal’s Monessen Coke Plant.
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NELC Nears Settlement to End Toxic Runoff

GLASTONBURY, CT—The illegal levels of zinc, lead, and copper that Connecticut Galvanizing Corporation has been discharging into Connecticut’s Salmon Brook has long been a concern to Joe Damon. “The brook flows through my back yard,” he notes, “and the effect of these toxic pollutants on local wildlife is an affront to the natural beauty of the area.”

Now, following two long days of negotiations in June, NELC attorneys are close to reaching a settlement agreement with Connecticut Galvanizing that would bring an end to these unlawful discharges.

NELC attorney Kevin Budris filed suit against the company in January on behalf of Environment Connecticut and Toxics Action Center, alleging more than two thousand violations of the Clean Water Act.

Since that time, NELC attorneys have worked with a wastewater engineering expert and consulted with the Connecticut Department of Energy and Environmental Protection to develop a set of technological upgrades and improved operating practices that the company must implement to address its stormwater pollution violations.

These pollution control measures would significantly reduce the presence of zinc, lead, copper, and other pollutants in the

company’s stormwater discharges, and they have been the primary focus of the settlement negotiations.

While pursuing settlement, NELC has continued to push ahead with its lawsuit to ensure that, whether through settlement or courtroom trial, the company is brought into compliance with the Clean Water Act.

If a favorable settlement agreement is reached, a consent decree will be entered in federal court that will mandate the installation of pollution control measures and impose a civil penalty against the company for its violations.

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