Lessons from the 5th Circuit: Environment Texas Citizen Lobby v. ExxonMobil

On May 27, 2016 the U.S. Court of Appeals for the 5th Circuit issued its opinion in Environment Texas Citizen Lobby v. ExxonMobil, a case under the citizen suit provision of the Clean Air Act.

The 5th Circuit reversed the trial court on some issues and upheld the trial court on other issues. Key lessons from this decision include:

  • The trial court’s findings will be very important, due to wide discretion afforded to it. Examples include:
    • In general, the trial court’s determination that a Title V Deviation Report is or is not sufficient, standing alone, to support a violation, will be upheld by the appellate court.
    • The trial court’s determination to grant or deny other remedies, such as a declaratory judgment or an injunction, will be upheld by the appellate court.
  • A trial court may give no penalty even when it finds a violation. However, in order to do this, it must make extensive findings of fact to support no penalty. In keeping with its decision in U.S. v. Citgo, the 5th Circuit insisted on a very rigorous analysis of any alleged economic benefit of noncompliance. The 5th Circuit determined that the trial court’s conclusion of no economic benefit to ExxonMobil did not meet the standards set out in Citgo, and ordered the trial court to do a more thorough analysis.
  • When the Title V permit prohibits upset emissions, a Deviation Report of an upset “emissions event” will be presumed to be a violation, when the definition of “emissions event” includes the concept of an unauthorized emission.
  • In order to prevail in a citizen suit, the plaintiff must prove “continuing violations” by proving either:
    • a repeated violation of the same emission standard or limitation before the complaint was filed; or
    • a violation of the same emission standard or limitation both before and after the complaint was filed. In this regard, the 5th Circuit relied on Clean Water Act authority in analyzing the concept of “continuing violations” necessary to support a citizen’s suit.
  • When the defendant concedes that a document shows a violation (as opposed to just an “indication of noncompliance,” in the case of most Title V Deviation Report entries), additional corroborating evidence is not required. Once the defendant acknowledges the violations, the court should proceed to analyzing whether or not those violations were “continuing.”
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