IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit

FILED July 29, 2020 No. 17-20545 Lyle W. Cayce Clerk ENVIRONMENT TEXAS CITIZEN LOBBY, INCORPORATED; SIERRA CLUB,

Plaintiffs - Appellees v. 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: The Clean Air Act authorizes “any person” to sue polluters. 42 U.S.C. § 7604(a). Any recovery goes to the government. This citizen suit provision harkens back to pre-Founding English law that allowed private individuals, through various writs, to enforce laws on behalf of the government. See Steven L. Winter, The Metaphor of Standing and the Problem of Self-Governance, 40 STAN. L. REV. 1371, 1396–99 (1988); Raoul Berger, Standing to Sue in Public Actions: Is It a Constitutional Requirement, 78 YALE L. J. 816, 827 (1969). But modern citizen suits present challenges for the Article III “cases” or “controversies” requirement under which a plaintiff must suffer an injury from Case: 17-20545 Document: 00515508326 Page: 2 Date Filed: 07/29/2020

No. 17-20545 the defendant’s conduct. See generally RICHARD FALLON ET AL, HART & WECHSLER’S THE FEDERAL COURTS AND FEDERAL SYSTEM 151–54 (5th ed. 2003). Indeed, citizen suits under two other environmental statutes—the Clean Water Act and Endangered Species Act—resulted in leading Supreme Court standing decisions. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528U.S.167, 180–81 (2000); Lujan v. Defenders of Wildlife, 504U.S.555, 560–61 (1992); . This citizen suit seeking to recover for Clean Air Act violations at the largest petroleum and petrochemical complex in the nation again raises this tension between citizen suits and Article III. The principal issue in this second appeal of the case is whether plaintiffs have standing to recover for more than 16,000 violations of emission standards. I. The ExxonMobil complex in Baytown, Texas is massive. It includes refinery, a chemical plant, and an olefins plant. Emissions from the complex are regulated in part by permits. The Texas Commission on Environmental Quality issues the permits under Title V of the Clean Air Act. The Commission, along with the EPA, enforces the permits. To monitor compliance, the Commission requires polluters to document unauthorized “emissions events”—that is, unplanned or unscheduled emissions. If the event produces pollutants in excess of thresholds, the polluter must report it to the Commission. See 30 TEX. ADMIN CODE § 101.201(a); see also id. 101.1(88), (89) (setting “reportable quantit[ies]” of emissions). We will call these “reported events.” If the event produces pollutants below reportable levels, polluters must nevertheless maintain records documenting the emission. Id. § 101.201(b). We will call these “recorded events.” In addition to the powers it gives regulators, the Clean Air Act gives citizens a role in enforcing its requirements. A citizen may seek civil penalties, 2 Case: 17-20545 Document: 00515508326 Page: 3 Date Filed: 07/29/2020

No. 17-20545 payable to