A new ruling ExxonMobil vs. Environment TexasExpected to be completed by August. ExxonMobil has asked the Fifth Circuit Court of Appeals for a second appeal to limit citizens’ rights to sue polluters in federal courts. Andrew Oldham, a Trump-appointed Federalist Society Member, is the presiding Judge.
The Clean Air Act citizen lawsuit, which dates back 12 years, was lost twice by the largest American oil corporation. In 2010, Environment Texas and Sierra Club sued ExxonMobil on behalf of residents of Baytown, Texas, who suffered respiratory and other illnesses as a result of toxic emissions from the company’s Baytown plant, its largest in the world.
In 2017, U.S. District Judge David Hittner ordered the company to pay a $20 million penalty to the U.S. Treasury, the biggest citizen’s suit penalty to date. After the Fifth Circuit overturned that ruling on Exxon’s first appeal, Hittner knocked the penalty down to $14.25 million. ExxonMobil argues that Baytown residents do not have the legal standing to sue in federal court.
Even though the EPA maintains its ability to regulate pollutant emissions after the Supreme Court hamstrung the agency’s ability to reduce greenhouse gas emissions, the EPA and state environmental agencies, like the one in Texas, have faltered in enforcing the Clean Air Act. Citizen lawsuits are used to hold polluters liable when federal or state agencies fail in their duties. If the Fifth Circuit agrees with ExxonMobil’s argument, this would deal a devastating blow to any environmental group or community that seeks to bring a citizen lawsuit to federal court.
Sharon Sprayberry is one the key witnesses for plaintiffs in ExxonMobil vs. Environment Texas. Sprayberry had first tried reporting to the EPA the incidents of chemical emission flares she witnessed coming from ExxonMobil’s Baytown plant, located less than two miles away from her home.
“The first time I heard it, I thought it was a tornado. It was like a freight train roar,” Sprayberry said. “I looked at the sky and it just lit up bright orange…. It started at one or two in the afternoon and it went all night, and it never ever got dark.”
After several failed attempts to get the EPA to act, Sprayberry says the EPA then passed her on to the Texas Commission on Environmental Quality (TCEQ) which then “twirled me around and did nothing.”
Using data from the EPA’s own annual enforcement reports, the Environmental Integrity ProjectThe average annual number of investigations, prosecutions, and inspections has declined by half in the last 20 years. This decline began before the Trump administration. The report cites the EPA’s deference to states to enforce environmental laws as a primary reason for this decline.
Three commissioners are appointed by the governor to head the Texas Commission of Environmental Quality. This commission is charged with enforcing federal and state environmental laws. This year, the TCEQ is up for review by the Sunset Advisory Commission, a group of 10 state legislators and two laypeople, who review the performance of the state’s agencies every 12 years. During a hearing, the Sunset Advisory Commission called the TCEQ “reluctant regulators.”
The Sunset Advisory Commission’s reportTCEQ acknowledges that the industry must self-report and monitor illegal emissions. The agency does not have compliance history data for 400,000 facilities. This is 89 per cent of facilities in the state. Even when facilities do report their emissions, the TCEQ does not pursue any action when plants explain the illegal emissions were “unplanned, unavoidable, and properly reported,” a legal concept called “affirmative defense.” According to the report, over the last five years, TCEQ has granted affirmative defenses for an average of 87 percent of unauthorized emission events reported annually. This amounts to an average of 76.096,332 lbs of illegally emitted chemical pounds each year.
Another Environmental Integrity Project reportFrom 2011 to 2016, TCEQ only penalized 3% of air pollution violations. Even when penalties from the TCEQ are issued, they are usually very small and often less expensive than the cost of maintaining or updating equipment to meet emission standards.
In his 2017 decision, Judge Hittner found that ExxonMobil committed, over a period of five years, 16,386 days of violation under the Clean Air Act, emitting 8 million pounds of hazardous pollutants more than what’s allowed by state and federal law and clean air permits. Before the lawsuit, TCEQ had failed to issue any corrective action or penalties against the company’s Baytown complex. ExxonMobil filed a lawsuit against TCEQ. They requested TCEQ to issue a penalty, so that the citizen lawsuit could be dismissed.
According to the testimony of Barry Baisden, ExxonMobil’s former manager of Safety, Security, Health & Environment at the Baytown complex, and the testimony of John Sadlier, former head of enforcement for TCEQ, ExxonMobil approached TCEQ after the lawsuit was filed and drafted its own order of penalty for TCEQ to issue. The penalty was $98,000. ExxonMobil was permitted to pay half of the amount to the industry-run. Houston Regional Monitoring CorpExxonMobil is also a member of its board.
Sprayberry joined Environment Texas after years of suffering from respiratory illness. Sprayberry grew up just a few miles from the facility. She was diagnosed with asthma at three months old. She avoided outdoor play and trick or treating, slept with her back up and learned to read the wind direction and timing to breathe. Even with all these precautions, she ended up in the hospital with dyspnea (shortness of breath) several times a year during her childhood, describing the experience as “breathing through a tiny, tiny, little straw.”
It wasn’t until Sprayberry left Baytown at the age of 18 that she was “given new lungs,” as she puts it. She joined the U.S. Navy and jumped out of helicopters, climbed walls, and did other strenuous activities she didn’t think possible.
Sprayberry and her mom moved to Baytown 36 year later to find a job. However, Sprayberry discovered that the ExxonMobil plants had grown exponentially. Sprayberry’s mother developed respiratory problems again, and her mother developed heart disease. Sprayberry also learned that other colleagues in her school district were suffering from cancer.
The EPA’s standard for an acceptable level of cancer risk is 1 in 10,000. This means that for every 10,000 people in an area, one more case of cancer could be caused by exposure to toxic chemicals. ProPublica’s map, based on EPA data of cancer risks by pollutant emission, shows that residents around ExxonMobil’s Baytown plant face a risk for cancer that is 2.8 times higher than EPA’s acceptable threshold.
Oldham continues to advance despite all evidence ExxonMobil’s argument that the Baytown residents have no legal standing to bring the citizen lawsuit to federal court.
To date, courts have applied what’s known as the Cedar Point-Powell DuffrynTest on legal standing for citizen suits. According to these precedents, plaintiffs need to show that they have “a concrete personal stake in the air quality of their neighborhoods,” that their injuries can be “fairly traceable” to a plant’s violations of the Clean Air Act, and that the violations “cause or contribute to the kind of injuries” experienced by the plaintiffs.
Oldham now wants citizen lawsuit plaintiffs to pass a “but-for-causation” test. This means that plaintiffs must prove that their injury at a given date could not have been caused or aggravated by another violation on a specified date.
Luke Metzger, executive director of Environment Texas explains that such a requirement is an “impossible standard” when dealing with large, complex plants, which have different emission sources, as opposed to cases where there is only one source of pollutant discharge. Metzger says that not all emission events are visible to residents and that residents would not know which emissions are legal and illegal.
“Congress explicitly gave people, recognizing that the government sometimes does not aggressively enforce the law, a very important tool for reducing pollution themselves,” Metzger said. “These kinds of powerful tools protect our environment, hold companies accountable and help prevent future violations. It would be a radical departure from the current rules regarding standing to not allow full accountability for these violations. You must demonstrate that you know of a violation at a particular time. It would have a chilling effect on the ability of citizens to hold polluters accountable if the government fails to do so.”
Before Trump pickedOldham to be an appellate judge. Oldham was chosen from a list supplied by the Federalist Society. Oldham already had a reputation as the deputy solicitor General and then the general counsel in Texas. He attacked the EPA, which he called an “anabolic.” “illegitimate administrative state.”
The state filed at most 17 documents during his time in Texas. lawsuits challenging the EPA’s authority, two of which Oldham presented in front of the Supreme Court. Oldham argued that the EPA doesn’t have the authority to regulate carbon dioxide emissions in 2012. In his brief For Utility Air Regulatory Panel vs. EPA, Oldham stated that greenhouse gasses do not qualify as air pollutants under the Clean Air Act and that the “Chevron deference,” a doctrine from a 1984 Supreme Court ruling that guides courts to defer to federal agencies with more expertise, is not explicitly stated in the Constitution.
In 2015, Texas and West Virginia led 22 other states, using a similar argument, to sue the EPA over Obama’s Clean Power Plan, which required states to cut carbon emissions by shifting from coal to natural gas and renewable energy by 2030. The New York Times has detailed how the Supreme Court’s recent ruling on West Virginia v. EPA was a multi-year strategy coordinated by Republican states, dark money, the oil and gas industry, and the judicial system to undermine environmental laws and weaken the executive branch’s ability to respond to the climate crisis.
ExxonMobil is amongst other giants in the fossil fuel industry like Koch Industries. donatesThe Federalist Society annually, while the Federalist Society has been around for many years. defended ExxonMobil’s history of climate science denial. Beck Redden LLP is a law firm representing ExxonMobil. ExxonMobil vs. Environment TexasMembers of the Federalist Society have attorneys. Aaron Streett, former Houston Federalist Society president and Baker Botts attorney, was a long-standing representative for oil and natural gas giants. He filed an amicus Brief for ExxonMobil in behalf of the American Fuel and Petrochemical Manufacturers and Texas Chemical Council.
ExxonMobil published an earlier report this year earning $23 billion in 2021This is the company’s highest annual profit ever since 2014. Baytown residents still wait to see the company pay for polluting and threatening their health.
In August, if the Fifth Circuit upholds the district court’s decision on ExxonMobil vs. Environment Texas, the ruling will preserve the right of citizens to use citizens’ lawsuits to protect themselves from polluters in their community. If Judge Oldham’s opinion prevails, oil and gas giants like ExxonMobil will have yet another mechanism to evade the Clean Air Act.
“To finally get some accountability would send a message to not just Exxon, but to other companies, that these kinds of emissions are, in fact violations, and companies need to take them seriously or face significant consequence,” Metzger said.
