5th Circuit: Citizen Lawsuit Against ExxonMobil Continues

By Laura Temme, Esq. on August 07, 2020 | Last updated on August 10, 2021

According to a recent decision by the Fifth Circuit Court of Appeals, a long-running citizen lawsuit against the largest petroleum company in the nation is not over yet.

Two environmental groups, Sierra Club and Environment Texas Citizen Lobby, filed suit against ExxonMobil in 2010, alleging more than 16,000 Clean Air Act violations at the company's Baytown, Texas facility.

The case has moved between federal district court and the Fifth Circuit Court of Appeals several times now. And it seems they aren't finished yet.

Flip-Flops in the District Court

Four years after the lawsuit was filed, District Judge David Hittner held that although there was evidence that Exxon had at least some CAA violations, no penalties or other relief were warranted.

On appeal, the Fifth Circuit panel vacated Judge Hittner's decision and remanded. On remand, Judge Hittner found Exxon liable and imposed a penalty of $19.95 million. Unsurprisingly, Exxon appealed.

This time around, the Fifth Circuit rejected most of Exxon's appeal arguments, remanding only for additional findings on traceability and Exxon's "Act of God" defense.

Proving "Traceable" Injuries

The Clean Air Act allows "any person" to sue polluters. If they win, the damages recovered go to the government - much like the olden-day writs that allowed English citizens to enforce laws on the government's behalf.

However, today these plaintiffs often encounter issues of standing under Article III of the U.S. Constitution.

To have standing, the citizen plaintiffs must show an injury traceable to the Exxon's conduct that can be redressed by a favorable decision in the courts. Plus, the Clean Air Act's penalty caps add even more complexity.

A plaintiff must allege at least two violations of the same standard to make a CAA "claim." Then each claim can be filled with violations, and penalties are capped per day of violations.

Claims vs. Violations

This case is made up of several claims, packed with alleged violations. The main dispute lies in whether the plaintiffs must prove their standing for each CAA claim or each violation. Several cases have held that standing can be established in a citizen's environmental suit without analyzing each violation.

However, here the panel held that because of the number and variety of violations at issue, the plaintiffs must prove standing for each. Exxon argues that the citizen claims fail on traceability, because their injuries can only be traced to five specific events among thousands.

The Fifth Circuit found Exxon's interpretation too strict and has now sent it back to the district court for further findings. Ten years on, it's clear both sides are in for the long haul – and the impact on environmental case law could be immense when the case is resolved.

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