Environmental -- active

Environment Texas Citizen Lobby, Inc. v. ExxonMobil Corp.   (5th Circuit)

Citizen suit interference with environmental regulation:

On 9/18/15, the NAM filed an amicus brief, along with other business groups, in the Fifth Circuit supporting a federal judge's decision not to impose an additional $642 million in penalties on ExxonMobil for various permit violations at its large Baytown, Texas facility. We argued that citizen suits should not be used to second-guess regulatory systems with "gotcha" tactics, but have a limited role to fill in gaps that may occur. The company had been pro-active and cooperative dealing with the regulatory agencies, and courts should not interfere with that process.

On 5/27/16, the Fifth Circuit concluded that the district court erred in both its count of the correct number of “actionable” violations and its assessment of penalties in light of those violations. The Fifth Circuit determined that the district court analyzed alleged violations inconsistently, determining certain violations were “undisputed” in one part of the analysis but then requiring corroboration of those same violations in another section. The Fifth Circuit also held that the district court abused its discretion when it determined that, even if every alleged violation were actionable, a penalty would still not be warranted.

On remand, the groups reduced their requested amount of penalties from $642 million to about $40 million, and the district judge awarded them about $20 million, prompting Exxon’s appeal. The plaintiffs asked for an additional $6 million in fees. On January 19, 2018, the NAM and other leading business associations filed another amicus brief arguing that the Constitution and Clean Air Act limit citizen suits under the Clean Air Act. We have asked the Fifth Circuit to enforce the constitutional line that limits federal courts to deciding discrete cases and controversies and prevents them from acting as regulators or policymakers.

Related Documents:
NAM amicus brief  (January 19, 2018)
NAM amicus brief  (September 17, 2015)


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