NEW ORLEANS – ExxonMobil should face severe sanctions for releasing 10 million pounds of illegal, health-threatening air pollution into the densely populated communities around Baytown, Texas, attorneys for citizen-based environmental groups said today before a three-judge panel of the federal Fifth Circuit Court of Appeals.
Environment Texas, a project of Environment America, and Sierra Club presented oral argument today in their appeal of the decision handed down by U.S. District Judge David Hittner in December 2014, after a three-week trial in Houston.
Judge Hittner failed to find Exxon liable for thousands of emission violations the company itself had reported to state regulators, and then stated that he would not fine Exxon a single dollar even had he found it liable for every violation.
“The purpose of the Clean Air Act is to protect the public from air pollution,” said Sara Smith, staff attorney at Environment Texas. “If federal courts can refuse to enforce the law against the country’s largest violators, the protections written into permits and regulations are meaningless.”
Lawyers pointed to the company’s own testimony at trial admitting that its compliance reports contained evidence of thousands of violations of Clean Air Act permits at the Baytown refinery and chemical plant complex from 2005 to 2012, involving releases of carcinogens, respiratory irritants, and other toxic pollutants beyond the amounts allowed by law.
Members of Environment Texas and Sierra Club living next to the Baytown Complex testified at the 2014 trial that they suffered from foul odors and poor air quality, and feared that massive flaring events signaled large pollution releases and even the potential for explosions.
A primary issue in the case is the prevalence of “upset” events at the Baytown facility—equipment breakdowns and malfunctions, leaks, operator errors, and plant design problems that cause illegal releases of air pollutants. The groups proved at trial that Exxon’s Baytown Complex experienced, on average, more than one such upset event every day for the eight years leading up to trial.
This is the groups’ third federal lawsuit since 2008 targeting illegal air emissions in the Houston area caused by “upset” events and other violations of Clean Air Act operating permits at Gulf Coast refineries and chemical plants. It follows earlier successful cases against Shell Oil Company for violations at its Deer Park refinery and Chevron Phillips Chemical Company for violations at its Cedar Bayou chemical plant.
The groups sought a civil penalty of $642 million for Exxon’s approximately 18,000 violations, and asked the judge to appoint an independent monitor to oversee Exxon’s environmental compliance.
Attorney Josh Kratka of the Boston-based National Environmental Law Center argued the appeal. Recordings of the oral arguments will be available here by the day’s end.