Sierra Club seeks to build on progress in ExxonMobil Baytown case

04 April 2013 19:47  [Source: ICIS news]

HOUSTON (ICIS)--The Sierra Club and another environmental group seek to build on a judge's recommendations in a clean-air lawsuit they filed against ExxonMobil, recommendations which will allow the litigation to proceed mostly intact, a lawyer representing the groups said on Thursday.

In December 2010, the Sierra Club and Environment Texas sued ExxonMobil in US District Court, Southern Texas District. They alleged that the company's Baytown complex has illegally emitted more than 8m lb (3,600 tonnes) of pollutants into the air over a five-year period. Baytown is the largest integrated petrochemical and refinery complex in the US.

The Sierra Club accused ExxonMobil of approximately 15,000 clean-air violations, as documented in filings the company made to the Texas Commission on Environmental Quality (TCEQ).

The groups filed the lawsuit under the Clean Air Act's citizen-suit provision.

The provision allows private citizens allegedly harmed by clean-air violations to file a federal lawsuit after providing 60 days prior notice. The violations cannot be part of any civil action being pursued by state and federal regulators.

In response to the Baytown lawsuit, ExxonMobil filed a motion for summary judgment, making various arguments that the judge should throw out the case.

ExxonMobil based its request on eight grounds. Those grounds were considered by a magistrate judge, who was charged with making a recommendation to the judge presiding over the case.

That magistrate judge, Stephen Smith, rejected all but two of ExxonMobil's grounds.

Out of the grounds raised by ExxonMobil, the most significant one for the case was the first, said Josh Kratka, senior attorney for the National Environmental Law Center at Boston. The firm is representing the Sierra Club and Environment Texas.

This ground would have disposed of the entire case, according to court documents.

In it, ExxonMobil alleged that the groups' lawsuit amounted to second-guessing environmental regulators. Such second-guessing falls outside of the scope of the provision that authorises citizen lawsuits under the US Clean Air Act.

Smith disagreed. Such second-guessing is precisely the point of allowing citizen lawsuits to take place, he wrote in his recommendation.

"Citizen suits were intended to be a mechanism for the public to second-guess the adequacy of an agency's response to Clean Air Act violations," Smith said. "A citizen suit is itself an integral part of the regulatory scheme created by Congress."

Smith recommended that ExxonMobil's first ground for summary judgment should be denied.

One of the grounds that did win Smith's recommendation concerned only 20 violations.

When companies violate the Clean Air Act, they are required to file reports with the state environmental regulator. These reports provide details about the violation.

ExxonMobil had provided evidence that the reports for 20 violations turned out to be inaccurate, Smith said. The incidents were not violations at all, and they should not have been reported in the first place.

Smith agreed and recommended that those 20 violations should be excluded from the case.

In the second ground, ExxonMobil said that another small portion of the violations were already being address in a 2005 agreement that the company reached with the US Environmental Protection Agency (EPA).

This so-called consent decree covered ExxonMobil's Baytown complex as well as other plants, Smith said. Violations covered by such consent decrees can fall outside of the scope of a citizen lawsuit.

As a result, Smith recommended that these violations should be removed from the litigation.

Now that Smith has made his recommendations, ExxonMobil and the Sierra Club have about two weeks to raise objections.

Those objections, as well as Smith's recommendations, will be considered by the judge presiding over the lawsuit, David Hittner. He will then decide whether to grant or deny ExxonMobil's request for summary judgment.

ExxonMobil declined to comment, citing company policy that prohibits the company from discussing pending litigation.

Kratka said the Sierra Club will likely argue that the violations under the consent decree should be included in the lawsuit.

The Baytown litigation is the third citizen lawsuit in which the Sierra Club has recently participated.

In 2009, the Sierra Club and Environment Texas sued Chevron Phillips Chemical, alleging that the company violated the Clean Air Act at its complex in Cedar Bayou, Texas.

The two sides reached a settlement in 2010, in which Chevron Phillips agreed to give $2m (€1.6m) to a local college and cap upset emissions to 35,000 lb/year, an 85% reduction from those released in 2008.

In 2008, the two groups sued Shell, alleging that the company's Deer Park complex in Texas violated pollution regulations.

In 2009, the two sides reached a settlement, and Shell agreed to pay $5.8m and reduce upset emissions by 80%.

Both the Shell and the Chevron Phillips settlements were reached within two years of the lawsuits being filed.

The ExxonMobil litigation, meanwhile, remains pending.

"ExxonMobil has shown no willingness whatsoever to negotiate and has essentially fought the suit tooth and nail from day one," Kratka said.

The case is taking up large amounts of resources, even amid concerns that other plants could be emitting large amounts of pollutants into the atmosphere, he said.

($1 = €0.78)

By: Al Greenwood
+1 713 525 2645

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