By Matt Hollis
Sunday, June 14, 2015
The Harris County Attorney’s Office, the City of Houston and Air Alliance Houston have filed legal arguments in the case between ExxonMobil’s Baytown petrochemical complex and environmentalists groups, which is on appeal in the Fifth Circuit United States Court of Appeals.
Each of the entities side with the environmentalists, seek a reversal the court’s decision and force the oil giant to pay financial penalties for pollution violations.
In December, U.S. District Judge David Hittner said in an 80-page ruling that the Sierra Club and the Environment Texas Citizen Lobby were unable to meet their burden of proof that ExxonMobil purposely violated the Clean Air Act over an eight-year period. The groups claimed that the Environmental Protection Agency and the Texas Commission on Environmental Quality, the entity that administers the Clean Air Act in Texas on the EPA’s behalf, did not take proper action in regulating the Baytown complex and millions of pounds of pollutants were emitted as a result. No penalty was issued against ExxonMobil even though Judge Hittner said he found ExxonMobil’s emissions were above the permitted limits during the eight-year period.
In May, the environmental groups appealed to the Fifth Circuit to revive the $641 million suit. Now, legal documents have been filed in support of the environmentalists. This includes the Office of Harris County Attorney Vince Ryan, which represents Harris County in all civil matters filed in the state and federal courts.
“Harris County Attorney Vince Ryan filed an amicus brief to urge the Court to protect the health of the citizens of Harris County by reversing the trial court’s decision to not award any remedy – injunctive or civil penalties – for repeated violations of the Clean Air Act at the Exxon Mobil Baytown complex,” said Sarah Utley, Harris County deputy managing attorney. “The Clean Air Act is designed to protect public health and enhance the quality of our air resources, which is particularly important in places like Harris County where health based air quality standards – like ozone – are exceeded. Entities that repeatedly violate the Clean Air Act must be held accountable for those violations or the entire act is undermined. In Houston, and Harris County in particular, we have really bad air quality. Things that are emitted from facilities like the Baytown ExxonMobil complex have a huge impact on that quality. So, the office of Vince Ryan filed amicus curiae with the court to encourage them to reverse the decision and reward injunctive penalties for violating the Clean Air Act. They have violations but there have not been remedies.”
Adrian Shelley, executive director of the Air Alliance Houston, said they also want the Clean Air Act to be enforced on ExxonMobil.
“What we want is for the Clean Air Act to be used as a tool for compelling reduction in air pollution,” Shelley said. “The Act provides for harsh penalties for polluters. And they are penalized in a way that changes their behavior. These slap-on-the-wrist penalties and sweetheart deals from Texas Commission on Environmental Quality do not deter polluters from polluting the environment and endangering public health. That is one reason why the act allows for a citizen suit provision. If the government is not enforcing in a way that provides for real deterrents and incentives to clean the air, then citizens are entitled to seek that enforcement.”
Deedra Moe, ExxonMobil Baytown area public and government affairs manager, said that ExxonMobil in Baytown has an outstanding environmental record, including for the period of time the lawsuit says they were not prudent with their emissions.
“Our record over the eight years at issue reflects our commitment to continuous improvement and striving for industry-leading environmental performance,” Moe said. “In fact, the Baytown complex’s total annual emissions, routine and upset-related, were well below federal and state permit limits for the entire period cited in the lawsuit, and remain so today. We work openly and transparently with TCEQ, the EPA and local authorities, and we proactively seek means to exceed regulatory and permit requirements.”
Shelley said that the complex has had multiple violations and the plant always has an excuse for every one of them.
“I have looked over the thousands of violations that occurred over that 8-year period and at the core of Exxon’s argument is that they are a big complex facility and each one of the pollutions events is entirely unique from all of the others,” Shelley said. “Each one is completely unforeseeable and its own beast. They are saying that there is no pattern of non-compliance but a series of thousands of unique and unforeseen events.”
Moe said that the court reviewed all of the evidence and found that the complex was not at fault.
“The federal court considered all evidence and determined that there was no basis to award any of the relief plaintiffs requested,” she said. “The ruling states, ‘After evaluating all the evidence, the court finds the preponderance of credible evidence shows Exxon made good faith efforts to comply with the Clean Air Act.’ Also, ‘The court finds Exxon made substantial efforts to improve environmental performance and compliance … likely due to Exxon’s substantial efforts, the complex achieved significant reduction in the number of reportable events, the amount of unauthorized emissions of criteria pollutants, and the total amount of emissions over the years at issue in this case.”
Moe went on to say that the Baytown ExxonMobil facility has worked to comply with any and all regulations.
“Throughout our Baytown area facilities, we work diligently to comply with our permits and regulatory requirements,” Moe said. “We take public health and the environment seriously and remain committed to improving air quality and maintaining high standards of environmental performance.”
Luke Metzger, founder and director of the Environment Texas Citizen Lobby, said he is greatly appreciative to have the three entities on board.
“It demonstrates that these issues have a far reach,” Metzger said. “The pollution in Baytown doesn’t stay in Baytown where it impacts people the most. It can travel quite some distance and impact people in whole different region, so that is why you see Houston and others weigh in on this. It could also have ramifications on the industry at large. These violations by Exxon let huge amounts of pollutions that are members testified in court made them sick and feared for their family’s safety. And they are angry that Exxon is able to continue to violate the law with impunity.
“We are grateful to have the industries on board and shows there is broad support for our position and we hope the Fifth Circuit Court considers this in our appeal and recognizes that the judge made some egregious errors and had a misunderstanding of the basic elements of our case and the law. We are optimistic that we’ll get a second chance with the appeal and through the Fifth Circuit.”
According to Utley, ExxonMobil has asked the Fifth Circuit for an extension in order to file their reply brief. At that point, the Fifth Circuit judges will make a ruling on whether to take the appeal.
The City of Houston Legal Department was contacted for comment; however, they did not return calls.