Fall 2022: Vol. 24, No. 3

Exxon still trying to evade $14.25 million penalty

NEW ORLEANS—The largest and longest-running case NELC has litigated, a massive Clean Air Act lawsuit against ExxonMobil Corporation, was the subject of a rare occurrence on June 28: a second appellate oral argument before the same three-judge panel of the 5th U.S. Circuit Court of Appeals.

The arguments, presented for plaintiffs/appellees Environment Texas and Sierra Club by NELC Senior Attorney Josh Kratka, centered on whether the two environmental groups have legal “standing” under the U.S. Constitution to seek civil penalties against Exxon for 3,651 instances of illegal flaring and other unauthorized pollutant releases committed by Exxon over a period of eight years at its Baytown, Texas, oil refinery and chemical plant complex.

The ultimate issue is whether Exxon, after 13 years of litigation, will finally be ordered to pay the record $14.25 million penalty assessed by U.S. District Court Judge David Hittner. If so, this would be the largest civil penalty ever imposed in a citizen-initiated lawsuit to enforce the Clean Air Act.

At the June 28 hearing, held via Zoom, Kratka argued that Judge Hittner—in the third written opinion he produced in this case—made detailed factual findings that were more than sufficient to establish that each of the thousands of proven violations caused smoke, chemical odors, ground-level ozone, or respiratory impacts that were “fairly traceable” to injuries suffered by members of the groups who live, work, shop, or attend church directly in the “discharge zone” of Exxon’s emissions.

The purpose of the “standing” requirement, Kratka stressed, is simply to assure that the parties bringing a case in federal court have a concrete and personal stake in the controversy before the court, as opposed to those who would use the court to advance purely political or policy positions. Indeed, as NELC lawyers noted in their written arguments to the 5th Circuit, the U.S. Supreme Court has recently stated that one whose property is polluted by emissions from a factory “may of course proceed in federal court” against the operator of the factory. Exxon, on the other hand, has contended that the method for determining “traceability” set out by this 5th Circuit panel at an earlier stage of this appeal, and then painstakingly applied by Judge Hittner, is invalid. At oral argument, however, the company’s appellate lawyer could not explain why. When asked by one of the judges what standard should be applied, he had no clear answer; when asked by another judge what his “best case” was, he cited a 1992 Supreme Court decision that does not even address the issue of traceability.

A decision on Exxon’s appeal is expected before the end of the year.

U.S. Steel’s Clairton facility has another major outage as Clean Air Act trial looms

PITTSBURGH—When David and Cindy Meckel awoke the morning of July 4, the air in their bedroom felt unusually heavy. An all-too-familiar sulfurous odor filled their home, and it grew stronger as they stepped out onto their back porch, where they saw tall flames atop the flares at U.S. Steel’s Irvin Works. The Meckels live on a hillside in Glassport, Pennsylvania, just south of Pittsburgh. Their home is three-quarters of a mile east of Irvin Works—which faces them from across the Monongahela Valley—and two miles north of U.S. Steel’s Clairton Coke Works, the nation’s largest coke manufacturing facility.

The Meckels are witnesses in NELC’s ongoing Clean Air Act citizen suit against U.S. Steel. Brought on behalf of PennEnvironment and Clean Air Council, the lawsuit arises from the company’s decision to operate Clairton Works without critical pollution control equipment for 104 days after an eminently preventable December 2018 fire knocked the equipment offline. When operable, that equipment strips harmful pollutants from the coke oven gas that is generated during coke production at Clairton before the gas is burned as fuel at Clairton, Irvin, and U.S. Steel’s nearby Edgar Thomson facility. During the 104-day pollution control outage, U.S. Steel continued to operate the three plants using untreated coke oven gas, thus emitting massive amounts of illegal pollution into surrounding communities. As members of Clean Air Council, Cindy and David offered lengthy deposition testimony describing their experiences during this period.

Those experiences—especially the sulfurous smell and the loud roar of the flares across the valley—came rushing back to them on the Fourth of July. The public would soon learn why: At 5:30 that morning, the Clairton plant had suffered a widespread, and still unexplained, power outage. The outage halted operation of Clairton’s pollution control equipment.

For the next 40 hours, U.S. Steel essentially reprised the strategy it had followed during the earlier 104-day outage period: Once again, the communities surrounding U.S. Steel faced increased exposure to harmful pollutants, including hydrogen sulfide and sulfur dioxide, as the company burned untreated coke oven gas at all its available flare stacks, including those near the Meckels.

The July 4 outage looms large as NELC attorneys prepare for a trial against U.S. Steel. Presiding Judge W. Scott Hardy has denied the parties’ motions for summary judgment and has tentatively scheduled trial for the spring of 2023. At trial, the plaintiffs will seek the appointment of a neutral third party to audit the operation, maintenance, and design of the Clairton facility.

U.S. Steel has steadfastly maintained that this remedy is too drastic, arguing in court filings that “it is not imminent, let alone likely, that U.S. Steel’s permit violations will reoccur.” NELC attorneys will argue that July 4 proves otherwise.

Welcome Lily Hibbard, the newest member of the NELC team

BOSTON—This July, NELC welcomed Lily Hibbard as our new paralegal and office administrator.

Lily graduated summa cum laude from Scripps College in 2022 with a degree in environmental analysis. While at Scripps, Lily studied environmental justice and the environmental toll of modern social and political structures. Prior to working with NELC, Lily was an intern at Seaside Sustainability in Gloucester, Massachusetts, where she served on a statewide task force on PFAS chemicals, and at Women and Law in Southern Africa, where she worked on policy-based approaches to environmental health and the preservation of natural resources.

“I’m so grateful to be joining this team. NELC’s work is vital, and I feel lucky to have a position that aligns with my aspirations and values,” said Lily. “I’m eager to get to work.”

Lily replaces Riena Harker, who served as NELC’s paralegal for the past two years and is now enrolled at the graduate School of Public Health at Yale University.