THE LATEST: On April 26, 2023, on behalf of Public Justice, Democracy Forward filed an amicus brief in the U.S. Court of Appeals for the Fifth Circuit in Environment Texas Citizen Lobby v. ExxonMobil. This brief affirms for the court that the plaintiffs in this case have done just what courts have required for decades, and what the Clean Air Act requires, in bringing a citizen-suit, which deputizes private citizens to help enforce the Act’s permitting requirements and emissions restrictions.
Exxon attempts to rely on a recent Supreme Court case, TransUnion v. Ramirez, to argue that plaintiffs must show with scientific certainty that Exxon’s emissions caused each of the precise harms suffered by the people living near and visiting Baytown, where Exxon’s refinery and plant are located.
Democracy Forward argued, on behalf of Public Justice, that Exxon grossly misread and misstated what TransUnion stands for, and that requiring this higher standard would go against decades of case law and set back individuals’ ability to challenge corporate actions through citizen suits, including the ability to challenge polluters in the towns where they live and visit. Our brief urges the Fifth Circuit, en banc, to affirm the district court and Fifth Circuit panel rulings.
Failing to do so would threaten to strip Congress of its ability to legislate in response to complex policy problems, threatening the separation of powers that is at the core of Article III standing and resulting in individuals’ inability to exercise rights delegated by Congress.
Environment Texas CItizen Lobby v. ExxonMobil centers on thousands of emission events at Exxon’s Baytown, Texas, petrochemical complex. From 2005 through 2013, Exxon released millions of pounds of sulfur dioxide, ozone-forming chemicals and toxic and carcinogenic pollutants into surrounding neighborhoods. Environment Texas and the Sierra Club – who both have residents that live in these communities – filed a citizen suit against Exxon.
The Clean Air Act, the Clean Water Act and other federal environmental laws established the right of citizens to sue companies for violations when the government fails to do so. These citizen suits are a powerful tool for community groups to reduce pollution, hold violators accountable and spur government regulators to do their jobs.
Citizen suits don’t seek personal compensation for illness or property damage. Plaintiffs must simply show they have a personal stake in the outcome of the controversy by establishing that they have suffered injuries that are “fairly traceable” to the illegal conduct. Courts across the country have held that evidence showing that the types of injuries plaintiffs suffer can be caused by the pollutants illegally discharged into their neighborhoods is sufficient to meet this “traceability” standard.
The trial judge levied an unprecedented fine to punish the company for 3,651 instances of illegal flaring and other unauthorized releases of pollutants – more than one per day, on average, for eight solid years. Exxon, however, argues the Court should conduct a separate standing inquiry for each of its 3,651 violations and require the plaintiffs to connect their injuries to specific unlawful instances. The Fifth Circuit rejected Exxon’s argument that the United States Supreme Court’s decision in TransUnion LLC v. Ramirez, altered the Fifth Circuit’s analysis of the injury-in-fact requirement for standing.
In ExxonMobil’s appeal, the company tried to convince the 5th Circuit en banc to deviate from decades of settled case law prescribing the circumstances under which citizens have legal standing to bring environmental enforcement suits.