Federal Court Gives Exxon Free Pass Despite Thousands of Air Pollution Violations

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Exxon Admitted To Violations At Trial, Suffers No Consequences; Plaintiffs Decry “Two-Tier System Of Justice,” Weigh Appeal Options

Environment Texas

HOUSTON – A federal district court has refused to order any penalty or issue any other sanctions against ExxonMobil Corporation, despite the company’s admissions during a three-week trial in February that it committed many thousands of violations of the federal Clean Air Act at its Baytown, Texas, refinery and chemical plant complex.

In an 86-page decision, U.S. District Judge David Hittner accepted Exxon’s claims that its 10 million pounds of illegal air pollution – consisting of carcinogens, other toxic pollutants, and respiratory irritants – could not be conclusively linked to any adverse effects in the communities around the complex.

Hittner also accepted Exxon’s argument it should not be held responsible for failing to prevent the more than 4,000 separate equipment malfunctions and other “upset” 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 since October 2005.

“I read the court’s decision with a growing sense of shock, disappointment, and outrage,” said Luke Metzger, Director of Environment Texas. “By allowing Exxon to openly and repeatedly violate its Clean Air Act permits with impunity, this ruling not only puts public health and safety at risk, it creates the appearance of a two-tier system of justice in this country, in which the richest and most powerful defendants receive the most lenient treatment by the courts.”

At trial, plaintiffs Environment Texas and Sierra Club submitted thousands of pages of Exxon’s own legally mandated reports of violations, and the groups’ attorneys subjected Exxon witnesses to many hours of cross-examination, using Exxon’s own words to prove that the company had violated its state-issued, federally mandated operating permits.

Four members of the environmental groups testified about their personal experiences living next to the Baytown Complex, describing how they have suffered through foul odors, poor air quality, and the fear that each massive flaring event signals a potential explosion. Expert witnesses for the groups included two engineers, who testified that Exxon has cut corners on preventive maintenance at the vast complex and has under-reported the quantity of its emissions; a medical doctor with expertise in respiratory hazards and exposure to industrial air pollutants; and an economist, who testified that Exxon made $90 million in profits every 18 hours throughout 2012 – the amount by which the company is under-spending on its efforts to prevent upset events.

“Unfortunately, today’s decision continues a Texas tradition of turning a blind eye – or even worse, offering a helping hand – to the state’s worst polluters,” said Dr. Neil Carman, a former air inspector for the Texas Commission on Environmental Quality (TCEQ) and now the Clean Air Program Director for the Sierra Club Lone Star Chapter.  “Compliance with air pollution laws and operating permits is mandatory, not optional, but first the TCEQ and now a federal trial court have refused to enforce the laws they are charged with overseeing. This has created a very dangerous precedent and puts more people at risk.”

This is the groups’ third federal lawsuit since 2008 targeting illegal air emissions in the Houston area caused by so-called “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.

Exxon’s 3,400-acre complex in Baytown, Texas, is located about 25 miles east of downtown Houston.  Tens of thousands of people live within three miles of the complex.

The groups sought the maximum penalty available under federal law, $642 million, for Exxon’s approximately 18,000 violations, and asked Judge Hittner to appoint an independent monitor to oversee Exxon’s environmental compliance. 

Attorneys for the groups said that they are analyzing Judge Hittner’s decision and evaluating the merits of an appeal to the federal Fifth Circuit Court of Appeals.

The groups are represented by the National Environmental Law Center, attorney David Nicholas of Newton, Massachusetts, and Houston attorney Philip Hilder.

Sierra Club has approximately 24,000 members in Texas who are protecting parks and wildlands and building a clean energy future to protect human health and natural resources.  

Environment Texas advocates for clean air, clean water, and preservation of Texas’ natural areas on behalf of approximately 3,000 members statewide.