2020 Environmental Real Estate IssuesThe Clean Air Act (CAA) and most other major federal environmental laws allow private citizens to bring civil enforcement suits against companies alleged to be in ongoing violation.  Citizens can obtain injunctions and recovery of attorneys’ fees and other litigation costs; fines go to the federal treasury.

Citizen Must Show Standing
Not any citizen can bring a “citizen’s suit.”  In keeping with the Constitutional concept of separation of powers, citizens must establish standing to bring a citizen’s suit.  To establish standing, the citizen must show an injury, traceable to the alleged violator’s conduct, that a favorable decision will redress.  The requirement to determine standing in citizen’s suits has challenged many courts.

Citizen Suit against ExxonMobil
On July 29, 2020, the US Court of Appeals for the 5th Circuit issued an opinion in Environment Texas v. ExxonMobil that addressed standing in a multi-year CAA citizen suit relating to ExxonMobil’s massive refining and chemical complex in Baytown, Texas.

In 2014, the district (trial level) court dismissed the case.  In 2016, the 5th Circuit reversed the dismissal, stating the trial judge had too narrowly construed the CAA.  Following a new trial, the district court assessed penalties of almost $20 million based on 16,386 days of CAA violations.  ExxonMobil appealed; one of its arguments was Environment Texas had not established standing.

Must Establish Standing for Each Violation
The 5th Circuit ruled that Environment Texas needed to establish standing as to each violation.  It acknowledged the evidence probably established standing for some violations, but for others the standing evidence was questionable.  Perhaps reluctantly, the 5th Circuit remanded the case for more proceedings at the district court to determine the number of violations for which standing was established and the appropriate penalty based on that determination.

To assist the district court, the 5th Circuit made two specific observations:

  1. Traceability is established for each violation that could cause or contribute to smoke, flaring, or haze.
  2. For other violations, if they cause odors or allergy-like symptoms, the district court should determine if the violation exceeded a nonzero standard, was reportable, or could cause odors or symptoms outside the ExxonMobil complex.

Dissent Says More Clarity Needed
One judge dissented.  Observing “precedents in this area are a mess,” the dissent suggested the need for more clarity.  Although agreeing the case should be remanded, the dissent indicated the Constitution requires a stricter approach to standing than what many cases have allowed.

For a copy of the 5th Circuit opinion, including the dissent http://www.ca5.uscourts.gov/opinions/pub/17/17-20545-CV0.pdf