US court to revisit $14mn penalty for ExxonMobil

A federal appeals court said it will reconsider a $14.25mn fine against ExxonMobil for thousands of alleged air pollution violations at its 584,000 b/d refinery complex in Baytown, Texas.

The 5th US Circuit Court of Appeals agreed to hold an "en banc" rehearing, under which all 16 active judges on the court will revisit the emission penalty, which if upheld would be the largest imposed through a citizen lawsuit under the Clean Air Act. The appeal will provide ExxonMobil a chance to present its argument that the penalty was excessive and should be revised.

ExxonMobil did not immediately respond to a request for comment.

Residents living near the refinery complex brought the case in 2010, claiming ExxonMobil violated its air permits thousands of times. A federal district court eventually approved a nearly $20mn penalty, which after an appeal by ExxonMobil was revised to $14.25mn based on 3,651 days of alleged air emission violations from 2005-13.

The 5th Circuit, in a 2-1 ruling last year, upheld the penalty after finding the Clean Air Act did not require the residents to prove they were harmed by each of the thousands of alleged violations. The court rejected ExxonMobil's claims that it could only be fined on the 40 days it said residents showed they were harmed by Baytown's emissions.

The 5th Circuit, in a short order today, threw out last year's decision so the full court can reconsider. The court has tentatively scheduled oral arguments on the case for the week of 15 May.

The nonprofit Environment Texas, which filed the case on behalf of residents, said it was hopeful the 5th Circuit would conclude the case and require ExxonMobil to pay penalties imposed years ago.

"Despite essentially conceding in this litigation that it committed over 16,000 violations of the Clean Air Act, Exxon's now 14-year-long effort to avoid taking responsibility for its illegal pollution is seemingly unending," Environment Texas director Luke Metzger said.

The US Environmental Protection Agency, which is not directly a party in the case, last month filed a "friends of the court" brief urging the 5th Circuit not to grant rehearing. For citizen lawsuit cases under the Clean Air Act, the agency said residents only have to show ongoing harm from a facility to have legal standing to bring a case, rather than having to prove injuries for every day of alleged violations.

By Chris Knight