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Fifth Circuit Sided With Environmentalists on Air Pollution But Exxon's Baytown Refinery Could Still Come Out on Top

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Well, this almost never happens. Years after the Sierra Club and Environment Texas filed a lawsuit over emissions purportedly coming from ExxonMobil's massive Baytown refinery, the U.S. Fifth Circuit Court of Appeals has turned around and sided with the environmentalists about Exxon's alleged violations of the federal Clean Air Act. 

It's a win for the Texas environmental movement, although it might be a short-lived one, as Luke Metzger, director of Environment Texas, admits. 

The whole thing started about six years ago when the Sierra Club and Environment Texas brought a lawsuit against ExxonMobil's Baytown refinery, alleging there were emissions pumping out of the facility in violation of the federal Clean Air Act from 2005 to 2010.

At the time, the environmental groups said they'd decided to file the lawsuits because regulatory authorities weren't doing anything to address the problem. When the case went to trial in 2014, U.S. District Judge David Hittner ruled that despite ExxonMobil's numerous Clean Air Act violations at the Baytown facilities over the years, the air violations couldn't be conclusively linked to the health issues of people living around the Baytown facility.

Hittner's 2014 decision snagged our attention back then because, well, we were simply awed  by the "logic" that backed it up. Hittner accepted Exxon's claims that about 10 million pounds of air pollution (composed, of course, of carcinogens, other toxic pollutants and respiratory irritants) released in violation of clean air laws could not be conclusively linked to any unpleasant effects in the surrounding communities, as we noted at the time. Then Hittner accepted Exxon's argument that it should not be held responsible for failing to prevent the more than 4,000 separate equipment malfunctions and other events — an average of more than one a day for eight years — that each resulted in the release of illegal pollutants from the Baytown Complex from October 2005 through 2010.

To sum it up, Exxon won. But that wasn't the end of the story.

Last Friday, a panel of judges on the U.S. Fifth Circuit Court of Appeals reviewed the case and decided Hittner was wrong. 

The 40-page opinion issued on Friday found Hittner had “erred in the district court's analysis of Exxon’s liability” and “abused the district court's discretion,” according to the Fifth Circuit. The Fifth Circuit judges finished up by vacating Hittner's previous decision, kicking the case back to the district court and ordering Hittner to make a decision “for assessment of penalties based on the violations that are properly considered ‘actionable’ in light of” the Fifth Circuit opinion. 

Hittner got a sound judicial scolding from the Fifth because he didn't add up the number of actionable violations properly or accurately count the number of refinery emissions, Metzger says. "He clearly made a number of errors judging by the Fifth's opinion, and now he has to go back and do all of those things correctly," Metzger says.

However, it's worth noting that the case being kicked back to Hittner doesn't guarantee a different outcome this time around. When it comes to doling out economic penalties in Clean Air Act cases, trial judges like Hittner have a ton of discretion. The maximum penalty in a case like this can be hundreds of millions of dollars, Metzger says, but Hittner's guidelines are pretty loose, Metzger says. "We think the Fifth Circuit's decision was a pretty strong, clear direction to the district judge to go over the actionable violations and follow those instructions pretty close, but Hittner does still have latitude and discretion," Metzger says.

Despite the caveats, environmentalists were exuberant, viewing the fact the Fifth has resuscitated the $641 million air pollution lawsuit against ExxonMobil as a heady and somewhat unexpected victory. (After all, the Fifth is one of the most conservative circuit courts in the United States, as we've noted before, so it doesn't exactly make a habit of siding with environmentalists.). “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," Metzger stated. 

Metzger admits the decision was a surprise. "It's a court very well known for being very conservative, and a lot of environmental cases suffer much worse fates before this court. It was daunting going in, but we had good oral arguments and they agreed with us," Metzger says.

“This is welcome news,” Neil Carman, the clean air program director for Sierra Club’s Lone Star chapter, stated. “We cannot get clean air in Houston if one of the region’s most persistent polluters can violate the Clean Air Act with impunity.”

But for the moment, the environmentalists are just basking in the legal victory since environmental wins in Texas don't come along every day.  There's no word on when Hittner will take up the case again. "We don't have any time line, so we're just waiting," Metzger says.

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