Fifth Circuit Holds That Article III Standing Must Be Determined Per Violation in Clean Air Act Case Alleging 16,386 Violations

In Environment Texas Citizen Lobby, Inc. v. ExxonMobil Corp., No. 17-20545 (5th Cir. July 29, 2020), noting that heretofore “no court appears to have found standing for some Clean Air Act violations but not others,” a Fifth Circuit panel becomes apparently the first to hold that there must be Article III “standing for each violation for which plaintiff seeks a penalty.”

The Clean Air Act (CAA) is a “private attorney general” statute that authorizes “any person” to sue polluters, 42 U.S.C. § 7604(a), with any recovery going to the federal government. It permits individuals to sue for penalties for each day of reported or recorded violations. Over the relevant period in this case, “the nearly 4,000 emissions events” at the massive ExxonMobil complex in Bayfield Texas “resulted in 16,386 days of violations.” The district court levied a nearly $20 million civil penalty on the defendant.

On appeal, ExxonMobil’s challenged (among other things) the plaintiffs’ Article III standing. Plaintiffs argued that they need only “prove standing for each Clean Air Act claim (that is, group of violations of a particular emission standard)” rather than each violation. But the panel observes that this approach “runs up against the principle that one injury does not entitle a litigant to right other wrongs that did not injure it.”

The Fifth Circuit remands for reconsideration of standing. While conceding that “no court appears to have found standing for some Clean Air Act violations but not others, and that gives us some pause,” it also notes that prior decisions did “not involve the number and variety of violations that this case does (24 different pollutants).” Moreover, the panel observes, prior cases generally considered emissions of just one or two pollutants. Here, in addition to two dozen pollutants, plaintiffs “assert a variety of aesthetic and health-related injuries, allegedly traceable to 24 different pollutants emitted in a variety of ways (flaring, leaks, workplace accidents, etc.),” sometimes involving trivial events such as smoke “caused by plugging in an extension cord.”

Thus “because of the great variety of the challenged emissions—both in terms of type and scale—we cannot say that Plaintiffs’ proving standing for some violations necessarily means they prove standing for the rest.” The panel then sets some parameters for proving standing. “[W]e emphasize it does not follow from the need to establish standing for each violation that separate proof of standing is needed for each violation. As we have discussed, many courts—including our court and the Supreme Court—have allowed the same testimony to support standing for multiple violations (just not the number and variety of violations at issue here). And, as always, a factfinder may rely on circumstantial evidence and draw reasonable inferences from the evidence.”

The panel holds that while plaintiffs proved the “injury” and “redressability” prongs of standing, the case had to be returned to the district court to consider “traceability.”

The traceability standard is a threshold below proving causation, though it still has teeth. It is proven by “evidence that the defendant’s violations were of a type that ‘causes or contributes to the kinds of injuries alleged by the plaintiffs.’” Some kinds of injury could easily be traced to emissions, such as “observational injuries” (the visual blight of pollution), chemical odors, and physical symptoms that lifted when plaintiffs moved away from the complex.

“But despite the district court’s sound reasoning, we must remand due to our holding that Plaintiffs needed to prove standing for each violation. The district court outlined in general terms how Exxon’s violations had injured Plaintiffs’ members; it did not assess traceability as to each violation. That is necessary because it is not apparent that all of Exxon’s violations were capable of causing the types of injuries Plaintiffs’ members suffered.”

On remand, violations that would meet that standard include those that “(1) created flaring, smoke, or haze; (2) released pollutants with chemical odors; or (3) released pollutants that cause respiratory or allergy-like symptoms.” Plaintiffs must also show, for each violation, a “geographic nexus,” i.e., that “the emitted pollutants could have reached beyond the Exxon complex into the offsite areas of Baytown where Plaintiffs’ members lived and recreated.” Larger emissions would be easier to establish: “While it is not clear that emissions of a trace amount of pollutants could have reached outside the Exxon complex to affect Plaintiffs’ member, it is reasonable to conclude that emissions in excess of 5,000 pounds of carbon monoxide or 500 pounds of sulfur dioxide—the reportable thresholds for those pollutants … —could have.” Finally, “the geographic nexus inquiry is unnecessary for any violation that could have caused or contributed to flaring, smoke, or haze, even if the emission was of a small magnitude.”

The panel allows that within this approved rubric, and “[w]hen consistent with the principles we have outlined, the court may group violations by type and magnitude in making its findings.”

In a separate opinion concurring in the judgment, Judge Oldham urges that the court grant en banc review to reconcile intracircuit conflicts on standing, and suggests that the current state of law is—if anything—too permissive.

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