Houston Urges 5th Circ. To Revive $641M Exxon Pollution Suit

By Matt Sharp

Law360, New York (May 26, 2015, 7:48 PM ET) -- The city of Houston on Friday threw its weight behind environmental groups’ bid to revive a $641 million suit againstExxon Mobil Corp. over alleged violations of the Clean Air Act, urging the Fifth Circuit to reverse a lower court’s “errors of law.”

Houston, joined by Harris County and advocacy group Air Alliance Houston, argued in an amicus brief that a Texas federal judge who dismissed the suit erred in denying any remedy for dozens of CAA violations arising from Exxon’s Baytown refining and chemical complex, the largest petrochemical complex in the United States, the brief noted.

“The combined denial of any and all relief — injunctive, monetary and declaratory — for the 94 Clean Air Act violations the district court determined were actionable and for the thousands more it should have recognized as actionable, in an area where air pollution already exceeds health-based standards, was based on legal and factual errors and was a clear abuse of discretion,” the brief said.

U.S. District Judge David Hittner said in his December decision that even though Exxon’s emissions went above the permitted limit at times, they weren't sufficient to warrant a penalty. The plaintiffs, Environment Texas Citizen Lobby Inc. and the Sierra Club, failed to demonstrate that Exxon had allowed the emissions problems at the facility to be repeatedly ignored or allowed those same problems to continue uninhibited, he said.

But Houston said Friday that Judge Hittner “committed errors of law and fact” in finding that the amount of pollution released from the facility did not adversely affect human health or the environment and that the oil giant’s reporting, recordkeeping and emission testing violations were not serious. Exxon, the city said in its brief, should be held accountable.

“Repeated violations of any law, particularly violations which threaten public health, should not go unremedied. Amici could find no other case where a court found so many harmful CAA violations but ordered no relief of any kind,” the brief said. “Amici and people in the Houston-Baytown area whom they serve need this court to reverse the district court’s decision…”

Environment Texas Citizen Lobby and the Sierra Club filed suit in December 2010, alleging that the Baytown facility — an integrated refinery, olefins and chemicals plant — emitted millions of pounds of pollutants into the atmosphere over the past several years, well in excess of legal limits.

Some of the pollutants — including sulfur dioxide, carbon monoxide, nitrogen oxides and benzene — are carcinogenic, cause or aggravate respiratory illnesses, or contribute to the formation of smog, according to the suit.

However, Judge Hittner denied the groups’ requests for declaratory judgment, penalties, injunctive relief and the appointment of a special master, finding in his decision that following each reportable event, Exxon conducted internal investigations and implemented appropriate corrective actions. The groups’ notice of appeal followed in January.

An Exxon spokesman told Law360 in a statement on Tuesday that "the federal court considered all evidence and determined that there was no basis to award any of the relief plaintiffs requested."

Houston is represented by Donna L. Edmundson, Judith L. Ramsey and Mary Beth Stevenson.

Harris County is represented by Vince Ryan and Michael Hull.

Air Alliance Houston is represented by Kelly Haragan of the University of Texas School of Law and Emma C. Cheuse of Earthjustice.

Exxon is represented by Russell S. Post, Fields Alexander, David M. Gunn, Eric J.R. Nichols, William R. Peterson and Bryon A. Rice of Beck Redden LLP, Albert R. Axe Jr. and Keith Alan Courtney of Winstead PC.

The case is Environment Texas Citizen Lobby Inc. et al. v. ExxonMobil Corp. et al., case number 15-20030, in the U.S. Court of Appeals for the Fifth Circuit.

--Additional reporting by Kurt Orzeck. Editing by Kelly Duncan.