Judge rejects ExxonMobil move to dismiss Sierra Club Baytown suit

03 May 2013 20:56  [Source: ICIS news]

HOUSTON (ICIS)--A US judge rejected ExxonMobil's request to dismiss a lawsuit filed by environmental groups, who allege that the company's complex in Baytown, Texas, has illegally emitted millions of pounds of pollutants, they said on Friday.

The judge presiding over the case, David Hittner, had asked a magistrate to review ExxonMobil's request to dismiss the case.

That magistrate, Stephen Smith, recommended that nearly every one of ExxonMobil's grounds should be rejected.

Hittner adopted the magistrate's recommendation, allowing the lawsuit to proceed.

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.

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, according to the groups.

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.

The magistrate 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," said Smith, the magistrate. "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.

The two ExxonMobil grounds that did receive Smith's recommendation concerned only 20 violations.

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, the magistrate 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. 

In a one-page ruling, Hittner, the presiding judge, adopted Smith's recommendation. 

ExxonMobil said it was disappointed in the ruling.

"The Baytown complex operates under an aggressive state and federal regulatory system and along with local industry efforts, has produced significant improvements in air quality," the company said in a statement. "We work hard to operate within regulatory standards and continue to make significant improvements in environmental performance through emissions controls, technology enhancements and process changes."

Meanwhile, the company will continue to fight the lawsuit.

In a statement, Luke Metzger, executive director of Environment Texas, said: “The court’s ruling vindicates the rights of citizens affected by air pollution to bring polluters to justice when state and federal agencies simply are not getting the job done.”

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 (CP Chem), 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 (€1.5m) 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 CP Chem settlements were reached within two years of the lawsuits being filed.

The ExxonMobil litigation, meanwhile, remains pending.

($1 = €0.77)

By: Al Greenwood
+1 713 525 2645

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