United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

FILED August 30, 2022 No. 17-20545 Lyle W. Cayce Clerk

Environment Texas Citizen Lobby, Incorporated; Sierra Club,

Plaintiffs—Appellees,

versus

ExxonMobil Corporation; ExxonMobil Chemical Company; ExxonMobil Refining; Supply Company,

Defendants—Appellants.

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:10-CV-4969

Before Davis, Costa, and Oldham, Circuit Judges. Gregg Costa, Circuit Judge: Environmental groups sued ExxonMobil under the Clean Air Act for thousands of unauthorized emissions from the company’s complex in Baytown, Texas. The first time we considered the case, we found Exxon liable for many of those violations and remanded for the district court to determine an appropriate penalty. When the case came to us again a few years later, we primarily addressed whether the plaintiffs have standing to seek redress for those violations. The case now returns to us after a limited Case: 17-20545 Document: 00516452311 Page: 2 Date Filed: 08/30/2022

No. 17-20545

remand for factfinding on traceability and Exxon’s affirmative defenses. Finding no error in the district court’s fact-intensive analysis of standing or penalty, we affirm. I This long-pending Clean Air Act suit stems from operations at ExxonMobil’s massive Baytown complex. The complex, which houses a refinery, a chemical plant, and an olefins plant, is heavily regulated by federal permits that are enforced jointly by the Texas Commission on Environmental Quality and the United States Environmental Protection Agency. Environment Texas Citizen Lobby, Inc. v. ExxonMobil Corp. (ETCL I), 824 F.3d 507, 512 (5th Cir. 2016). The permits require Exxon to document, and sometimes to report, certain instances of noncompliance. Exxon’s substantive obligations and reporting requirements are explained in detail in ETCL I, 824 F.3d at 512–22. Environment Texas Citizen Lobby and Sierra Club, on behalf of their members who live, work, and recreate near Baytown, sued Exxon under the Clean Air Act’s citizen suit provision, 42 U.S.C. § 7604(a)(1), for thousands of self-reported permit violations that occurred between October 2005 and September 2013. After some litigation, Exxon stipulated to 16,386 days of violations. Env’t Tex. Citizen Lobby, Inc. v. ExxonMobil Corp. (ETCL II), 968 F.3d 357, 363 (5th Cir. 2020); see also id. at 363 n.1 (explaining that “[i]f an emissions event released multiple pollutants, each with its own emissions standard, . . . each standard violat[ion] [counts] as a separate day of violation”). Those violations fall into five categories, including unplanned emissions, emissions exceeding authorized rates, and unsafe or unauthorized flaring. See id. at 363 (describing the five types of violations). After a bench trial, the district court found only a few of the violations actionable and declined to assess a penalty against the company. Env’t Tex.

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