Proof and Causation Matter: District Court Declines to Penalize ExxonMobil in Texas Citizen Suit

On Wednesday, Judge David Hittner, of the District Court for the Southern District of Texas, in a decision long enough to require two separate pdfs, declined to impose an injunction or penalties (plaintiffs sought $642,697,500) against ExxonMobil in a Clean Air Act citizens’ suit brought by Environment Texas and the Sierra Club concerning the ExxonMobil facility in Baytown, Texas. baytown-night-lights_supporting_image (1) The plaintiffs lost even though Judge Hittner did find a number of violations of the CAA.  Why did plaintiffs lose?  Here are some of the reasons:

*  ExxonMobil never exceeded any annual limits on emissions

*  Emissions from the facility were steadily decreasing over the time period covered by the suit

*  Exxon had spent hundreds of millions of dollars annually on facility maintenance

*  Exxon did careful root cause analyses of every apparent violation and persuaded the court that it was dedicated to preventing recurrences

*  The sheer size of the facility actually worked in ExxonMobil’s favor; the Court found that it is literally impossible to prevent all violations

*  The plaintiffs’ experts were not found credible in demonstrating that ExxonMobil benefitted economically from the non-compliance

*  The plaintiffs were not able to demonstrate any link between any of the proven violations and any impact to public health or the environment

On the legal side, the Court’s conclusion that imposition of any penalty at all is within a judge’s discretion is obviously critical.  Similarly, the Court concluded that the requested injunction – which was that ExxonMobil comply with the CAA for five years –

would be an excessively intrusive remedy, because it could entail continuing superintendence of the permit holder’s activities by the federal court – a process burdensome to court and permit holder alike.

Finally, I note that the Court’s detailed discussion of the witnesses put forward by the parties on the issues of economic benefit of noncompliance and the impacts – or lack thereof – of the violations are well worth reading.  It really does matter how you put on a case.

Final score, Goliath 1, David 0.

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