5th Circuit votes to rehear Exxon appeal

NEW ORLEANS—In a brief two-paragraph order issued on Feb. 17, the federal 5th Circuit Court of Appeals announced that a majority of its 16 active judges had voted to “vacate” last August’s decision from a three-judge panel that upheld the $14.25 million penalty National Environmental Law Center (NELC) attorneys had secured against ExxonMobil Corporation for thousands of violations of the Clean Air Act, and to grant Exxon’s request that its appeal be heard anew by all 16 judges—what is known as an “en banc” rehearing.

This is an extremely frustrating development in a case that has already dragged on for 13 years, from the filing of the lawsuit in 2010 through trial in 2014 and then several rounds of appeals. Plaintiffs Environment Texas and Sierra Club, and their members who live near Exxon’s massive oil refinery and chemical plant complex in Baytown, Texas, have good reason to be disappointed that the assessment of a penalty has been put on hold yet again.

On a more positive note, however, NELC’s litigation team welcomes the opportunity to establish before the full Court of Appeals the right of citizens, specifically including the four Baytown residents who bravely testified at trial, to hold even the largest corporations accountable for unlawful pollution.

The issue Exxon now raises affects citizens’ access to federal courts and has national importance. On its face, the answer to this most basic question should be obvious: Do people who live, work, shop, attend church, exercise, and visit parks and playgrounds near (sometimes directly across the road from) the largest industrial complex in the United States have a personal stake in whether the air pollution from that complex stays within its legally prescribed limits?

That simple question is at the heart of Exxon’s brazen challenge to the legal standing of the very people subjected to its toxic emissions to challenge its violations in court. Exxon expresses no qualms about trampling on decades of legal precedent protecting this essential Constitutional right in its quest to protect its financial bottom line.

The City of Houston, Harris County (where Baytown is located), and the U.S. Department of Justice have already weighed in on our behalf, filing amicus curiae (friend of the court) briefs urging the Court of Appeals to reject Exxon’s arguments and to uphold the imposition of a significant penalty.

As of this writing, oral arguments on the appeal are scheduled for the week of May 15.

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NELC celebrates decades of action to protect U.S. rivers

BOSTON—The National Environmental Law Center has been a longtime advocate for rivers across the United States.

On March 14 we celebrated the 26th anniversary of the International Day of Action for Rivers, a holiday dedicated to the necessity of clean and thriving river ecosystems, and to the belief that everyone has the right and responsibility to preserve and enjoy rivers. In celebration, we are reflecting on our thirty-year history of enforcing the Clean Water Act to protect our country’s rivers.

1992: NELC attorneys secured a $700,000 penalty against ICI Americas, then a subsidiary of one of the world’s largest chemical companies, for persistent discharges of highly toxic wastewater to Muddy Cove Brook, a small tributary of the Taunton River in Dighton, Massachusetts. The company’s chemical and dye-making wastewater was so toxic that it once melted the plastic boots of an EPA inspector who waded into the brook, and the discharge sometimes colored the Taunton River red as it made its way to the Atlantic Ocean. In addition to requiring the company to devise and implement a toxics use reduction plan to bring its discharge within permitted limits, the judicial consent decree specified that $600,000 of the court-ordered penalty be used for projects to improve water quality in the Taunton River.

1998: An NELC settlement with Dow Chemical in Midland, Michigan, helped protect two historic midwestern rivers. As part of the settlement, Dow removed dioxin-contaminated wastes from its wastewater treatment ponds adjacent to the Tittabawassee River, thus reducing the very real risk of overflow and contamination. The company was also required to improve its wastewater system in order to end illegal phosphorus discharges into the Tittabawassee, where the nutrient had flowed downstream into the Saginaw River and into Lake Huron’s Saginaw Bay, contributing to acres of algal “muck” near the shoreline. Finally, the settlement directed $1.8 million to a watershed protection and enhancement fund that continues to support environmental protection projects to this day.

2007: A consent decree resolved a five-year NELC lawsuit against the Pacific Seafood Group, one of the country’s largest seafood companies, over discharges of biological wastes into Oregon’s Skipanon River, a small tributary of the Lower Columbia River. The discharges came from two contiguous facilities, one a conventional seafood processing plant and the other a highly technological manufacturer of surimi, a “paste” made from bottom fish that is used to make processed seafood products such as imitation crab and shrimp. The combined effect of these discharges literally removed almost all the dissolved oxygen in the lower portion of the Skipanon, turning the area into something of an aquatic dead zone.

The settlement required Pacific Seafood to permanently cease its discharges to the Skipanon, and to instead pipe it into the deepest part of the wide Columbia River, releasing it only via a long “diffuser” that dilutes the organic wastes and prevents them from affecting dissolved oxygen. In addition, Pacific Seafood was required to pay a $200,000 penalty to fund environmental enhancement and preservation projects in the Skipanon River watershed.

2018: In 2017, NELC attorneys filed suit against Pilgrim’s Pride, the world’s second-largest chicken producer, for repeated wastewater violations at its poultry processing plant in Live Oak, Florida. The violations were contaminating the already compromised Suwannee River—which runs through north central Florida to the Gulf of Mexico—with toxic chemicals, nutrients and other pollutants. A 2018 consent decree required the company to conduct extensive testing of the facility’s discharge and bring an end to the violations, and to pay $1.3 million of the court-ordered penalty to the Sustainable Farming Fund managed by the Institute for Water and Environmental Resilience at Stetson University. Since the settlement, the Sustainable Farming Fund has awarded 28 grants designed to help farms located on nearby waterways to mitigate their “nutrient footprint.”

2023: Our devotion to rivers continues today. A 2022 NELC suit seeks to protect Rhode Island’s Pawtucket River—which has been formally listed as a Wild and Scenic River—from copper and other high-toxicity discharges by textile manufacturer Kenyon Industries of Kenyon, RI. NELC attorneys, together with our wastewater engineer, are now working with the company to improve the design and operation of the facility’s wastewater treatment system, which should greatly reduce the impact of the discharges on the river.

NELC is proud to embody the mission of the International Day of Action for Rivers, and we look forward to continuing this work for decades to come.

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A closer look at preparations for the U.S. Steel trial

PITTSBURGH—In preparation for trial in their Clean Air Act citizen suit against U.S. Steel, NELC attorneys have been working hard to present our case:

Early disclosure of violations and evidence: U.S. Steel’s three Mon Valley Works facilities operate under Clean Air Act permits specifying dozens of operating requirements, including limits on the emission of pollutants.

Although NELC’s lawsuit, brought on behalf of PennEnvironment and the Clean Air Council, centers on violations of these requirements resulting from a 104-day outage of pollution control equipment at U.S. Steel’s Clairton Coke Works starting in December 2018, it also encompasses shorter outages in June 2019 and July 2022. Each of these outages, in turn, caused violations at the company’s interconnected Irvin and Edgar Thomson steel mills.

To ease the Court’s analysis of the 11,623 alleged Clean Air Act violations resulting from these outages, NELC attorneys produced detailed spreadsheets months before trial, setting forth (a) every permit requirement U.S. Steel violated; (b) every date a violation occurred; and, for many violations, (c) undisputed proof, including data compiled and verified by U.S. Steel. Filing this evidence months ahead of trial put U.S. Steel on notice of the strength of the case against it.

Joint stipulations of fact and joint exhibits: In even the most hotly contested cases, certain foundational facts and documents are beyond dispute. To streamline trial, Judge W. Scott Hardy urged the parties to compile a written list of such facts, to be integrated into trial without witness testimony.

Through months of negotiations with the company’s lawyers, NELC attorneys secured more than 185 stipulations of fact, along with 82 joint exhibits to be immediately admitted into evidence, encompassing everything from key emissions data to powerful videos of the facilities flaring toxic gases during the outage periods.

Pre-trial statement: A road map of what the Court should expect at trial, a Pre-Trial Statement provides an opportunity for a party to frame the strengths of its case. In its February statement, NELC summarized evidence to be offered regarding U.S. Steel’s violations and the impacts on surrounding communities.

The statement further identified 25 witnesses (including seven experts) and 326 exhibits that NELC attorneys plan to present at trial, while announcing their intent to seek a significant penalty and injunctive relief to deter future violations.

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Quick update: NELC attorneys prepare for trial against U.S. Steel

PITTSBURGH—Following nearly four years of pre-trial litigation, NELC attorneys have spent recent months preparing for trial in their Clean Air Act citizen suit against U.S. Steel.

In a nod to the lawsuit’s complexity, presiding Judge W. Scott Hardy has devoted 11 consecutive days of his courtroom calendar to the trial. Such lengthy trials are highly choreographed affairs, the public culmination of the parties’ adherence to the Court’s demanding trial preparation deadlines, yet leave plenty of room for the dramatic and the unpredictable.

At each stage, NELC attorneys—working alongside attorneys from the Allegheny County Health Department—have embraced the opportunity to demonstrate the strength of the case against U.S. Steel, hoping to set the stage for a favorable verdict while simultaneously increasing leverage for successful settlement negotiations.

Inside this newsletter on page 3, read more for a closer look into our attorneys’ preparations for trial.

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