Exxon can't shake $14.25 mln penalty for air pollution at Texas refinery
Adds comments from parties in 5th paragraph
By Nate Raymond
Dec 11 (Reuters) -A sharply divided federal appeals court on Wednesday rejected ExxonMobil Corp's bid to overturn a $14.25 million civil penalty that a judge imposed in a 14-year-old lawsuit over air pollution at its Baytown, Texas, crude oil refinery.
The New Orleans-based 5th U.S. Circuit Court of Appeals on a 9-8 vote upheld the penalty after judges on the court failed to reach a consensus on how to dispense with the appeal following more than 18 months of deliberations.
The majority of judges said had they known it would take them so long to rule after hearings arguments back in May 2023, they would never have agreed to reconsider a 2-1 panel's 2022 decision by the court upholding the penalty in the first place.
"Justice delayed is justice denied," the majority said in an unsigned opinion.
Luke Metzger, the executive director of one of the groups pursuing the case, Environment Texas, in a statement hailed the ruling as an "an extremely important victory."Exxon in a statement said it was disappointed and considering its options.
The long-running lawsuit was filed in 2010 bythe Environment Texas Citizen Lobby and Sierra Club and produced the largest penalty ever assessed in a citizen enforcement suit over air pollution brought under the Clean Air Act.
U.S. District Judge David Hittner in Houston in 2017 issued a $19.95 million penalty to Exxon, finding it was responsible for the pollution from the Baytown refinery and chemical plant complex between 2005 and 2013.
The 5th Circuit later threw out the penalty and ordered Hittner to reassess it, resulting in the judge in 2021 issuing a new $14.25 million penalty. Eight 5th Circuit judges on Wednesday voted to upholdHittner's decision.
Eight other conservative judges appointed by Republican presidents in dissenting opinions said they would have held that the plaintiffs lacked standing to seek penalties for violations of the Clean Air Act.
That left U.S. Circuit Judge James Ho, who was appointed by Republican President-elect Donald Trump in his first term. And he supported neither position, providing the ninth vote to affirm.
He pointed to the U.S. Supreme Court's 2000 ruling Friends of the Earth v. Laidlaw Environmental Services Act holding that citizens may have standing to seek penalties under the Clean Air Act.
Ho said that while he disagreed with that holding, "we aren’t truly faithful to Supreme Court precedent unless we follow it even when it hurts." But he said his preference would be to give Exxon a new chance at the trial court level to rebut the presumption the plaintiffs had standing.
"I recognize, however, that I have been unable to garner an en banc majority for my views," Ho wrote.
As a result, Ho said the court's decision to have the full court rehear the case en banc should be dismissed as "improvidently granted."
U.S. Circuit Judge Andrew Oldham, a fellow Trump appointee, accused Ho of causing "confusion on confusion" and said the court had failed to succeed in "completing the task and choosing a legal rule (any legal rule)."
The case is Environment Texas Citizen Lobby Inc v. ExxonMobil Corp, U.S. Court of Appeals for the 5th Circuit, No. 17-20545.
For the environmental groups: Philip Hilder of Hilder & Associates; and Charles Caldart and Josh Kratka of the National Environmental Law Center
For ExxonMobil: Russell Post of Beck Redden
Read more:
$14 million air pollution fine for Exxon's Baytown refinery stands
U.S. judge knocks nearly $6 million off fine for Exxon Baytown, Texas, pollution
Reporting by Nate Raymond in Boston
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