Petition for Writ of Certiorari — ExxonMobil Corporation, et al., Petitioners v. Environment Texas Citizen Lobby, Incorporated, et al.

Supreme Court briefMar 11, 2025

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No. ______

In the

Supreme Court of the United States

EXXONMOBIL CORPORATION; EXXONMOBIL

CHEMICAL COMPANY; EXXONMOBIL REFINING &

SUPPLY COMPANY,

Petitioners,

ENVIRONMENT TEXAS CITIZEN LOBBY, INCORPORATED;

SIERRA CLUB,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

RUSSELL S. POST

BECK REDDEN LLP

1221 McKinney

Suite 4500

Houston, TX 77010

GREGORY G. GARRE

Counsel of Record

ROMAN MARTINEZ

JORDAN R. GOLDBERG

CHRISTINA R. GAY

LATHAM & WATKINS LLP

555 Eleventh Street, NW

Suite 1000

Washington, DC 20004

(202) 637-2207

gregory.garre@lw.com

Counsel for Petitioners

QUESTIONS PRESENTED

The fractured, en banc Fifth Circuit decision below

affirmed liability in one of the largest Clean Air Act

(CAA) citizen-suit cases of all time, authorizing

millions of dollars in civil penalties against

petitioners. But for the vast majority of those

penalties, plaintiffs—respondents here—never traced

their alleged injuries to an actual legal violation by

ExxonMobil—as distinct from the thousands of

pounds of lawful emissions that ExxonMobil daily

produced or emissions from other companies. And

plaintiffs and their members will never see a penny of

those penalties, which are payable only to the U.S.

Treasury. The upshot is that ExxonMobil has been

ordered to pay civil penalties that plaintiffs will never

receive, for harms that were never traced to any legal

violations by ExxonMobil—a result that Judge Jones,

in dissent, aptly described as “disastrous for future

litigants.” App.97a. The questions presented are:

1. Whether, as the Fifth Circuit has held, a

plaintiff in a CAA citizen suit may satisfy Article III’s

traceability requirement merely by showing that she

suffered the “kinds of injuries” that defendants’

conduct “could have” caused.

2. Whether this Court should overrule its holding,

in Friends of the Earth, Inc. v. Laidlaw

Environmental Services (TOC), Inc., 528 U.S. 167

(2000), that the availability of civil penalties paid to

the government can satisfy Article III’s redressability

requirement for private, citizen-suit plaintiffs.

RULE 29.6 STATEMENT

Petitioner Exxon Mobil Corporation certifies that

it is a publicly traded corporation with no corporate

parent. No publicly held corporation owns 10% or

more of Exxon Mobil Corporation’s stock.

Petitioners ExxonMobil Chemical Company and

ExxonMobil Refining & Supply Company were at one

point wholly owned divisions of Exxon Mobil

Corporation, but have since been moved into

ExxonMobil Product Solutions Company, which is

itself a wholly owned division of Exxon Mobil

Corporation.

RELATED PROCEEDINGS

The following proceedings are directly related to

this petition:

Environment Texas Citizens Lobby, Inc. et al. v.

ExxonMobil Corp. et al., No. 17-20545 (5th Cir.).

Final en banc judgment entered December 11, 2024;

prior panel judgments entered August 30, 2022 and

July 29, 2020.

Environment Texas Citizens Lobby, Inc. et al. v.

ExxonMobil Corp. et al., No. 15-20030 (5th Cir.).

Judgment entered May 27, 2016.

Environment Texas Citizens Lobby, Inc. et al. v.

ExxonMobil Corp. et al., No. 10-cv-4969 (S.D. Tex.).

Judgment entered March 2, 2021; prior judgments

entered April 26, 2017 and December 17, 2014.

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ....................................... i

RULE 29.6 STATEMENT.......................................... ii

RELATED PROCEEDINGS ...................................... ii

TABLE OF AUTHORITIES .................................... vii

OPINIONS AND ORDERS BELOW ..........................1

JURISDICTION ..........................................................1

STATUTORY PROVISIONS INVOLVED .................1

INTRODUCTION .......................................................2

STATEMENT OF THE CASE ....................................5

A. Factual Background ....................................5

Baytown Complex And Authorized

Emissions At The Complex .................5

ExxonMobil Emits Far Less Than

Authorized And Invests Heavily In

Compliance Measures .........................6

Texas Authorities Enforce The

Title V Permits Based On

ExxonMobil’s Self-Reporting ...............6

B. Procedural Background ...............................8

Initial Proceedings...............................8

ETCL II ..............................................10

ETCL III ............................................12

ETCL IV (En Banc) ...........................13

TABLE OF CONTENTS—Continued

Page

REASONS FOR GRANTING THE WRIT................16

The Fifth Circuit’s Lax Traceability Rule For

Environmental Cases Warrants Review ..........16

A. The Fifth Circuit’s Traceability Rules

For Environmental Citizen Suits

Conflict With The Decisions Of This

Court ..........................................................17

B. The Decision Below Reflects Significant

Confusion Among The Circuits .................20

C. The Fifth Circuit’s Traceability Rules

Produce Anomalous Consequences ...........25

II.

The Court Should Reconsider And Overrule

Laidlaw’s Redressability Holding ....................26

A. Laidlaw Was Wrongly Decided .................27

B. Stare Decisis Does Not Support

Retaining Laidlaw .....................................31

III. The Questions Presented Are Important And

Warrant Review In This Case ..........................33

CONCLUSION ..........................................................35

APPENDIX

Opinion of the United States Court of Appeals

for the Fifth Circuit, Environment Texas

Citizen Lobby, Inc. v. ExxonMobil Corp.,

123 F.4th 309 (5th Cir. 2024) .............................1a

TABLE OF CONTENTS—Continued

Page

Second Revised Findings of Fact & Conclusions

of Law of the United States District Court

for the Southern District of Texas,

Environment Texas Citizen Lobby, Inc. v.

ExxonMobil Corp., 524 F. Supp. 3d 547

(S.D. Tex. 2021)...............................................201a

Opinion of the United States Court of Appeals

for the Fifth Circuit, Environment Texas

Citizen Lobby, Inc. v. ExxonMobil Corp., 47

F.4th 408 (5th Cir. 2022) ................................256a

Opinion of the United States Court of Appeals

for the Fifth Circuit, Environment Texas

Citizen Lobby, Inc. v. ExxonMobil Corp.,

968 F.3d 357 (5th Cir. 2020) ..........................290a

Revised Findings of Fact & Conclusions of Law

of the United States District Court for the

Southern District of Texas, Environment

Texas Citizen Lobby, Inc. v. ExxonMobil

Corp., No. H-10-4969, 2017 WL 2331679

(S.D. Tex. Apr. 26, 2017), ECF No. 258 .........327a

Opinion of the United States Court of Appeals

for the Fifth Circuit, Environment Texas

Citizen Lobby, Inc. v. ExxonMobil Corp.,

824 F.3d 507 (5th Cir. 2016) ..........................423a

Findings of Fact & Conclusions of Law of the

United States District Court for the

Southern District of Texas, Environment

Texas Citizen Lobby, Inc. v. ExxonMobil

Corp., 66 F. Supp. 3d 875 (S.D. Tex. 2014) ....473a

TABLE OF CONTENTS—Continued

Page

Order Granting Petition for Rehearing En

Banc, No. 17-20545, Environment Texas

Citizen Lobby, Inc. v. ExxonMobil Corp.

(5th Cir. Feb. 4, 2023), ECF No. 313-3 ..........547a

42 U.S.C. § 7604 ....................................................549a

42 U.S.C. § 7413(e) ................................................551a

vii

TABLE OF AUTHORITIES

Page(s)

CASES

In re Aiken County,

725 F.3d 255 (D.C. Cir. 2013) ..............................34

California v. Texas,

593 U.S. 659 (2021) ..............................................18

Clapper v. Amnesty International USA,

568 U.S. 398 (2013) ..............................................26

DaimlerChrysler Corp. v. Cuno,

547 U.S. 332 (2006) ..........................................2, 18

Davis v. FEC,

554 U.S. 724 (2008) ........................................17, 20

Department of Commerce v. New York,

588 U.S. 752 (2019) ..............................................18

Department of Transportation v.

Association of American Railroads,

575 U.S. 43 (2015) ................................................34

FDA v. Alliance for Hippocratic Medicine,

602 U.S. 367 (2024) ................................................2

Fischer v. Governor of New Jersey,

842 F. App’x 741 (3d Cir.), cert. denied,

142 S. Ct. 426 (2021)............................................23

Friends of the Earth, Inc. v. Gaston Copper

Recycling Corp.,

204 F.3d 149 (4th Cir. 2000)..........................22, 28

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Friends of the Earth, Inc. v. Laidlaw

Environmental Services (TOC), Inc.,

149 F.3d 303 (4th Cir. 1998)................................28

Friends of the Earth, Inc. v. Laidlaw

Environmental Services (TOC), Inc.,

528 U.S. 167 (2000) ..................... 3, 9, 27-31, 33-34

Knick v. Township of Scott,

588 U.S. 180 (2019) ..............................................31

LaSpina v. SEIU Pennsylvania State

Council,

985 F.3d 278 (3d Cir. 2021) .................................23

Linda R.S. v. Richard D.,

410 U.S. 614 (1973) ..............................................29

Loper Bright Enterprises v. Raimondo,

603 U.S. 369 (2024) ..............................................31

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) ..............................................18

Massachusetts v. EPA,

549 U.S. 497 (2007) ..............................................33

Payne v. Tennessee,

501 U.S. 808 (1991) ..............................................31

Public Interest Reseach Group of New

Jersey, Inc. v. Powell Duffryn Terminals

Inc.,

913 F.2d 64 (3d Cir. 1990), cert. denied,

498 U.S. 1109 (1991) ......................................21, 22

TABLE OF AUTHORITIES—Continued

Page(s)

Sierra Club, Lone Star Chapter v. Cedar

Point Oil Co. (Cedar Point),

73 F.3d 546 (5th Cir.), cert. denied, 519

U.S. 811 (1996)......................................... 11, 19, 22

Steel Co. v. Citizens for a Better

Environment,

523 U.S. 83 (1998) ..........................................27, 28

TransUnion LLC v. Ramirez,

594 U.S. 413 (2021) ............ 2, 17, 18, 27, 30, 32, 33

United States v. Texas,

599 U.S. 670 (2023) ........................................29, 32

Utah Physicians for a Healthy Environment

v. Diesel Power Gear, LLC,

21 F.4th 1229 (10th Cir. 2021) ......................22, 24

FEDERAL STATUTES AND REGULATIONS

28 U.S.C. § 1254(1)......................................................1

42 U.S.C. § 7407(a)......................................................7

42 U.S.C. § 7410 ..........................................................7

42 U.S.C. § 7413(e)(2) .................................................8

42 U.S.C. § 7604 ..........................................................8

42 U.S.C. § 7604(a)(1) .................................................8

42 U.S.C. § 7604(a)(3) .................................................8

42 U.S.C. § 7604(f)(4) ..................................................8

TABLE OF AUTHORITIES—Continued

Page(s)

42 U.S.C. § 7604(g)(1) .................................................8

40 C.F.R. § 19.4 ...........................................................8

STATE REGULATIONS

30 Tex. Admin. Code § 101.1(72) ................................7

30 Tex. Admin. Code § 101.1(88) ................................7

30 Tex. Admin. Code §§ 101.201-.233 ........................7

30 Tex. Admin. Code § 101.201(a)-(b) ........................7

OTHER AUTHORITIES

John D. Echeverria, Critiquing Laidlaw:

Congressional Power to Confer Standing

and the Irrelevance of Mootness Doctrine

to Civil Penalties, 11 Duke Env’t L. &

Pol’y F. 287 (2001) .........................................28, 32

Paige Lambert, Citizen Suits for Mobile

Sources: Enforcement Against Incidents

of Emissions Cheating, 32 Colo. Nat.

Res., Energy & Env’t L. Rev. 341 (2021) ............23

Amanda J. Masucci, Stand By Me: The

Fourth Circuit Raises Standing

Requirements in Friends of the Earth,

Inc. v. Gaston Copper Recycling Corp.:

Just As Long As You Stand, Stand By

Me, 12 Vill. Env’t L.J. 171 (2001) ........................23

TABLE OF AUTHORITIES—Continued

Page(s)

Note, Causation in Environmental Law:

Lessons from Toxic Torts, 128 Harv. L.

Rev. 2256 (2015) ..................................................23

PETITION FOR A WRIT OF CERTIORARI

Petitioners Exxon Mobil Corp., ExxonMobil

Chemical Co., and ExxonMobil Refining & Supply Co.

(together, ExxonMobil) respectfully petition this

Court for a writ of certiorari to review the judgment

of the United States Court of Appeals for the Fifth

Circuit in this case.

OPINIONS AND ORDERS BELOW

The en banc opinion of the court of appeals is

reported at 123 F.4th 309 (5th Cir. 2024) (App.1a200a). The decision of the district court affirmed below

is reported at 524 F. Supp. 3d 547 (S.D. Tex. 2021)

(App.201a-55a).

The panel decisions in this case are reported at 47

F.4th 408 (5th Cir. 2022) (App.256a-89a); 968 F.3d

357 (5th Cir. 2020) (App.290a-326a); and 824 F.3d 507

(5th Cir. 2016) (App.423a-72a). One of the prior

district court decisions in this case is unreported and

available at 2017 WL 2331679 (S.D. Tex. Apr. 26,

2017) (App.327a-422a); the other prior district court

decision is reported at 66 F. Supp. 3d 875 (S.D. Tex.

2014) (App.473a-546a). The Fifth Circuit’s order

granting rehearing en banc is unreported but

available at App.547a-48a.

JURISDICTION

The en banc court of appeals entered judgment on

December 11, 2024.

App.1a.

This Court has

jurisdiction under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

Relevant statutory provisions are reproduced in

the petition appendix. App.549a-54a.

INTRODUCTION

Article III and its touchstone standing

requirements are crucial to “ensuring that the

Federal Judiciary respects ‘the proper—and properly

limited—role of the courts in a democratic society.’”

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 337

(2006).

This case presents two important and

recurring questions concerning the requirements for

establishing Article III standing in environmental

citizen-suit actions seeking civil penalties. Those

questions divided the en banc Fifth Circuit below in

the most extreme fashion possible and, as the Fifth

Circuit dissenters warned, produced a result that will

be “disastrous for future litigants” if left unreviewed by

this Court. App.97a (Jones, J., dissenting).

The first question concerns the traceability

requirement for establishing Article III standing.

This Court has recently reaffirmed the “central[ity]”

of that requirement. FDA v. Alliance for Hippocratic

Med., 602 U.S. 367, 383 (2024). And to satisfy

traceability, the Court has been clear that plaintiffs

must prove their injuries were “likely caused” by

defendants’ legal violations. TransUnion LLC v.

Ramirez, 594 U.S. 413, 423 (2021). But when it comes

to environmental citizen suits under the Clean Air

Act (CAA), several circuits—including the Fifth

Circuit—have adopted a novel standard that grossly

departs from this Court’s precedents: A plaintiff may

establish standing simply by showing that her

injuries are the “kinds of injuries” that defendants’

conduct “could have” caused. App.208a (emphasis

added). As Judge Oldham emphasized in a series of

dissents at the panel stage below—and seven other

dissenters stressed at the en banc stage—that

standard has no foundation in Article III and

effectively grants environmental plaintiffs “standing

in gross.” Id. at 282a; see id. at 158a-59a. It also has

led to chaos and uncertainty among the courts that

have adopted this misguided framework. The Court

should grant review to make clear that ordinary

Article III principles—including the requirement of

showing that a plaintiff’s injuries were “likely caused”

by the defendant—apply to environmental suits.

The second question concerns the redressability

requirement. In Friends of the Earth, Inc. v. Laidlaw

Environmental Services (TOC), Inc., this Court held

that Article III redressability can be satisfied in a

citizen suit for environmental harm by civil penalties

paid to the U.S. Treasury. 528 U.S. 167, 185-86

(2000). Laidlaw relied on the deterrent effects that

such penalties may have on defendants, even when

penalties do not directly benefit a plaintiff. Id. But

as Justice Scalia (joined by Justice Thomas) explained

in dissent in Laidlaw—and Judge Ho echoed below—

this “preposterous” theory of general deterrence is

“speculative as a matter of law,” and inconsistent with

basic standing principles. Id. at 202, 205; App.77a80a. No stare decisis factors support retaining this

anomalous precedent, and Laidlaw has only grown

more aberrant in the wake of intervening precedents.

As Judge Oldham observed below, this case presents

a “particularly good vehicle” to reconsider it.

App.289a n.3. The Court should do so and overrule

Laidlaw.

This case—one of the largest CAA actions in

history—underscores the need for this Court’s review

of those questions. Through 15 years of proceedings,

plaintiffs have extracted nearly $15 million in

penalties from petitioners (collectively, ExxonMobil),

based on thousands of “emissions events” at a facility

in Texas. Yet through all of that, plaintiffs’ members

have traced their actual injuries to only five

“emissions events” attributable to ExxonMobil,

resulting in about 40 CAA violations, such as

unsightly flares or foul odors arising from certain

emissions. And even the district court that ordered

these penalties held that the alleged injuries on which

the penalties award was based “could have been

caused by Exxon’s authorized emissions or other

companies’ emissions.” Id. at 537a. Nor will plaintiffs

ever see a penny of the penalties at issue; under the

CAA, all of those penalties will go to the U.S.

Treasury. The upshot is that ExxonMobil is being

ordered to pay penalties for claimed injuries that no

one has traced to ExxonMobil, and which will benefit

only the U.S. Treasury—not the plaintiffs.

The Fifth Circuit granted rehearing en banc to

review that paradoxical result and bring its standing

precedent in line with this Court’s. But then the full

court radically divided on the questions presented

and produced only a per curiam decision affirming the

decision below, along with six separate opinions

grappling with the issues. Of the seventeen judges on

the en banc panel, only one—Chief Judge Elrod,

whose footnoted concurrence proved decisive—

actually agreed with affirming the Fifth Circuit’s

relaxed standing standard. Id. at 2a n.**. Yet that

flawed standard remains the law of the Fifth Circuit.

Nothing is normal about the way the Fifth Circuit’s

en banc process broke down in this case. But the

smoldering rubble that this case left behind below

underscores the need for this Court’s intervention.

The petition should be granted.

STATEMENT OF THE CASE

A. Factual Background

1. Baytown Complex And Authorized

Emissions At The Complex

ExxonMobil operates a major industrial complex

in Baytown, Texas that is one of the largest and most

technologically advanced refining and petrochemical

complexes in the world. App.475a-76a. But its

complex is not alone. “The nearby area … is populated

with numerous other refineries, petrochemical plants,

and industrial facilities.” Id. at 476a.

The Baytown complex is governed by over 120,000

conditions in permits issued under Title V of the

Clean Air Act (CAA), which are jointly enforced by the

Texas Commission on Environmental Quality (TCEQ)

and U.S. Environmental Protection Agency (EPA).

Id. at 476a-77a. These permits set hourly and yearly

emissions limits on two dozen different pollutants

from a huge number of specific emissions sources at

the complex, as well as things like flares. Id. at 106a07a (Jones, J., dissenting). Together, these permits

“allow[ed] Exxon[Mobil] to emit” thousands of pounds

in approved emissions per hour during the relevant

period. Id. at 107a.

The Baytown refinery’s permit included conditions

prohibiting any “upset emissions,” defined as an

“unplanned and unavoidable breakdown or excursion

of a process or operation that results in unauthorized

emissions.” Id. Under these conditions, any “upset

emission” constituted a permit violation even if it fell

within both an hourly and yearly emission limit. Id.

For example, a single momentary gas leak, lasting

only a few seconds anywhere in the 10,000 miles of

pipe at the Baytown complex, could qualify as a

violation.

2. ExxonMobil Emits Far Less Than

Authorized And Invests Heavily In

Compliance Measures

ExxonMobil never came close to exceeding the

annual emissions limits in its permits at the Baytown

complex. In fact, during the relevant time, its total

emissions—taking all authorized and unauthorized

emissions together—were consistently between

around 30% and 40% of that amount. Id. at 110a.

And ExxonMobil’s total unauthorized emissions were

no more than 2% of the complex’s total authorized

emissions for each year (and often lower). Id.

Even so, ExxonMobil continued improving its

compliance and maintenance efforts throughout the

period at issue—and long before plaintiffs sued. For

instance, between 2005 and 2013 alone, ExxonMobil

spent more than $1 billion on environmental

improvements at the Baytown complex, and over $5.2

billion on maintenance more broadly. Id. at 109a-10a.

These measures paid off: During the period at issue,

unauthorized emissions at the complex plummeted by

95%, “[l]ikely due to Exxon’s substantial efforts”—and

not as a result of this lawsuit. Id. at 527a.

3. Texas Authorities Enforce The Title V

Permits Based On ExxonMobil’s SelfReporting

As the district court found below (and EPA and the

TCEQ agree), “it is not possible to operate any

facility—especially one as complex as [Baytown]—in

a manner that eliminates all” unauthorized emissions

events. See id. at 344a, 488a, 527a.

Government enforcement accounts for this reality.

The TCEQ—with approval of EPA—regulates permit

compliance through a comprehensive set of rules,

which largely depend on self-reporting. 42 U.S.C.

§§ 7407(a), 7410;

Tex.

Admin.

Code

§§ 101.201-.233. Those rules distinguish “reportable

emissions events” from “recordable emissions events.”

Each involve “unauthorized emissions,” but

“[]recordable emissions event[s]” are less serious and

less potentially harmful than “[r]eportable emissions

event[s].” 30 Tex. Admin. Code § 101.1(72), (88); see

id. § 101.201(a)-(b). Regulated entities must selfreport all “reportable” events to the TCEQ, but must

only document “recordable” events.

App.478a.

Recordable events can include nominal emissions

violations like a “‘fire’ in a cigarette-butt can that

lasted less than one minute.” Id. at 108a (Jones, J.,

dissenting). The TCEQ investigates all reported

events and decides if enforcement is warranted.

This case involves 241 reportable emissions events

and 3,735 recordable events that took place between

2005 and 2013—all based on ExxonMobil’s own selfreporting and self-recording of those events. Id.

at 399a. The TCEQ investigated all 241 reportable

events and assessed penalties of $1,146,132; Harris

County also assessed $277,500 in penalties for some

of the same events, for a total of $1,423,632 in

penalties for past permit violations. Id. at 480a, 535a.

In addition, in February 2012, ExxonMobil and

the TCEQ agreed on an enforcement order regarding

the complex (the Agreed Order). Id. at 484a-86a. The

Agreed Order resolved enforcement for certain past

reportable events; established stipulated penalties for

any future reportable events; required specified

emissions reductions; and mandated implementation

of four environmental improvement projects. Id.

B. Procedural Background

Dissatisfied with the TCEQ’s enforcement decisions,

in 2010 plaintiffs Environment Texas Citizens Lobby,

Inc. (ETCL) and the Sierra Club launched this action

under the CAA’s “citizen suit” provision. 42 U.S.C.

§ 7604. That statute allows “any person” to sue

anyone who (1) has repeatedly “violated” any CAA

emission standard, including the terms of any Title V

permits, or (2) is currently “in violation” of any such

standard at the time of suit. Id. § 7604(a)(1), (f)(4).

In such a suit, a district court may either order

compliance with emissions standards through an

injunction, or “apply any appropriate civil penalties.”

Id. § 7604(a)(3). Penalties are available “for each day

of violation” caused by an emissions event. Id.

§ 7413(e)(2). If an emissions event releases multiple

pollutants, each with its own emissions limit, each

standard that is violated counts as a separate “day of

violation” for each day it persists. App.111a & n.9.

For the period at issue, CAA civil penalties reached a

maximum of $37,500 per violation day. 42 U.S.C.

§ 7413(e)(2); 40 C.F.R. § 19.4.

But those civil

penalties are not payable to the citizen plaintiff;

instead, they are deposited in a “special fund” in the

U.S. Treasury. 42 U.S.C. § 7604(g)(1).

1. Initial Proceedings

a. In 2010, plaintiffs sued ExxonMobil seeking

over a billion dollars in civil penalties. App.474a & n.3.

They sought civil penalties for every reportable and

recordable emissions event that occurred at the

Baytown complex between October 2005 and

September 2013, seeking the maximum penalty for

each of the 16,386 “days of violation” reported or

recorded by ExxonMobil. See id. at 429a, 526a, 530a.

In seeking to show standing, plaintiffs relied on the

testimony of four of their members with a connection

to Baytown, who claimed they had smelled odors; seen

flares, smoke, and haze; experienced respiratory

issues and anxiety; or refrained from certain

activities as a result of these events. Id. at 490a-502a.

In 2014, after a thirteen-day bench trial, the

district court denied all relief, concluding that

ExxonMobil engaged in only a handful of “actionable”

CAA violations and that, even if all the violations had

been “actionable,” neither civil penalties nor equitable

relief was warranted. Id. at 540a-46a.

The district court held that, under binding Fifth

Circuit precedent, plaintiffs had established standing

to sue for more than sixteen thousand violation

days—even though plaintiffs had only traced any of

their injuries to five emissions events by ExxonMobil

that violated a CAA emissions standard or limitation,

representing only 44 violation days. Id. at 497a-502a.

The court reasoned that, because plaintiffs had some

injuries that were traceable to some emissions events,

“the traceability requirement [wa]s satisfied” for all

violations at issue. Id. at 499a-501a. In addition,

based on the notion that penalties can “deter future

violations,” the court held that the redressability

requirement was satisfied across the board—with no

further analysis—under Friends of the Earth, Inc. v.

Laidlaw Environmental Services (TOC), Inc., 528

U.S. 167, 185 (2000). Id. at 501a-02a.

But the district court awarded no relief. In so

holding, the court noted ExxonMobil’s significant

compliance efforts, major emissions reductions, and

the impossibility of avoiding all violations at the

Baytown complex. Id. at 524a-41a. And it found that

ExxonMobil’s violations were not very “serious,”

explaining that there was no “credible evidence that

any of the [many thousands of emissions events

challenged by plaintiffs] were of a duration and

concentration to—even potentially—adversely affect

human health or the environment.” Id. at 534a-40a.

And the court further found that, as for the “nuisancetype impacts” like smelling odors, suffering

respiratory issues, and hearing disruptive noises,

“these impacts could have been caused by Exxon’s

authorized emissions or other companies’ emissions.”

Id. As the court explained, many “emissions and flares

are authorized by permit and the nearby area in

which the Complex operates is populated with

numerous other refineries, petrochemical plants, and

industrial facilities.” Id. at 537a-38a.

Plaintiffs appealed, and the Fifth Circuit vacated

and remanded. Id. at 423a-72a. The Fifth Circuit

held that the district court erred in finding only a

handful of “actionable” violations, id. at 431a-49a,

and abused its discretion in assessing some of the

penalty factors, id. at 449a-70a.

2. ETCL II

On remand, the district court (again) found that

plaintiffs had standing for all violations at issue—

many thousands—even though plaintiffs had only

traced their injuries to five emissions events by

ExxonMobil that violated a CAA emissions standard

or limitation, representing only 44 violation days. Id.

at 354a-59a. The court then deemed all 16,386

violation days claimed by plaintiffs actionable,

imposing a $19.95 million civil penalty. Id. at 295a.

ExxonMobil appealed, and, in a divided decision,

the Fifth Circuit vacated and remanded. Id. at 290a326a. This time, the Fifth Circuit focused on Article

III standing. The court unanimously agreed with

ExxonMobil that, because “[CAA] penalties are tied to

violations,” plaintiffs “must prove standing for each

violation they alleged.” Id. at 297a-98a. And because

“[t]he district court [merely] outlined in general terms

how Exxon’s violations had injured Plaintiffs’

members,” but “did not assess traceability as to each

violation,” the court vacated and remanded for the

district court to assess traceability for each “violation”

for which plaintiffs sought a penalty. Id. at 307a.

But the majority then introduced the central

mistake leading to the chaos in this case. Relying on

the Fifth Circuit’s prior decision in Sierra Club, Lone

Star Chapter v. Cedar Point Oil Co. (Cedar Point), 73

F.3d 546, 557 (5th Cir.), cert. denied, 519 U.S. 811

(1996), the majority made clear that, on remand, the

district court should not follow ordinary traceability

rules. App.305a-11a. Instead, under the special

environmental standing rules the Fifth Circuit

adopted in Cedar Point, the court held it was enough

for plaintiffs to show that “the defendant’s violations

were of a type that ‘causes or contributes to the kinds

of injuries alleged by the plaintiffs.’” Id. at 305a-06a

(quoting Cedar Point, 73 F.3d at 557).

Following Cedar Point, the majority thus

instructed that, on remand, plaintiffs must make two

showings. First, plaintiffs must show “that each

violation in support of their claims ‘causes or

contributes to the kinds of injuries’ they allege”; and

second, they must show “that the violation could have

affected their members.” Id. at 307a (quoting Cedar

Point, 73 F.3d at 557, 558 n.24) (emphasis added).

Judge Oldham dissented from the majority’s

traceability ruling. Id. at 318a-26a. He observed that

Cedar Point contravenes this Court’s standing

precedents and produced incongruous results. Id.

Indeed, he explained that simply proving violations

“could have” caused the “‘kinds of injuries’” alleged

“eliminates traceability altogether.” Id. at 320a. For

instance, under the Fifth Circuit’s test, “[i]t’s enough

to say that someone has asthma; pollutant X can

cause asthma; therefore, pollutant X caused

someone’s asthma.” Id. But that approach eliminates

any causation requirement and “cannot be squared

with Article III ….” Id. at 326a.

Foreshadowing the case’s path, he observed that,

“[a]t some point, our en banc court should bring our

precedent in line with the Constitution.” Id.

3. ETCL III

Back in district court, in 2021 the court followed

the Fifth Circuit’s instructions and found traceability

for 3,651 violation days—even though (1) plaintiffs

had only “correlated” injuries arising from five

emissions events—totaling 44 violation days—to

ExxonMobil’s conduct; and (2) the district court again

recognized that plaintiffs’ injuries “could have been

caused by Exxon’s authorized emissions or other

companies’ emissions.” Id. at 249a-51a & n.121.

Given the reduced number of violations, the court

reduced the penalty to $14.25 million. Id. at 254a-55a.

ExxonMobil appealed, and the same divided panel

affirmed—adhering to the “framework” established in

ETCL II. Id. at 256a-89a. Judge Oldham dissented

again, arguing that a proper application of this

Court’s Article III precedents would limit plaintiffs’

standing to five emissions events that violated a CAA

emissions standard or limitation, representing 44—

not 3,651—violation days. Id. at 278a-89a. He

warned that “[t]he implications of the majority’s

approach are alarming,” including because it “all but

erases the distinction between private citizens and

the government agencies that otherwise enforce the

[CAA].” Id. at 289a. Judge Oldham also highlighted

another “problem lurking” in the case: redressability.

Id. at 288a n.3. And he noted that “this case appears

to be a particularly good vehicle to consider the

contours of Laidlaw’s redressability holding.” Id.

4. ETCL IV (En Banc)

The full Fifth Circuit then ordered rehearing en

banc, vacated the second and third panel opinions,

and, in a deeply fractured judgment with numerous

separate opinions, affirmed the district court’s 2021

decision by the narrowest possible margin in a per

curiam decision. Id. at 1a-200a.

a. Judge Davis, joined by six other judges,

concurred but did not embrace the Cedar Point

framework. Instead, he would have gone further and

affirmed the district court’s 2017 judgment finding

traceability established for all 16,386 violation days.

Id. at 3a. As he saw it, CAA penalties are not

“retrospective” and tied to specific past violations or

emissions events; instead, they “prospective[ly]” allow

plaintiffs to trace their injuries to ExxonMobil’s future

conduct, giving them standing to pursue civil

penalties for all past violations, regardless whether

those violations actually injured plaintiffs. Id. at 12a47a. Judge Davis thus found Cedar Point’s lax

traceability rules more than sufficient to satisfy

Article III’s traceability requirement, and so voted to

affirm the district court’s finding of traceability for

3,651 violation days. See id. at 3a, 47a-65a.

b. Judge Jones, joined by seven other judges

(including Judge Oldham), dissented. Id. at 97a159a. She argued that Judge Davis’s theory of

“prospective

standing”

was

“a

meaningless

mischaracterization” of the Court’s Article III

precedents, which “effectively condones ‘standing in

gross’ in environmental cases,” and “exceeds the

proper limits of federal courts’ jurisdiction”—in

violation of Article III. Id. at 102a-03a, 152a.

Taking aim at Cedar Point, too, Judge Jones

argued that the only traceability rule consistent with

Article III requires plaintiffs to “demonstrate by a

preponderance of the evidence that each violation for

which they seek a civil penalty was a cause-in-fact of

their injuries.” Id. at 103a. This does not require “an

exact,

contemporaneous

correlation

between

Plaintiffs’ injuries and specific violations”—but it

would require “proof of a ‘traceable’ connection

between Plaintiffs’ specific injuries at specific periods

of time and repeated, ongoing violations of permit

terms or conditions for each pollutant that is relevant

to the injuries.” Id. at 129a. Cedar Point, on the other

hand,

provides

“constitutionally

dubious

framework,” is a “poor factual fit for CAA cases,” has

produced “irrational results” in this case and others,

and “arguably eliminates traceability altogether.” Id.

at 140a-41a.

The majority’s application of that

standard here, she noted, not only “violates the

requirements of Article III,” id. at 148a, but is

“disastrous for future litigants,” id. at 97a.

c. Judge Richman, who joined Judge Jones’s

dissent, separately dissented, echoing Judge Jones’s

traceability concerns. See id. at 160a-73a.

d. Judge Oldham, who had previously dissented,

separately dissented again. Id. at 174a-200a. He

explained that “Judge Davis’s concurrence would

exacerbate the constitutional tension in citizen suits,”

id. at 183a, and also addressed problems with the en

banc process, see id. at 174a-200a.

e. Judge Ho issued a separate opinion arguing, on

procedural grounds, that the court should dismiss the

order granting rehearing en banc as improvidently

granted. Id. at 77a-96a. But on the merits, Judge Ho

criticized the “curious conclusion,” in Laidlaw, that

civil penalties payable to the U.S. Treasury can ever

establish redressability—echoing Justice Scalia’s

“powerful[]” dissent in that case. Id. at 77a-78a.

Judge Ho also highlighted the “[m]any” other circuit

judges—including Judges Luttig, Niemeyer, and

Hamilton—who have criticized Laidlaw, even as they

apply it as binding precedent. Id. at 79a.

f. With seven judges of the en banc Fifth Circuit

(led by Judge Davis) embracing the novel “prospective

theory” of standing but still voting to affirm, eight

judges (led by Judge Jones) rejecting both that theory

and Cedar Point, and Judge Ho voting to dismiss the

en banc proceedings and affirm, the tally stood at 8-8.

The decisive vote came from Chief Judge Elrod, who—

in a footnoted, cryptic separate concurrence—wrote

that ETCL II and III (and the district court) “got it

right” under Cedar Point, so should be affirmed. Id.

at 2a n.**.

After the dust settled, the bottom line was this:

Fifteen judges on the en banc court declined to

embrace the Cedar Point traceability standard. Yet,

with Chief Judge Elrod’s concurrence and Judge Ho’s

vote to dismiss, that is exactly the rule that the en

banc court “affirm[ed]” below. Id. at 2a.

REASONS FOR GRANTING THE WRIT

This case implicates two important questions of

Article III standing that repeatedly arise in

environmental citizen-suit cases. Those questions

sharply divided the full Fifth Circuit below, and have

plagued other circuits as well. The Fifth Circuit’s

relaxed rule for establishing traceability in

environmental cases sanctions “standing in gross”

and is profoundly wrong under this Court’s

precedents. Likewise, Justices of this Court and

others have rightly expressed concerns about this

Court’s redressability ruling in Laidlaw, which the

Fifth Circuit also applied below. This case presents

an ideal vehicle to address, and resolve, both of those

important questions and eliminate a run-away

standing regime that Judge Jones aptly called

“disastrous.” App.97a. Certiorari is warranted.

I. The Fifth Circuit’s Lax Traceability Rule For

Environmental Cases Warrants Review

The district court in this case thrice found that

plaintiffs failed to introduce “credible evidence that

any of the” violations at issue “were of a duration and

concentration to—even potentially—adversely affect

human health or the environment.” App.536a-37a; see

id. at 249a n.121 (“reiterat[ing]” this finding), 412a

n.256 (same). And even as to the “nuisance-type”

injuries plaintiffs’ members claimed—like seeing

flaring or hearing noises—the court held that

plaintiffs had “correlate[d]” only five emissions

events, representing 44 violation days, to any such

injuries. Id. at 500a, 538a. Yet the district court

nevertheless imposed—and the court of appeals

affirmed—millions of dollars in penalties for

thousands of CAA violation days, based on a finding

that plaintiffs’ members’ injuries were “fairly

traceable” to those violation days. Id. at 229a, 251a;

id. at 2a-3a (per curiam) (affirming).

That anomalous result was only possible because

of a special, made-for-citizen-suits standing rule

adopted by the Fifth Circuit, which dramatically

departs from this Court’s precedents and sanctions

“standing in gross” in strikingly broad terms. Indeed,

in this case, five actual emissions events magically

produced standing to sue for thousands of other

violations, without any showing that plaintiffs were

likely injured by any of those violations. That is a

textbook example of “standing in gross.”

And

precisely because this newfound rule has no sound

basis in Article III, courts have become deeply

confused about its application and contours—as

reflected in the profoundly fractured decisions below.

The Court’s review is urgently needed to make clear

that Article III’s traceability requirement applies to

citizen suits just like any other lawsuit.

A. The Fifth Circuit’s Traceability Rules For

Environmental Citizen Suits Conflict

With The Decisions Of This Court

1. Basic Article III principles require plaintiffs to

prove that each of their injuries was likely caused by

the defendants’ alleged legal violation.

“[S]tanding is not dispensed in gross; rather,

plaintiffs must demonstrate standing for each claim

that they press and for each form of relief that they

seek.” TransUnion LLC v. Ramirez, 594 U.S. 413, 431

(2021) (citing Davis v. FEC, 554 U.S. 724, 734 (2008)).

There is thus no “commutative” theory of standing,

under which standing to sue over one injury or claim

confers a right to bring other related, yet distinct,

claims that may arise from a “common nucleus of

operative fact.” DaimlerChrysler Corp. v. Cuno, 547

U.S. 332, 351-52 (2006).

Otherwise, plaintiffs

suffering from one single injury caused by a defendant

could sue to “enforce general compliance with

regulatory law,” even as to violations that did not, in

fact, harm them. TransUnion, 594 U.S. at 430 n.3.

As to traceability in particular, the Court has

repeatedly held, and recently reaffirmed, that a

plaintiff must show “that [his] injury was likely

caused by the defendant.” Id. (emphasis added);

Department of Com. v. New York, 588 U.S. 752, 768

(2019) (traceability requires “de facto causality”);

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560

(1992) (similar). And not only must the injury at issue

be caused by the defendant’s conduct in general—it

must be traceable “to [its] ‘allegedly unlawful

conduct.’” California v. Texas, 593 U.S. 659, 669

(2021) (emphasis added).

Together, these principles establish that a

plaintiff seeking to prove traceability must show, for

each injury they suffered, that a particular legal

violation “likely caused” the harm over which they are

suing. TransUnion, 594 U.S. at 423. Here, that

meant that plaintiffs had to prove, with evidence, that

each violation of a Title V emission standard likely

caused them a concrete injury. See App.297a-301a.

2. The Fifth Circuit—following the lead of other

circuits before it, see infra 21-23—has adopted an

exception to these general principles, unique to the

context of environmental citizen suits under the CAA

and Clean Water Act (CWA)—which allows plaintiffs

to sue for violations even when they cannot show that

the violation caused any injuries they experienced.

In the Fifth Circuit, a citizen-suit plaintiff need

not show that her injury was “likely caused” by any

particular violation of the CAA. Instead, a plaintiff

need only show “that the defendant’s violations were

of a type that ‘causes or contributes to the kinds of

injuries alleged.’” App.305a-06a (emphasis added)

(quoting Sierra Club, Lone Star Chapter v. Cedar

Point Oil Co. (Cedar Point), 73 F.3d 546, 557 (5th

Cir.), cert. denied, 519 U.S. 811 (1996)). Under this

“Cedar Point” standard, the legal violation at issue

need not actually cause the harm the plaintiff suffers;

it must simply “contribute[] to” the same “kind[] of

injury,” as long as the violation “could have affected”

the plaintiff. Id. at 305a-07a (emphases added).

That standard drove the outcome in this case. As

the Fifth Circuit explained in ETCL II, any violation

satisfied Cedar Point’s “kinds of injuries” standard “if

it (1) created flaring, smoke, or haze; (2) released

pollutants with chemical odors; or (3) released

pollutants that cause respiratory or allergy-like

symptoms”—because those were the “‘kinds of

injuries’” plaintiffs suffered. App.307a. And so long

as any of those violations resulted in emissions that

“could have reached beyond the Exxon complex,” they

could have affected a plaintiff. Id. at 308a (emphasis

added). That is the rule the district court applied in

its decision below that the en banc court ultimately

“affirmed” in ETCL IV. Id. at 2a-3a.

3. As Judge Oldham explained, Cedar Point

“contravenes Lujan and its progeny,” and is

“‘incongruous with our usual understanding of the

Article III standing requirements.’” Id. at 319a-20a.

Allowing suit for injuries that merely “‘cause[] or

contribute to the kinds of injuries at issue’” is the

“most pernicious” aspect of the Cedar Point

framework; indeed, doing so “eliminates traceability

altogether.” Id. at 320a. As Judge Oldham explained,

a court would “[n]ever say: [a] house burned down;

arsonists burn down houses; therefore, an arsonist

burned down [this] house.” Id. Yet Cedar Point

embraces that fallacy. Id. As Judge Jones explained,

under Cedar Point, once a plaintiff who lives

somewhere near an emitting facility shows a single

harm resulting from a single violation, liability

follows for essentially all CAA violations of a similar

“kind[],” regardless whether those violations actually

or likely affected the plaintiff at all. Id. at 128a, 140a.

This is the epitome of “standing in gross.” Under

the decision below, a plaintiff who once witnessed,

and claimed to be afraid of, a “flaring” emission could

sue over every other similar violation, regardless

whether it affected the plaintiff. Id. at 145a-46a. This

Court has long disapproved of such “[s]tanding … in

gross.” Davis, 554 U.S. at 734. But the full Fifth

Circuit erroneously upheld that rule below.

B. The Decision Below Reflects Significant

Confusion Among The Circuits

The Fifth Circuit is not alone in its confusion over

Article III traceability. The decisions below represent

much broader struggles, among the lower courts, to

reconcile environmental citizen suits with the

demands of Article III. Lacking guidance from this

Court, those courts have cobbled together a muddled

mess of tests, attempting to fit the square peg of

citizen suits into the round hole of Article III

standing. The result is a chaotic patchwork of ipse

dixit rulings, conflicting standards, and nonsensical

outcomes. Only this Court can provide the clarity

needed to restore order to Article III’s traceability

requirement in environmental citizen suits.

1. As Judge Oldham explained, “[t]he mess

started in 1990” when the Third Circuit invented its

own three-part traceability test for CWA citizen suits.

App.318a (discussing Public Interest Rsch. Grp. of

N.J., Inc. v. Powell Duffryn Terminals Inc., 913 F.2d

64, 72 (3d Cir. 1990), cert. denied, 498 U.S. 1109

(1991)). Under this “Powell Duffryn” framework,

citizen-suit plaintiffs do not need to answer the usual

Article III “causation” question, and instead need only

demonstrate that the defendant has (1) discharged

pollutants in concentrations greater than allowed by

its permit; (2) into a waterway in which the plaintiffs

had an interest that could be adversely affected by

that discharge; and (3) the pollutant causes or

contributes to the kinds of injuries alleged. Powell

Duffryn, 913 F.2d at 72. As Judge Oldham observed,

it is far from clear “how the Third Circuit devised that

standard because the court cited nothing at all to

support it.” App.319a. But so began the problem.

Nor is Judge Oldham the only skeptic of the Powell

Duffryn framework.

Despite concurring in the

decision, Judge Aldisert candidly admitted his

“serious[]” reservations that Powell Duffryn’s

traceability holding would “survive careful Supreme

Court review.” 913 F.2d at 83. Yet, despite his

“nagging doubt about standing,” Judge Aldisert

joined the majority opinion—“with the shakiest of

jurisprudential confidence”—based on his misguided

belief that this Court was inclined “to relax its

stringent requirements of standing in environmental

cases.” Id. at 83-84. Reluctantly applying what he

perceived to be an “evolving” principle favoring

“expand[ed]” standing in environmental cases, Judge

Aldisert still stressed that, “[w]ere this not an

environment case, [the plaintiff’s showing] certainly

would not be [enough to demonstrate standing].” Id.

at 89.

2. The “mess” that started in Powell Duffryn has

since spread throughout the country—and reached a

breaking point in the deeply fractured decisions

below. Precisely because this doctrine has no mooring

in any solid Article III principles, it has unleashed

chaos—spawning baseless standards, confusion, and

absurd consequences in courts across the country.

The Fifth Circuit was the first to rely on Powell

Duffryn’s “ipse dixit” in Cedar Point—oddly, without

even analyzing this Court’s canonical Article III

decision in Lujan. App.319a (Oldham, J., concurring

in part, dissenting in part, and concurring in the

judgment). Even more perplexing, when adopting the

Powell Duffryn framework in Cedar Point, the Fifth

Circuit expressly acknowledged that a “literal reading

of Powell Duffryn may produce results incongruous

with our usual understanding of the Article III

standing requirements.” Cedar Point, 73 F.3d at 558

n.24. But the Fifth Circuit adopted the Third

Circuit’s test all the same—and has since expanded

it, as in this case, to the CAA context.

And the virus has spread. As Judge Oldham

explained, other courts have blindly expanded Powell

Duffryn’s “‘incongruous’” outcomes to new contexts,

producing an “ever-growing mountain of ipse dixits

and logical fallacies” anchored in the misguided

Powell Duffryn and Cedar Point decisions. App.321a22a; see, e.g., Friends of the Earth, Inc. v. Gaston

Copper Recycling Corp., 204 F.3d 149, 161 (4th Cir.

2000) (relying on Powell Duffryn and Cedar Point in

CWA case); Utah Physicians for a Healthy Env’t v.

Diesel Power Gear, LLC, 21 F.4th 1229, 1244-46 (10th

Cir. 2021) (same in CAA case).

Moreover, even these circuits cannot agree on how,

and when, to apply the Powell Duffryn framework. As

scholars have noted, the “dearth of guidance for

circuit courts struggling to reconcile the Supreme

Court’s cases” on Article III standing with

environmental citizen suits has led those courts to

“take[] it upon themselves to define the elements of

standing” in this context.1 Unsurprisingly, those

circuits “clearly disagree over the definition and

application of those requirements.”2

For instance, the circuits do not agree on what

kind of causation is required. As Judge Oldham

noted, some demand “but-for” causation, while others

accept only causation-in-fact. See App.320a-21a.

Compare LaSpina v. SEIU Pa. State Council, 985

F.3d 278, 284-85 (3d Cir. 2021) (requiring but-for

causation), and Fischer v. Governor of N.J., 842 F.

App’x 741, 754-55 (3d Cir.) (Phipps, J., concurring in

part and concurring in the judgment) (noting

confusion and pointing to Judge Oldham’s separate

writings below), cert. denied, 142 S. Ct. 426 (2021),

Amanda J. Masucci, Stand By Me: The Fourth Circuit

Raises Standing Requirements in Friends of the Earth, Inc. v.

Gaston Copper Recycling Corp.: Just As Long As You Stand,

Stand By Me, 12 Vill. Env’t L.J. 171, 189 (2001).

Id.; see Paige Lambert, Citizen Suits for Mobile Sources:

Enforcement Against Incidents of Emissions Cheating, 32 Colo.

Nat. Res., Energy & Env’t L. Rev. 341, 356 (2021) (“Different

circuits have adopted variations of a standard for traceability in

the pollution context ....”); Note, Causation in Environmental

Law: Lessons from Toxic Torts, 128 Harv. L. Rev. 2256, 2256

(2015) (explaining that “[t]he treatment of causation has been

particularly inconsistent in environmental cases”).

with App.279a-80a (rejecting but-for causation).

Cedar Point does not require either.

The circuits also disagree on whether there is a

“geographic … nexus” limitation on Cedar Point

standing. See Utah Physicians, 21 F.4th at 1247.

And they also disagree whether the Powell DuffrynCedar Point standard should apply at all in CAA

cases. Compare App.140a (Jones, J., dissenting)

(explaining why it was “irrational” to apply this

standard to CAA cases), with App.3a, 208a (applying

Cedar Point in CAA case), and Utah Physicians, 21

F.4th at 1244-45 (same). And the list goes on.

The lower courts’ ongoing struggle with the Powell

Duffryn-Cedar Point framework highlights that

framework’s lack of any principled legal basis. This

confusion has persisted for decades, has led to various

lax and undisciplined approaches to the standing

analysis, and, as the train wreck below underscores,

will not resolve itself without this Court’s

intervention.

In the end, the real problem is the courts’ deviation

from the normal standing requirement of showing

that a violation likely harmed a plaintiff and their

willingness to develop a relaxed standing rule for

environmental citizen-suit cases. A decision holding

that the normal standing requirement applies to

environmental citizen-suit cases just like other cases

would eliminate the problem at its core—and obviate

the need to resolve any questions about how to apply

the Fifth Circuit’s Cedar Point rule. The Court should

grant certiorari in this case and eliminate that

unworkable and unfounded exception.

C. The Fifth Circuit’s Traceability Rules

Produce Anomalous Consequences

The result below starkly illustrates the deeply

“illogical” consequences of the Cedar Point

framework—and obvious Article III problems with

Cedar Point. App.145a (Jones, J., dissenting).

The ruling below affirmed millions of dollars in

penalties for injuries that plaintiffs did not, and likely

could not, prove were caused—or even likely caused—

by any of ExxonMobil’s legal violations. In the

proceedings below, plaintiffs were able to identify

only five emissions events, totaling 44 violation days,

for which they experienced a concrete injury. Id. at

150a (Jones, J. dissenting). Yet, applying the Cedar

Point standard, the district court allowed plaintiffs to

pursue penalties for roughly 3,600 additional

violation days that had no evidentiary connection to

plaintiff’s injuries, simply because they could have

caused the kinds of injuries plaintiffs experienced.

And this massively increased the penalties in play.

As Judge Jones explained, “it strains credulity to

believe” that plaintiffs’ members personally

witnessed “all 1,801 instances of flaring and all 588

instances of smoke that occurred over an eight-year

period”—and there was certainly no evidence to that

effect. Id. at 145a. Yet plaintiffs were permitted to

“presum[e]” injuries traceable to these violations,

simply because they were the same “kinds of injuries”

that plaintiffs did, at some point, experience. Id.; see

id. at 145a-46a (explaining additional anomalous

results produced by the decisions below).

At the same time, the decision below allowed civil

penalties for claimed injuries that were potentially

caused by entirely legal emissions. Plaintiffs claimed,

for example, that their injuries included smelling foul

odors—but the Baytown complex “could legally emit”

all kinds of pollutants with unpleasant smells, like

“sulfur dioxide gas, which smells like rotten eggs.” Id.

at 146a (emphasis added). Plaintiffs never even tried

to prove which of their “odoriferous injuries resulted

from unlawful emissions.” Id. at 147a (emphasis

added); see id. at 151a n.37 (explaining that “[t]he

vast majority of Exxon’s emissions are legally

authorized”). Yet the Fifth Circuit affirmed the

district court’s decision holding that plaintiffs had

standing to pursue claims for hundreds of violations

tied to these odoriferous injuries, lawful or not.

The extreme nature of this result is underscored

by the fact that there were other facilities in the area.

As the district court found, many of the “nuisancetype” injuries plaintiffs claimed also “could have been

caused by … other companies’ emissions.” Id. at 537a;

see also id. at 249a n.121. For the vast majority of

their injuries, plaintiffs did not even show that

ExxonMobil was the relevant source of the alleged

harm or violation. As the Court explained in Clapper

v. Amnesty International USA, if a plaintiff “can only

speculate as to whether any (asserted) [harm]” can be

traced to a particular legal violation rather than some

other cause, “they cannot satisfy the ‘fairly traceable’

requirement.” 568 U.S. 398, 413 (2013).

The anomalous consequences produced by the

Fifth Circuit’s rule underscore the need for review.

II. The Court Should Reconsider And Overrule

Laidlaw’s Redressability Holding

The Court should also grant review to reconsider

the “curious conclusion,” reached in Laidlaw, that

citizens have standing to seek civil penalties “even

though any civil penalties won by the plaintiffs aren’t

actually paid to the plaintiffs—they’re paid to the

United States Treasury.” App.77a (statement of Ho,

J.). As Justice Scalia (joined by Justice Thomas)

explained in dissent in Laidlaw, that holding sharply

conflicts with basic redressability principles under

Article III. See Friends of the Earth, Inc. v. Laidlaw

Env’t Servs. (TOC), Inc. v. Laidlaw Env’t Servs.

(TOC), Inc. (Laidlaw), 528 U.S 167, 204-05 (2000).

Likewise, “[m]any circuit judges have criticized

Laidlaw—while acknowledging [their] duty to follow

it.” App.79a (statement of Ho, J.). And, as Judge

Oldham observed, this case presents a “particularly

good vehicle to consider” whether that holding should

remain the law. Id. at 289a n.3.

A. Laidlaw Was Wrongly Decided

1. Article III requires plaintiffs to show that their

injuries are redressable.

This redressability

requirement “ensures that federal courts decide only

‘the rights of individuals,’ and … exercise ‘their proper

function in a limited and separated government.’”

TransUnion, 594 U.S. at 423. “[T]he choice of how to

prioritize and how aggressively to pursue legal

actions against defendants who violate the law

[usually] falls within the discretion of the Executive

Branch, not within the purview of private plaintiffs

(and their attorneys).” Id. at 429.

In Steel Co. v. Citizens for a Better Environment,

the Court applied these basic principles to a civilpenalties scheme similar to the CAA’s, in which a

citizen-suit provision allowed private plaintiffs to sue

for penalties “payable to the United States Treasury.”

523 U.S. 83, 106 (1998). As the Court explained, these

penalties “might be viewed as a sort of compensation

or redress to [the private plaintiff] if they were

payable to [the plaintiff]. But they are not.” Id. The

plaintiff therefore did not seek “remediation of its own

injury”; it instead sought “vindication of the rule of

law—the ‘undifferentiated public interest’ in faithful

execution of” the law. Id. “This does not suffice.” Id.

2. But two years later, in Laidlaw, the Court did

an abrupt “about-face.”

John D. Echeverria,

Critiquing Laidlaw: Congressional Power to Confer

Standing and the Irrelevance of Mootness Doctrine to

Civil Penalties, 11 Duke Env’t L. & Pol’y F. 287, 295

(2001). There, the Fourth Circuit had applied Steel

Co.’s basic rule: Penalties payable solely to the U.S.

Treasury “cannot redress any injury suffered by a

citizen plaintiff.” Friends of the Earth, Inc. v. Laidlaw

Env’t Servs. (TOC), Inc., 149 F.3d 303, 306 (4th Cir.

1998). But working a “sea change in constitutional

standing principles,” this Court reversed. Gaston

Copper, 204 F.3d at 164-65 (Niemeyer, J., concurring

in the judgment and in the concurring opinion of

Judge Luttig); App 77a-79a (statement of Ho, J.).

Laidlaw did not purport to overrule Steel Co.

Instead, it reasoned that Steel Co.’s redressability

holding applied only when plaintiffs sought

government-payable penalties relating to past harm.

528 U.S. at 187-88. In cases involving “ongoing

unlawful conduct,” the Court held that civil penalties

can “deter future violations” by “encourag[ing]

defendants to discontinue current violations and

deter them from committing future ones.” Id. at 18586. Even when, as here, plaintiffs will not see a penny

of direct relief, civil penalties payable to the

government can indirectly provide “redress” when

they indirectly reduce the odds of future injury.

3. As Justice Scalia’s dissent in Laidlaw

explained, the new rule that Laidlaw “cavalier[ly]”

adopted is “preposterous[ly]” wrong, has no basis in

Article III principles, and “has grave implications for

democratic governance.” Id. at 202, 204.

“[T]he traditional business of Anglo-American

courts is relief specifically tailored to the plaintiff’s

injury”—“not any sort of relief that has some

incidental benefit to the plaintiff.” Id. at 204. The

Court has therefore long held that general deterrence

is insufficient to support Article III redressability

when there is “no ‘direct relationship’ … between the

alleged injury and the claim sought to be adjudicated.”

Id. at 203. For example, a plaintiff cannot sue to

compel the prosecution of another person on the

theory that such prosecution would have a “deterrent

effect” that could reduce the likelihood of future harm

to the plaintiff. Linda R.S. v. Richard D., 410 U.S.

614, 618 (1973); see United States v. Texas, 599 U.S.

670, 692-93 (2023) (Gorsuch, J., concurring in the

judgment) (a claim that could only indirectly provide

relief would not satisfy Article III redressability). Nor

could a “federal tort plaintiff fearing repetition of [an]

injury … ask for tort damages to be paid … to other

victims as well, on the theory that those damages

would have at least some deterrent effect beneficial to

him.” Laidlaw, 528 U.S. at 204 (Scalia, J., dissenting).

So too for civil penalties. “Just as a ‘generalized

grievance’ that affects the entire citizenry cannot

satisfy the injury-in-fact requirement even though it

aggrieves the plaintiff along with everyone else, so

also a generalized remedy”—like a public penalty—

“that deters all future unlawful activity against all

persons cannot satisfy the remediation requirement.”

Id.; see App.78a-79a (statement of Ho., J.) (“agree[ing]”

with Justice Scalia’s “powerful[] dissent in Laidlaw”).

“Such deterrent effect is, so to speak, ‘speculative as a

matter of law.’” Laidlaw, 528 U.S. at 205 (Scalia, J.,

dissenting). Laidlaw’s contrary holding bucks these

core Article III principles, wrongly putting authority

to enforce general compliance with the law in private

plaintiffs’ hands even though they have no concrete

stake in the outcome of these lawsuits.

Nor is Article III the only part of the Constitution

offended by Laidlaw’s deputization of citizen-suit

plaintiffs as roving legal enforcers. Laidlaw also

poses a grave threat to Article II’s vesting of federal

executive power in the President, and the President

alone—and also undermines the crucial role of States

in federalist programs like the CAA’s.

As Justice Scalia wrote, Laidlaw’s holding “turns

over to private citizens the function of enforcing the

law.” Id. at 209. This “constitutionally bizarre”

arrangement “deprive[s]” the Executive Branch “of

[its] discretion to decide that a given violation should

not be the object of suit at all, or that the enforcement

decision should be postponed”—making each citizensuit plaintiff a “self-appointed mini-EPA.” Id. at 20910. Doing so diminishes the role of the Executive

Branch, to the benefit of private plaintiffs (and their

attorneys), all while aggrandizing the power of the

judiciary. See, e.g., TransUnion, 594 U.S. at 429.

Laidlaw’s redressability holding also diminishes

the power of the States in cooperative-federalism

regimes, like the CAA, which depend on enforcement

by States working alongside the federal government.

Here, for example, the TCEQ investigated all past

reportable violations, and decided what was sufficient

to resolve them. App.479a-86a. Yet plaintiffs have

spent the last 15 years pursuing citizen-suit claims

under the CAA to impose their own view of what the

law should require. That is a direct, and significant,

transfer of power away from the States to both the

plaintiffs’ bar and the judiciary. Neither Article II nor

Article III countenance that shift.

B. Stare Decisis Does Not Support Retaining

Laidlaw

Laidlaw is, of course, current precedent entitled to

considerations of stare decisis. See, e.g., Payne v.

Tennessee, 501 U.S. 808, 827 (1991). But “[s]tare

decisis is not an ‘inexorable command.’” Loper Bright

Enters. v. Raimondo, 603 U.S. 369, 407 (2024). That

doctrine “is at its weakest”—as here—“when [the

Court] interpret[s] the Constitution.”

Knick v.

Township of Scott, 588 U.S. 180, 202-03 (2019). And

here, each stare decisis factor weighs strongly against

retaining Laidlaw’s misguided redressability holding.

First, Laidlaw was poorly reasoned. Laidlaw’s

reasoning on redressability was “cavalier,” to say the

least. 528 U.S. at 202 (Scalia, J., dissenting). It simply

asserted that because civil penalties “can” deter legal

violations, they may lead a defendant not to violate

the law in the future, and so carry the possibility of

redressing future harms.

Id. at 186 (majority

opinion); see App.77a-79a (Ho, J., dissenting).

Second, Laidlaw’s rule is unworkable. Laidlaw

conceded that the bounds of its holding were “not easy

to ascertain,” and gave no guidance on how “likely”

deterrent effects have to be to support standing. 528

U.S. at 186-87. In response, lower courts have simply

thrown up their hands and concluded that all civil

penalties, by default, redress any ongoing or future

harms. See, e.g., App.311a-12a. This case illustrates

just how little sense that rule makes. Below, the

district court found that there was no “continuing

likelihood of recurrence” for any legal violations, that

“there is no credible evidence that any of the

[violations at issue] resulted from a recurring pattern

or that improvements could have been made to

prevent recurrence,” and that it was “not possible” to

avoid violations overall. Id. at 504a-05a & n.155,

527a-29a. It is a mystery what “deterrent” role civil

penalties can play in such a factual scenario.

Third, Laidlaw is inconsistent with this Court’s

decisions before and after it was decided. Laidlaw

was an “about-face” from Steel Co., Echeverria, supra,

at 295, and its foundations have only eroded as the

Court has since emphasized the limits imposed by

Article III’s redressability requirement, see, e.g.,

Texas, 599 U.S. at 689-704 (Gorsuch, J., concurring in

the

judgment)

(emphasizing

redressability

requirement); id. at 709 (Barrett, J., concurring in the

judgment) (same). Just as the injury a plaintiff faces

must not be “too speculative,” TransUnion, 594 U.S.

at 437-38, so too must the likelihood of real redress be

actual—not merely hypothetical.

Finally, the reliance interests here are minimal at

most. Private parties generally do not organize their

affairs around the availability of civil penalties they

will not even receive. And Congress has only rarely

adopted anomalous citizen-suit provisions like the

CAA’s; indeed, it has enacted no provisions of this

kind since Laidlaw was decided.

Below, Judge Ho invited this Court to “grant

certiorari” in this case and “reconsider[] Laidlaw in

light of Justice Scalia’s persuasive dissent.” App.84a.

Judge Oldham observed that this case is an ideal

vehicle to reconsider Laidlaw. Id. at 288a-89a n.3.

Both were right: This Court’s review is needed.

III. The Questions Presented Are Important

And Warrant Review In This Case

The obvious importance of the questions presented

heightens the case for certiorari. And the inability of

the Fifth Circuit to resolve these issues en banc

underscores the need for this Court’s intervention.

“The limitation of the judicial power to cases and

controversies ‘is crucial in maintaining the tripartite

allocation of powers set forth in the Constitution.’”

Massachusetts v. EPA, 549 U.S. 497, 547 (2007)

(Roberts, C.J., dissenting); see TransUnion, 594 U.S.

at 422-23. Every loosening of Article III standing

expands judicial authority, often (as here) at the

expense of the elected branches—in particular, the

Executive Branch. And this expansion opens the door

to baseless litigation allowing plaintiffs to invoke the

judicial power to impose enormous penalties or

judgments with potentially crippling effects.

Respecting Article III’s limits is particularly

important in citizen suits, given their inherent

encroachment on executive authority. Citizen-suit

provisions empower a virtually limitless army of

potential private enforcers—some of whom operate as

“professional citizen-suit plaintiffs”—who may be

enticed by the prospect of lucrative settlements or

litigation fees but are unchecked by the “democratic

restraints” and accountability borne by public

enforcement. App.139a n.32 (Jones, J., dissenting).

They thus risk “usurp[ing] the Executive Branch’s

principal prosecutorial responsibility under Article II

of the Constitution.” Id.

Justices of this Court have questioned whether the

citizen-suit mechanism violates Article II.

See

Laidlaw, 528 U.S. at 197 (Kennedy, J., concurring);

id. at 209 (Scalia, J., dissenting); Department of

Transp. v. Association of Am. R.R.s, 575 U.S. 43, 62

(2015) (Alito, J., concurring); In re Aiken County, 725

F.3d 255, 264 n.9 (D.C. Cir. 2013) (Kavanaugh, J.).

And they have specifically questioned Laidlaw’s

“constitutionally bizarre” result. Laidlaw, 528 U.S.

at 204, 210 (Scalia, J., dissenting).

The implications of expanding Article III standing

in citizen suits are also massive for regulated

companies. The CAA citizen suit has evolved from a

limited resource meant to supplement government

enforcement to something resembling a shakedown

racket. Because citizen suits carry with them the

potential for dramatic penalties, plus a one-sided feeshifting provision, citizen-suit plaintiffs hold “massive

bargaining power” no matter how unmeritorious their

claims. Id. at 209-10.

The en banc Fifth Circuit’s decisional breakdown

highlights the need for this Court’s intervention. The

court’s decision produced six separate opinions

grappling with the standing issues presented, and

ultimately left Cedar Point’s profoundly flawed rule

intact—even though only one judge of the seventeen

en banc judges actually agreed with that rule. Supra

13-15. As Judge Oldham explained in his multiple

dissents in this case and Judge Jones echoed in her en

banc dissent, that rule runs roughshod over Article

III’s limits and this Court’s precedents. The Fifth

Circuit’s inability to bring its standing law in line

with the Constitution calls out for this Court’s review.

The fact that this case arises from the Fifth Circuit

also heightens the need for review. The Fifth Circuit

and Gulf Coast is home to some of the nation’s most

important, heavily regulated petrochemical operations

and other industrial facilities. Those facilities are

vital to the operation and success of the U.S. economy.

Yet the Fifth Circuit’s lax standing rules put a target

on the back of the companies that operate them and

expose them to expensive, unnecessarily intrusive

and, as in this case, endless citizen-suit litigation—

even when, as here, plaintiffs cannot prove that

defendants’ actions caused them any likely harm.

That gross violation of Article III’s limits and abuse of

the courts should not be tolerated any longer.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

RUSSELL S. POST

BECK REDDEN LLP

1221 McKinney

Suite 4500

Houston, TX 77010

March 11, 2025

GREGORY G. GARRE

Counsel of Record

ROMAN MARTINEZ

JORDAN R. GOLDBERG

CHRISTINA R. GAY

LATHAM & WATKINS LLP

555 Eleventh Street, NW

Suite 1000

Washington, DC 20004

(202) 637-2207

gregory.garre@lw.com

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.