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,
V.
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 APPENDIX
VOLUME I OF II (1a-326a)
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
RUSSELL S. POST
BECK REDDEN LLP
1221 McKinney
Suite 4500
Houston, TX 77010
TABLE OF CONTENTS
VOLUME I
Page
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
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
VOLUME II
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
ii
TABLE OF CONTENTS—Continued
Page
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
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
1a
[123 F.4th 309]
UNITED STATES COURT OF APPEALS,
FOR THE FIFTH CIRCUIT
United States
Court of Appeals
Fifth Circuit
FILED
December 11, 2024
Lyle W. Cayce
Clerk
No. 17-20545
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 ELROD, Chief Judge, and DAVIS, JONES,
SMITH, STEWART, RICHMAN, SOUTHWICK, HAYNES,
GRAVES, HIGGINSON, WILLETT, HO, DUNCAN,
2a
ENGELHARDT, OLDHAM, WILSON,
Circuit Judges.*
and
DOUGLAS,
Per Curiam:**
The en banc court heard oral argument in this
matter in May 2023. That was more than eighteen
months ago. Moreover, the parties in this case have
already endured multiple appeals and remands back
to the district court, over the course of nine years.1
* JUDGE RAMIREZ joined the court after the case was
submitted and did not participate in this decision.
** CHIEF JUDGE ELROD concurs separately in the per curiam
order: I concur in the per curiam order because I believe that
our experienced district court colleague Judge Hittner’s most
recent opinion “got it right.” Env’t Tex. Citizen Lobby, Inc. v.
ExxonMobil Corp. (Exxon III), 47 F.4th 408, 423 (5th Cir. 2022),
reh’g en banc granted, vacated, 61 F.4th 1012 (5th Cir. 2023). So
too did the panel majority opinion in Exxon III, which affirmed
Judge Hittner. I would accordingly support reinstating the
Exxon III panel majority opinion, which explains far more
eloquently than I could why the district court was correct. See,
e.g., Jimenez v. Wood County, 660 F.3d 841, 844 n.1 (5th Cir.
2011) (en banc) (“[W]e reinstate those portions of the panel
opinion that decide these issues[.]”); Soffar v. Cockrell, 300 F.3d
588, 590 & n.1 (5th Cir. 2002) (en banc) (“We reinstate the
rulings of the panel concerning the grant or denial of COA as to
all issues raised by Soffar.”); Equilease Corp. v. M/V Sampson,
793 F.2d 598, 600 n.1 (5th Cir. 1986) (en banc) (“Although under
the Fifth Circuit’s internal operating procedures the effect of the
granting of a rehearing en banc is to vacate the panel opinion,
the court today reinstates the panel’s ruling in Parts II, III, IV,
and V of its opinion.” (citations omitted)).
1 The first appeal in this matter was argued on February 2,
2016, and decided on May 27, 2016—over eight years ago. See
824 F.3d 507. After remand to the district court, this subsequent
appeal was initiated in this court in August 2017. It was first
argued on November 7, 2018, and decided on July 29, 2020. See
968 F.3d 357. After a limited remand to the district court, the
3a
Another remand would mean that the appellate
proceedings in this matter will have delayed
resolution of this case by over a decade. Justice
delayed is justice denied. Had we known that it would
take a year and a half after en banc oral argument to
issue an opinion, we would not have granted en banc
rehearing. We accordingly AFFIRM the judgment of
the district court, dated March 2, 2021.2
W. EUGENE DAVIS, Circuit Judge, concurring, joined
by STEWART, SOUTHWICK, HAYNES, GRAVES,
HIGGINSON, and DOUGLAS, Circuit Judges:
We concur in the per curiam opinion for the
reasons it expresses. However, we would prefer to
affirm the district court’s April 26, 2017 judgment for
the reasons expressed in the opinion below.
***
Plaintiffs-Appellees Environment Texas Citizen
Lobby, Inc. and Sierra Club, on behalf of their
members, brought this Clean Air Act (“CAA”) citizen
suit against ExxonMobil Corporation and its affiliates
(“Exxon”) seeking civil penalties, payable to the U.S.
Treasury, for thousands of unauthorized emissions
from Exxon’s Baytown, Texas complex between
October 2005 and September 2013. The principal
issue before the en banc Court is whether Plaintiffs’
appeal returned to our court. It was argued on June 28, 2022,
and decided on August 30, 2022. See 47 F.4th 408. We
subsequently granted rehearing en banc on February 17, 2023—
twenty-one months ago. See 61 F.4th 1012.
2 We note that other courts have vacated their orders
granting rehearing en banc as improvidently granted. See, e.g.,
Aposhian v. Wilkinson, 989 F.3d 890, 891 (10th Cir. 2021);
Gonzales v. McKune, 279 F.3d 922, 924 (10th Cir. 2002); United
States v. Collins, 462 F.2d 792, 802 (2d Cir. 1972).
4a
members, who live, work, and recreate near Exxon’s
facility, have a sufficient “personal stake”1 in
curtailing Exxon’s ongoing and future unlawful
emissions of hazardous pollutants. We conclude that
the district court correctly held that Plaintiffs
established standing for each of their claims and did
not abuse its discretion in awarding a penalty of
$19.95 million against Exxon to deter it from
committing future violations. Accordingly, we would
AFFIRM the district court’s 2017 judgment.2
I. BACKGROUND
This suit’s twelve-year factual history is recounted
in greater detail in the district court’s3 and this
Court’s prior opinions.4 Briefly stated, Exxon owns
1 See Duke Power Co. v. Carolina Env’t Study Grp., Inc., 438
U.S. 59, 72, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978) (“In essence the
standing inquiry asks whether the parties seeking to invoke the
court’s jurisdiction have ‘alleged such a personal stake in the
outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon
which the court so largely depends . . . .’ ” (citing Baker v. Carr,
369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962))).
2 Env’t Tex. Citizen Lobby, Inc. v. ExxonMobil Corp. (2017
D. Ct. Op.), No. 10-4969, 2017 WL 2331679 (S.D. Tex. Apr. 26,
2017).
3 Env’t Tex. Citizen Lobby, Inc. v. ExxonMobil Corp. (2014
D. Ct. Op.), 66 F. Supp. 3d 875 (S.D. Tex. 2014); 2017 D. Ct. Op.,
2017 WL 2331679; and Env’t Tex. Citizen Lobby, Inc. v.
ExxonMobil Corp. (2021 D. Ct. Op.), 524 F. Supp. 3d 547 (S.D.
Tex. 2021).
4 Env’t Tex. Citizen Lobby, Inc. v. ExxonMobil Corp. (ETCL
I), 824 F.3d 507 (5th Cir. 2016); Env’t Tex. Citizen Lobby, Inc. v.
ExxonMobil Corp. (ETCL II), 968 F.3d 357 (5th Cir. 2020), reh’g
en banc granted, vacated by 61 F.4th 1012 (5th Cir. 2023) (mem.)
(per curiam); and Env’t Tex. Citizen Lobby, Inc. v. ExxonMobil
5a
and operates a complex in the city of Baytown
consisting of a refinery, olefins plant, and chemical
plant (collectively the “Complex”). It is the largest
petroleum and petrochemical complex in the United
States and covers 3,400 acres, with a circumference of
almost 13.6 miles. And, of relevance here, the
Complex is located near several residential areas in
Baytown, with some homes as close as 2,000 yards
from its fence line.
The Complex is governed by emission permits
issued under Title V of the CAA.
The Texas
Commission on Environmental Quality (“TCEQ”) and
the United States Environmental Protection Agency
(“EPA”) are jointly responsible for enforcing these
permits and regulating Exxon’s emissions at the
Complex. In order to monitor compliance, state
regulations require Exxon to document and, in some
instances, self-report incidents of noncompliance with
its permits.5
On December 13, 2010, Plaintiffs Environment
Texas Citizen Lobby, Inc. and Sierra Club, on behalf
of their members, sued Exxon for its ongoing permit
violations under the CAA’s citizen-suit provision, 42
U.S.C. § 7604(a)(1).
Plaintiffs’ members include
individuals who live, work, and recreate next to the
massive Baytown Complex and have suffered
physical, psychological, curtailment, and aesthetic
injuries as a result of Exxon’s ongoing unlawful
emissions. Plaintiffs requested relief in the form of
Corp. (ETCL III), 47 F.4th 408 (5th Cir. 2022), reh’g en banc
granted, vacated by 61 F.4th 1012.
5 We discussed Exxon’s reporting obligations under state
regulations in greater detail in ETCL I, 824 F.3d at 512–22, and
ETCL II, 968 F.3d at 362–63.
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civil penalties, payable to the U.S. Treasury, to deter
Exxon from continuing to violate its permits in the
future.6
It is undisputed that Exxon has a history of
repeatedly violating its Title V permits. During the
pendency of this suit, Exxon stipulated to
spreadsheets documenting its thousands of permit
violations between October 2005 and September
2013.7 Throughout this eight-year claims period,
Exxon committed on average more than one permit
violation per day, resulting in the unlawful emission
of nearly ten million pounds of pollutants. Out of the
ten million pounds unlawfully emitted from the
Complex, nine million pounds were “criteria
pollutants” which the EPA has determined “cause or
contribute to air pollution which may reasonably be
anticipated to endanger public health or welfare.”8
In February 2014, following a thirteen-day bench
trial in which twenty-five witnesses testified and
1,148 exhibits were admitted, the district court found
that although Plaintiffs had Article III standing, only
a few days of Exxon’s violations were “actionable”
under the CAA.9 The court therefore declined to
6 In addition to civil penalties, Plaintiffs initially sought
injunctive and declaratory relief, attorney’s fees and costs, and
the appointment of a special master. The only form of relief at
issue on appeal is civil penalties.
7 ETCL I, 824 F.3d at 514.
8 42 U.S.C. § 7408(a)(1)(A).
9 2014 D. Ct. Op., 66 F. Supp. 3d at 880 n.1, 895–904. A
violation is “actionable” under the CAA only if it was repeated
(i.e., happened more than once) or is ongoing at the time of the
complaint (i.e., happened at least once before the complaint, and
at least once afterwards). ETCL I, 824 F.3d at 518–19.
7a
impose civil penalties. Plaintiffs appealed. A panel
of this Court reversed and remanded, holding that the
district court had analyzed “actionability” too
narrowly.10
On remand, the district court again found that
Plaintiffs had standing and held that Exxon was
liable for 16,386 days of violations and imposed a
$19.95 million civil penalty.11 This time, Exxon
appealed, challenging the district court’s judgment on
the issues of standing, affirmative defenses, and
penalty factors.12 A divided panel of this Court held
that Plaintiffs had established the injury-in-fact and
redressability prongs of Article III standing, but
ordered a “limited remand” for additional analysis on
which of Exxon’s violations satisfied the “fairly
traceable” requirement of standing.13 The panel
majority provided a “rubric” to guide the district
court’s traceability analysis on remand.
On the second remand, the district court applied
the panel’s “rubric” and held that Plaintiffs
established traceability for 3,651 days of violations
and reduced the penalty award to $14.25 million.14
For the second time, Exxon appealed the district
court’s standing and penalty holdings, and the same
divided panel of this Court affirmed.15
In response, the full Court ordered rehearing en
banc and vacated the second and third panel
10 ETCL I, 824 F.3d at 515–23, 533–34.
11 2017 D. Ct. Op., 2017 WL 2331679, at *9–11, 29, 32.
12 ETCL II, 968 F.3d at 364.
13 Id. at 367–75.
14 2021 D. Ct. Op., 524 F. Supp. 3d at 565, 577.
15 ETCL III, 47 F.4th at 413.
8a
opinions.16 Now, before the en banc court, Exxon
maintains that Plaintiffs lack standing because their
members only “correlated” their injuries to five
emissions events (representing only forty days of
violations), and Exxon has already taken “corrective
actions” as to those five events. Accordingly, Exxon
contends we should vacate the district court’s
judgment and dismiss the case. Plaintiffs argue that
under established precedent they have standing and
urge us to affirm the district court’s 2017 judgment.
II. LAW & DISCUSSION
A. CAA’s Citizen-Suit Provision
The CAA’s citizen-suit provision authorizes “any
person” to bring a civil action against another “person
. . . who is alleged to have violated (if there is evidence
that the alleged violation has been repeated) or to be
in violation . . . of an emission standard or limitation
under [the Act].”17 The CAA in turn defines “emission
standard” or “emission limitation” as “a requirement
established by the State or the [EPA] Administrator
which limits the quantity, rate, or concentration of
emissions of air pollutants on a continuous basis.”18
Congress enacted the citizen-suit provision to
“encourage citizen participation in the enforcement of
standards and regulations established under th[e
Clean Air] Act . . . and intended the section to afford
16 Env’t Tex. Citizen Lobby, Inc. v. ExxonMobil Corp., 61
F.4th 1012 (5th Cir. 2023) (mem.) (per curiam).
17 42 U.S.C. § 7604(a).
18 Id. § 7602(k).
9a
citizens very broad opportunities to participate in the
effort to prevent and abate air pollution.”19
If a defendant is found liable, the district court is
authorized “to apply any appropriate civil
penalties.”20 If imposed, civil penalties are deposited
into a “special fund” in the United States Treasury.21
In determining whether to assess a penalty and, if so,
in what amount, district courts must consider seven
enumerated factors, including: “the size of the
business, the economic impact of the penalty on the
business, the violator’s full compliance history and
good faith efforts to comply, the duration of the
violation . . . , payment by the violator of penalties
previously assessed for the same violation, the
economic benefit of noncompliance, and the
seriousness of the violation.”22 The court may also
consider any unenumerated factors “as justice may
require.”23 If the court finds a penalty appropriate,
the amount must be within the statutory cap in light
of the Act’s language that penalties “may be assessed
for each day of violation.”24
B. Article III Standing
Although the CAA authorizes “any person” to
bring suit, that person must still meet “the irreducible
19 Pennsylvania v. Del. Valley Citizens’ Council for Clean
Air, 478 U.S. 546, 560, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986)
(cleaned up) (internal quotation marks and citation omitted).
20 42 U.S.C. § 7604(a).
21 Id. § 7604(g).
22 Id. § 7413(e)(1).
23 Id.
24 Id. § 7413(e)(2); 40 C.F.R. § 19.4 (setting forth the
maximum penalty for each day of violation).
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constitutional minimum of standing” in order to file
suit in federal court.25 Standing is a legal question
that we review de novo.26 But we review findings of
fact related to standing for clear error.27
The requirement of Article III standing “ensures
that the parties before us retain a ‘personal stake’ in
the litigation.”28 To establish such a “personal stake,”
a plaintiff bears the burden of showing (1) an injury
in fact, (2) fairly traceable to the defendant’s
challenged conduct, (3) that is likely redressable by
the requested relief.29 Although “the proof required
to establish standing increases as the suit proceeds,
the standing inquiry remains focused on whether the
party invoking jurisdiction had the requisite stake in
the outcome when the suit was filed.”30 In cases that
25 Lujan v. Defs. of Wildlife, 504 U.S. 555, 560, 112 S.Ct.
2130, 119 L.Ed.2d 351 (1992).
26 Ctr. for Individual Freedom v. Carmouche, 449 F.3d 655,
659 (5th Cir. 2006).
27 Pederson v. La. State Univ., 213 F.3d 858, 869 (5th Cir.
2000) (citation omitted).
28 Moore v. Harper, 600 U.S. 1, 6, 143 S.Ct. 2065, 216
L.Ed.2d 729 (2023) (quoting Baker, 369 U.S. at 204, 82 S.Ct.
691).
29 Lujan, 504 U.S. at 560–61, 112 S.Ct. 2130.
30 Davis v. FEC, 554 U.S. 724, 734, 128 S.Ct. 2759, 171
L.Ed.2d 737 (2008) (citation omitted); Friends of the Earth, Inc.
v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 180, 120 S.Ct.
693, 145 L.Ed.2d 610 (2000) (“[W]e have an obligation to assure
ourselves that [plaintiffs] had Article III standing at the outset
of the litigation.”).
11a
proceed to trial, standing must be established by a
preponderance of the evidence.31
In cases like this where Plaintiffs are
organizations suing on behalf of their members, the
organization must demonstrate that: “(a) its members
would otherwise have standing to sue in their own
right; (b) the interests it seeks to protect are germane
to the organization’s purpose; and (c) neither the
claim asserted nor the relief requested requires the
participation of individual members in the lawsuit.”32
The dispute here turns on whether Plaintiffs’
members, “any one of them,” would have standing to
sue in their own right.33
Finally, “standing 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 (for example, injunctive relief and
damages).”34 The application of this fundamental
tenet of our standing jurisprudence is at the heart of
this case.
Specifically, the parties dispute: (1)
whether the standing analysis for citizen suits
seeking civil penalties is prospective or retrospective;
and (2) how to define a “claim” under the CAA for
purposes of standing. We address these two issues
first given their broader impact on our standing
31 E.T. v. Paxton, 41 F.4th 709, 714 (5th Cir. 2022) (internal
quotation marks and citation omitted).
32 Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S.
333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977).
33 Id. at 342–43, 97 S.Ct. 2434.
34 TransUnion LLC v. Ramirez, 594 U.S. 413, 431, 141
S.Ct. 2190, 210 L.Ed.2d 568 (2021) (citations omitted).
12a
analysis before turning to whether Plaintiffs have
established the three prongs of standing in this case.
1. The Standing Analysis for Civil
Penalties is Prospective.
The form of relief a plaintiff seeks impacts our
standing analysis.35 For example, when a plaintiff
seeks compensatory damages in a tort suit, we
consider standing through the lens of the plaintiff’s
past harm. On the other hand, when a plaintiff seeks
prospective relief, we consider standing through the
lens of the plaintiff’s continuing or future harm. The
question here is under which category civil
penalties—which are not paid to individual plaintiffs
but instead to the U.S. Treasury to deter future
violations—fall. Exxon contends that civil penalties
should be analyzed retrospectively as in cases seeking
past damages, whereas Plaintiffs argue civil penalties
are a form of prospective relief similar to an
injunction. We find that Plaintiffs have the superior
argument in light of Supreme Court precedent that
has repeatedly characterized citizen-suit claims for
civil penalties as seeking prospective forms of relief.
First, in Middlesex County Sewerage Authority P.
National Sea Clammers Association,36 the Supreme
Court addressed whether the Clean Water Act’s
(“CWA”)37 citizen-suit provision authorizes an
35 Attala Cnty., Miss. Branch of NAACP v. Evans, 37 F.4th
1038, 1042 (5th Cir. 2022) (citing City of Los Angeles v. Lyons,
461 U.S. 95, 103 (1983)).
36 453 U.S. 1 (1981).
37 The parties agree that the CAA’s and CWA’s citizen-suit
provisions are identical in all respects material to this case. We
agree. Congress “modeled” the CWA’s citizen-suit provision on
the CAA’s provision and therefore courts often consult cases
13a
implied private cause of action for damages. The
Court held it did not, noting that the CWA
contemplates “only prospective relief” in citizen suits,
either in the form of an injunction or the imposition of
civil penalties.38
Next, in Gwaltney of Smithfield, Ltd. P.
Chesapeake Bay Foundation, Inc., plaintiffs brought
a citizen suit seeking declaratory and injunctive
relief, civil penalties, and attorney’s fees under the
CWA against a meat-packing plant.39 The plaintiffs
alleged Gwaltney repeatedly violated its permit
conditions by exceeding its effluent limitations for five
separate pollutants between 1981 and 1984.40 But
Gwaltney’s last recorded violation occurred several
weeks before the plaintiffs filed suit, thus raising the
question whether the CWA allows citizen suits for
wholly past violations.41 The Court held the CWA
does not provide jurisdiction over wholly past
violations because “the harm sought to be addressed
by the citizen suit lies in the present or the future, not
in the past.”42
interpreting CWA provisions when analyzing issues arising
under the CAA. Gwaltney of Smithfield, Ltd. P. Chesapeake Bay
Found., Inc., 484 U.S. 49, 62 (1987) (internal quotation marks
and citation omitted); see also United States P. Anthony
Dell’Aquilla, Enters. & Subsidiaries, 150 F.3d 329, 338 n.9
(3d Cir. 1998) (acknowledging that “courts often rely upon
interpretations of the Clean Water Act to assist with an analysis
under the Clean Air Act”).
38 Middlesex, 453 U.S. at 6–7, 13–15 & n.25.
39 484 U.S. at 53–54.
40 Id.
41 Id. at 54–55.
42 Id. at 59–61, 64.
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Specifically, the Gwaltney Court noted that the
citizen-suit provision “does not authorize civil
penalties separately from injunctive relief; rather, the
two forms of relief are referred to in the same
subsection, even in the same sentence.”43 It further
observed that this “connection between injunctive
relief and civil penalties” is absent from the provision
authorizing the Administrator of the EPA to bring an
action for civil penalties, in which it “is little
questioned” that civil penalties may be recovered for
wholly past violations.44 The Court also took note of
the fact that “[m]embers of Congress frequently
characterized the citizen suit provisions as
‘abatement’ provisions or as injunctive measures.”45
In Steel Co. v. Citizens for a Better Environment,
the Court held that an environmental group seeking
civil penalties for a steel manufacturer’s wholly past
violations of the Emergency Planning and
Community Right-To-Know Act failed to satisfy the
redressability
requirement
for
standing.46
Specifically, the Court held because civil penalties are
payable to the U.S.
Treasury, they cannot be considered “as a sort of
compensation or redress to respondent.”47
Finally, in Friends of the Earth, Inc. v. Laidlaw
Environmental Services (TOC) Inc., the Supreme
Court considered a CWA citizen suit against Laidlaw,
a hazardous waste incinerator, that repeatedly
43 Id. at 58–59.
44 Id.
45 Id. at 61 (collecting citations).
46 523 U.S. 83, 86, 106–07 (1998).
47 Id. at 106.
15a
discharged various pollutants into the North Tyger
River.48 The district court found that Laidlaw
exceeded its mercury discharge limits on 489
occasions between 1987 and 1995 and imposed a civil
penalty of $405,800.49 On appeal, Laidlaw argued
that members of the environmental organizations
lacked standing because they were not suffering from
a continued injury redressable by civil penalties given
that Laidlaw had come into compliance after suit was
filed.50 The Court disagreed and held that plaintiffs
had standing under Article III to pursue their suit for
civil penalties. Specifically, the Court reaffirmed its
holdings in Gwaltney and Steel Co., but clarified that
plaintiffs can seek civil penalties for violations
ongoing or threatened at the time suit was filed.51
The Laidlaw Court’s standing analysis focused on
affidavits submitted by plaintiffs’ members who
lived52 or recreated downstream from Laidlaw’s
facility. The members averred that they terminated
their recreational activities in or around the North
Tyger River based on their concerns about the
harmful effects to their health from Laidlaw’s illegal
discharges.53 Some of the members used the river a
couple of miles downstream from the facility, whereas
others recreated up to forty miles downstream.54 The
48 528 U.S. at 176.
49 Id. at 176–79.
50 Id. at 179–80.
51 Id. at 187–88.
52 The affiants lived as close as one-quarter mile and as far
as twenty miles from Laidlaw’s facility. Id. at 181–83.
53 Id.
54 Id.
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Court found that these were cognizable injuries given
“that environmental plaintiffs adequately allege
injury in fact when they aver that they use the
affected area and are persons ‘for whom the aesthetic
and recreational values of the area will be lessened’
by the challenged activity.”55 Laidlaw disputed that
the plaintiffs established the injury-in-fact prong of
standing given that the district court’s penalty
analysis found Laidlaw’s permit violations did not
result in “any health risk or environmental harm.”56
The Court rejected this argument and clarified that
“[t]he relevant showing for purposes of Article III
standing . . . is not injury to the environment but
injury to the plaintiff” and that to “insist upon the
former rather than the latter . . . is to raise the
standing hurdle higher than the necessary showing
for success on the merits.”57
Although the issue in Laidlaw was whether
plaintiffs had standing to seek civil penalties, the
Court relied on a case involving standing to seek an
injunction when setting forth the appropriate inquiry.
It observed that in the context of an injunction, a
plaintiff has standing if he has a reasonable fear that
it is likely that a recurrence of the unlawful conduct
will occur.58 The Court then closed the circle by
stating that it was undisputed that Laidlaw’s
unlawful conduct—discharging mercury in excess of
its permit limits—was occurring at the time the
55 Id. at 183 (quoting Sierra Club v. Morton, 405 U.S. 727,
735 (1972)).
56 Id. at 181 (internal quotation marks omitted).
57 Id. at 184–85.
58 Id. (citing Lyons, 461 U.S. at 106–08 & nn.7–8).
17a
complaint was filed and that there was “nothing
‘improbable’ about the proposition that a company’s
continuous and pervasive illegal discharges of
pollutants into a river would cause nearby residents
to curtail their recreational use of that waterway and
would subject them to other economic and esthetic
harms.”59
As to redressability, the Court explained that civil
penalties redress the injuries of plaintiffs facing
ongoing violations because they “encourage
defendants to discontinue current violations and
deter them from committing future ones.”60 In
underscoring the deterrent effect of penalties, the
Court acknowledged that “penalties may serve, as an
alternative to an injunction, to deter future violations
and thereby redress the [plaintiffs’] injuries.”61
To summarize, the above cases make clear the
following: (1) citizen-suit plaintiffs may only pursue
prospective forms of relief; (2) civil penalties are a
form of prospective relief because they deter future
violations; and (3) the standing analysis for suits
seeking injunctive relief applies equally to suits
seeking civil penalties.
In light of the above
precedent, both this Court and our sister circuits have
consistently applied Laidlaw’s prospective standing
analysis to citizen-suit cases seeking injunctive relief
and civil penalties alike.62 On the other hand, Exxon,
59 See id. (explaining that “[u]nlike the dissent,” the
majority saw plaintiffs’ members’ refusal to recreate near the
river as entirely reasonable).
60 Id. at 186.
61 Id. at 174.
62 See, e.g., Chesapeake Bay Found., Inc. v. Gwaltney of
Smithfield, Ltd., 890 F.2d 690, 695 (4th Cir. 1989) (“[Plaintiffs]
18a
despite numerous opportunities, has not cited (and we
have not found) any case law that has applied its
proposed backwards-looking approach to standing
focused on individual past violations to a citizen suit
seeking civil penalties.
This is not to say that a defendant’s past violations
are irrelevant. For example, plaintiffs’ injuries from
past violations that remain ongoing can provide
must show actual or threatened injury traceable to the wrong
and a particularized interest in deterring violations of the Act,
but once they have done so, the imposition of civil penalties is
causally connected to the injury.” (internal quotation marks and
citation omitted)); Benham v. Ozark Materials River Rock, LLC,
885 F.3d 1267, 1272–73 (10th Cir. 2018) (upholding the district
court’s finding of standing following trial and noting that “the
injunctive relief and civil penalties sought by [the plaintiff] and
ordered by the district court will restore the unlawfully filled
wetlands and deter future violations”); Texans United for a Safe
Econ. Educ. Fund v. Crown Cent. Petroleum Corp., 207 F.3d 789,
792–94 (5th Cir. 2000) (applying the same prospective standing
analysis to plaintiff’s claims for injunctive relief and civil
penalties by relying on Laidlaw for the proposition that “citizen
suitors have standing to seek civil ‘penalties for violations that
are ongoing at the time of the complaint and that could continue
into the future undeterred’” (quoting Laidlaw, 528 U.S. at 188));
Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204
F.3d 149, 160–63 (4th Cir. 2000) (en banc) (concluding that CWA
citizen-suit plaintiffs had standing based on the “increased risk
to its member’s downstream uses” given that “threats or
increased risk . . . constitutes cognizable harm” and plaintiffs
sought relief in the form of an injunction and civil penalties “for
continuing and threatened future violations”); Ecological Rights
Found. v. Pac. Lumber Co., 230 F.3d 1141, 1151–52 (9th Cir.
2000) (endorsing the view in Gaston Copper that “to require
actual evidence of environmental harm, rather than an
increased risk based on a violation of the statute,
misunderstands the nature of environmental harm, and would
undermine enforcement of the Clean Water Act” (citing Gaston
Copper, 204 F.3d at 155–61)).
19a
valuable insight into whether they face a “real and
immediate threat of repeated injury.”63 Additionally,
as discussed below, courts must consider a
defendant’s past violations in assessing an
appropriate civil penalty. However, the fact that past
violations play a role in calculating the amount of civil
penalties or determining the imminence of future
injuries does not undermine the forward-looking
nature of civil penalties for purposes of standing.
Therefore, consistent with controlling Supreme Court
precedent, our own post-Laidlaw precedent, our sister
circuits’ precedent, and the views of the EPA,64 we
conclude that civil penalties are a form of prospective
relief and that the same standing analysis applies
regardless of whether a citizen suit requests
injunctive relief or the assessment of civil penalties.
* * *
Essentially ignoring the above Supreme Court
caselaw, Exxon makes several erroneous arguments
in favor of a retrospective approach to standing.65 As
63 Lyons, 461 U.S. at 102 (internal quotation marks and
citation omitted).
64 The Government submitted an amicus curiae brief in
support of Plaintiffs, and we granted the Government’s motion
to participate in oral argument so it could present the views of
the EPA.
65 Exxon
concedes that, for purposes of analyzing
redressability, civil penalties have “a forward-looking deterrent
consequence[],” but that the “traceability analysis for penalties
is retrospective.” However, as pointed out by the Government,
both the traceability and redressability analyses refer to the
same injury-in-fact. See TransUnion, 594 U.S. at 423 (noting
that a plaintiff must “demonstrate a concrete and particularized
injury caused by the defendant and redressable by the court”).
This presents a problem for Exxon’s theory because an injury
20a
a legal matter, Exxon asserts that because the CAA
states that a “penalty may be assessed for each day of
violation,”66 the standing analysis is necessarily
retrospective and analogous to a damages suit. There
are two main problems with Exxon’s retrospective
approach to standing. First, Exxon’s contention
contravenes “[p]erhaps the most fundamental aspect
of the standing doctrine” which is that standing is
separate from the merits of the case.67 This is because
the amount of penalties assessed against a defendant
pertains to the merits of the case rather than the
question of standing.
As the Supreme Court in Steel Co. pointed out,
standing is a threshold issue that is wholly separate
from the merits inquiry given that “the Article III
requirement of remediable injury in fact . . . has
“cannot both have occurred in the past and be preventable in the
future.” In other words, if a forward-looking remedy redresses a
citizen-suit plaintiff’s injuries then those injuries must be
ongoing or future harms. Thus, it cannot be that the analysis for
redressability asks whether civil penalties will deter future
violations thereby redressing a plaintiff’s ongoing or imminent
injury, whereas the analysis for traceability asks whether a
plaintiff’s prior injury is traceable to a defendant’s past violation.
The Court in TransUnion made this clear, noting that in suits
seeking retrospective relief “the mere risk of future harm,
standing alone, cannot qualify as a concrete harm.” Id. at 436.
Accordingly, we reject Exxon’s assertion that for purposes of
traceability our standing analysis is retrospective, but for
purposes of redressability it is prospective.
66 42 U.S.C. § 7413(e)(2).
67 O’Hair v. White, 675 F.2d 680, 685–86 (5th Cir. 1982);
see also Ariz. State Legislature v. Ariz. Indep. Redistricting
Comm’n, 576 U.S. 787, 800 (2015) (cautioning courts against
“confus[ing] weakness on the merits with absence of Article III
standing” (internal quotation marks and citation omitted)).
21a
nothing to do with the text of the statute relied
upon.”68 It is only if standing is established that a
court proceeds to the merits, which in environmental
cases seeking civil penalties is the calculation of an
appropriate penalty amount. The district court’s
consideration of a defendant’s past violations for
purposes of calculating the appropriate amount of
penalties has no impact on the preliminary question
of standing. We thus reject Exxon’s attempt to infuse
our standing analysis with considerations that
pertain to the merits of this case.
The second problem with Exxon’s retrospective
argument is that even assuming arguendo that the
CAA’s penalty assessment provisions are relevant to
standing, these provisions are entirely consistent
with the view that civil penalties are a prospective
form of relief for purposes of standing. The basis for
Exxon’s argument that the standing analysis in CAA
citizen suits is retrospective is its assertion that
“penalties are assessed for past violations” and that
Plaintiffs here “seek” a penalty for each day a
violation occurred. But in making this argument,
Exxon mischaracterizes the role that past violations
play in the overall penalty calculation analysis.
Under the CAA, courts cannot simply award
penalties in isolation for each day a violation
occurred. Indeed, as we have previously recognized,
a “district court is not bound to impose the maximum
penalty afforded under the statute” (i.e., awarding the
maximum penalty for each day of violation), and to
the contrary, it “is required to consider a myriad of
factors, some of which are mitigating in nature, when
68 Steel Co., 523 U.S. at 93, 97 n.2.
22a
determining the appropriate civil penalty.”69 In
accordance with the text of the CAA and our
precedent, the district court in this case did not assess
a penalty for each day of violation. Instead, it landed
on a $19.95 million penalty after analyzing and
balancing each of the statutory factors. Additionally,
because the $19.95 million penalty did not come close
to reaching the per day of violation cap ($573.51
million), the court did not expressly consider the
number of days of violations and did not assess a
penalty for each day a violation occurred.70
Exxon next contends that the CAA’s seven penalty
factors, which focus on past violations, further
support its argument that standing must be
evaluated retrospectively. But Exxon’s argument
relies on the flawed premise that consideration of a
defendant’s past unlawful conduct alters the forwardlooking nature of civil penalties. As a general matter,
courts often consider past behavior in suits for
injunctive relief given that “past wrongs are evidence
bearing on whether there is a real and immediate
threat of repeated injury.”71
69 Env’t Conservation Org. v. City of Dallas, 529 F.3d 519,
530–51 (5th Cir. 2008).
70 In calculating civil penalties, the district court here
applied a “bottom-up approach” in which it started with the
economic benefit of Exxon’s noncompliance and adjusted upward
based on the statutory criteria. 2017 D. Ct. Op., 2017 WL
2331679, at *30– 31.
71 O’Shea v. Littleton, 414 U.S. 488, 496 (1974); see
Crawford v. Hinds Cnty. Bd. of Supervisors, 1 F.4th 371, 376 (5th
Cir. 2021) (holding that the plaintiff had standing to seek
injunctive relief because he “has a substantial risk of being
called for jury duty again” given that he “was called twice
between 2012 and 2017” and those past incidents are “evidence
23a
In the context of civil penalties, it makes sense
that a defendant’s history of noncompliance would be
relevant to setting a penalty amount that is sufficient
to deter its ongoing or future violations of a specific
emissions limit. The CAA’s seven enumerated factors
reflect this focus on deterrence. For example, the
economic benefit a defendant receives from
noncompliance—arguably the most important
factor72—“is of key importance if the penalties are to
successfully . . . deter violations.”73 Similarly, factors
such as the number, duration, and seriousness of the
defendant’s past violations are relevant given that
more long-term violations of a serious nature may
require a higher financial incentive in order to compel
future compliance. We therefore find nothing in the
text of the CAA’s penalty factors undermines the
prospective nature of civil penalties for purposes of
standing.
bearing on whether there is a real and immediate threat of
repeated injury” (internal quotations marks and citation
omitted)).
72 See ETCL I, 824 F.3d at 527 (emphasizing that “the
amount of economic benefit is central to the ability of a district
court to assess the statutory factors and for an appellate court to
review that assessment” (internal quotation marks and citation
omitted)); Erin Belka & Sarah Kern, Assessing Civil Penalties in
Clean Water Act Citizen Suit Cases, 10 HASTINGS W.-Nw. J.
ENV’T L. & POL’Y 71, 76 (2003) (“The majority of courts use the
bottom-up approach to calculate penalties: the economic benefit
defendant gained by violating the CWA is the starting point, and
the most heavily weighed factor, in the court’s penalty
calculation. Even in cases where the court chooses the top-down
approach, or a hybrid approach, economic benefit is a substantial
factor in a court’s penalties analysis.”).
73 Atl. States Legal Found., Inc. v. Tyson Foods, Inc., 897
F.2d 1128, 1141 (11th Cir. 1990).
24a
Exxon seeks to avoid this conclusion by arguing
that the statutory factors are not focused on
deterrence but instead are “particularly associated
with the goal of retribution,” which is “inherently
backward-looking.” Exxon cites to Tull v. United
States for the proposition that civil penalties serve
multiple purposes besides deterrence, given that the
“legislative history of the [Clean Water] Act reveals
that Congress wanted the district court to consider
the need for retribution and deterrence, in addition to
restitution, when it imposed civil penalties.”74
However, as pointed out by the dissent in Laidlaw,
Tull was a case involving civil “penalties pursued by
the government, not by citizens.”75 And the legislative
history cited by the Court in Tull pertains to the
EPA’s penalty authority and its policies in suits
seeking civil penalties under the CWA and CAA.76
This is a significant difference in terms of evaluating
the various purposes of civil penalties because unlike
citizen suits, the EPA may seek penalties for wholly
past violations.77 In sum, nothing in the text of the
CAA’s penalty provisions undermines a forward74 Tull v. United States, 481 U.S. 412, 422–23 (1987)
(citation omitted). The Court in Laidlaw cited this passage from
Tull for the proposition that “Congress has found that civil
penalties in Clean Water Act cases do more than promote
immediate compliance by limiting the defendant’s economic
incentive to delay its attainment of permit limits; they also deter
future violations.” Laidlaw, 528 U.S. at 185.
75 Laidlaw, 528 U.S. at 207 (Scalia, J., dissenting).
76 Tull, 481 U.S. at 422–23 (citing 123 Cong. Rec. 39191
(1977) (“remarks of Sen. Muskie citing Environmental
Protection Agency (EPA) memorandum outlining enforcement
policy”)).
77 Gwaltney, 484 U.S. at 58.
25a
looking approach to standing in a citizen suit and
instead the statutory text is entirely consistent with
Laidlaw’s view that penalties are meant to deter a
defendant from continuing to violate its permits in the
future.
In the alternative, Exxon argues that even if suits
seeking civil penalties are analyzed under a forwardlooking standing analysis, as a factual matter
Plaintiffs have not established standing here because:
(1) the district court previously denied their claim for
injunctive relief, and (2) Plaintiffs waived their
forward-looking theory of standing. We find both of
Exxon’s arguments unavailing.
The district court’s denial of Plaintiffs’ claim for
injunctive relief on the merits (after finding Plaintiffs
had standing to seek such relief) is immaterial to
whether Plaintiffs have standing to seek another type
of prospective relief. In fact, Exxon’s argument to the
contrary was rejected by the Court in Laidlaw which
held that the “[d]enial of injunctive relief does not
necessarily mean that the district court has concluded
there is no prospect of future violations for civil
penalties to deter.”78
Finally, the extensive trial record in this case
refutes Exxon’s assertion that the forward-looking
nature of civil penalties “is not the theory on which
this case was pleaded and tried.” Starting with the
case pled: Plaintiffs’ complaint is focused on their
ongoing injuries and their risk of increased harm in
the future. Specifically, Plaintiffs pled that they
“have members who are worried that in the future
they will breathe illegal emissions from the Baytown
78 Laidlaw, 528 U.S. at 192–93.
26a
Complex, and that future illegal emissions will result
in the formation of dangerous ozone, create serious
health problems, and interfere with their ability to
carry on ordinary activities.” They also alleged that
“[a]bsent an appropriate order from this Court,
Defendants will continue to violate the Act as
described in Counts I through VII.” Furthermore,
Plaintiffs did not seek damages for themselves. And
even if they had, as noted above, there is no law
allowing such retrospective relief under the citizensuit statute.79
As to the case tried, Plaintiffs’ counsel’s closing
argument made clear that each form of relief
requested was targeted at reducing Exxon’s violations
in the future: “We are asking the Court to declare
Exxon to be violating the Clean Air Act. The plaintiffs
are asking for the Court to issue an injunction to halt
the violations of the Clean Air Act. The plaintiffs are
asking the Court to appoint a special master to be in
the complex to assure compliance, and the plaintiffs
are asking the Court to impose a large penalty that
will deter Exxon.” And most tellingly, Plaintiffs’
proposed findings of fact and conclusions of law
argued that “[r]equiring a plaintiff to prove specific
injury from each alleged past violation would serve no
legitimate purpose in the standing inquiry, because
the focus of the citizen enforcement suit (unlike that
of a tort suit for compensation) is ‘primarily forwardlooking.’” Plaintiffs went on to clarify that they were
“ask[ing] the Court to impose penalties and injunctive
relief to reduce the likelihood that Exxon will violate
the Clean Air Act at these facilities in the future.”
79 See Middlesex, 453 U.S. at 6–7, 13–15 & n.25.
27a
Finally, Plaintiffs maintained this forwardlooking approach even after the district court denied
their claim for injunctive80 and declaratory relief. In
Plaintiffs’ opening brief in ETCL II, they lay out their
interest in seeking to deter Exxon from continuing to
violate its emissions limitations going forward. In the
“injury-in-fact” analysis of their brief, Plaintiffs note
that their members have “concern[s] about future
adverse effects from pollution.” In the “traceability”
section of their brief, Plaintiffs focus on their
members’ testimony “that their injuries are ongoing,”
that they have fears about their future increased risk
of cancer, and that such fears are “rationally related”
to Exxon’s emission of particular chemicals. Finally,
in addressing “redressability,” Plaintiffs argue that
civil penalties “incentivize[] Exxon to be proactive
about compliance in the future.” We therefore find
that Plaintiffs have not waived their forward-looking
standing argument and have sought prospective relief
for their continuing and threatened injuries at each
stage of this litigation.
Because citizen-suit plaintiffs are limited to
prospective relief, the same forward-looking standing
analysis applies regardless of whether plaintiffs
are seeking injunctive relief or civil penalties. This
means that Plaintiffs here were required to prove the
following to establish standing: an ongoing harm or
the “real and immediate threat” of future harm,
traceable to Exxon’s unlawful emissions ongoing at
80 Notably, the district court denied Plaintiffs’ request for
injunctive relief in part because it believed that the threat of
penalties for future noncompliance provided Exxon with
sufficient incentive to comply with its permits absent an
injunction. 2017 D. Ct. Op., 2017 WL 2331679, at *32.
28a
the time of suit, and redressable by the deterrent
effect of civil penalties.81
2. Definition of a Claim in a CAA Citizen
Suit.
Another foundational aspect of standing is that we
consider it “on a claim-by-claim basis.”82 The parties
dispute what constitutes a “claim” for purposes of
standing in a citizen suit brought under the CAA.
Exxon contends that because the CAA permits
courts to assess civil penalties for each day of
violation, a “claim” for purposes of standing “refers to
each day for which penalties are sought.” Under their
definition, Exxon contends that to ensure standing is
not dispensed in gross, Plaintiffs must prove “an
injury-in-fact on each day of violation for which they
seek a penalty” and “prove a causal connection
between each day of violation for which they seek a
penalty and an injury-in-fact.” Plaintiffs reject
Exxon’s argument on the grounds that individual past
violations are not separate claims under the CAA.
Instead, they contend a claim is properly defined as
consisting of repeated or ongoing violations of “an
emission standard or limitation.”83
81 Lyons, 461 U.S. at 105–06; Laidlaw, 528 U.S. at 185–86
(considering whether “a plaintiff who is injured or faced the
threat of future injury due to illegal conduct ongoing at the time
of suit” and requests “a sanction that effectively abates the
conduct and prevents its recurrence” satisfied the three prongs
of standing).
82 Friends of St. Frances Xavier Cabrini Church v. FEMA,
658 F.3d 460, 466 (5th Cir. 2011) (per curiam) (citation omitted).
83 42 U.S.C. § 7604(a)(1).
29a
In ETCL II, a panel of this Court ultimately
adopted
Exxon’s
violation-by-violation
based
84
approach to standing. Despite appearing to accept
Plaintiffs’ definition of a claim, the panel determined
that standing must be analyzed for each violation
because “Clean Air Act penalties are tied to violations,
not the broader claims . . . (that is, [a] group of
violations of a particular emission standard).”85 In
arriving at this conclusion, the panel members in the
majority acknowledged that it gave them “some
pause” that “no court appears to have found standing
for some Clean Air Act violations but not others.”86
The panel majority also acknowledged that
“[n]umerous cases have instead recognized standing
in environmental citizen suits without separate
analyses for each violation.”87 However, it found these
cases distinguishable on the grounds that they did not
“involve the number and variety of violations that this
case does (24 different pollutants).”88
After further consideration and briefing, we
conclude that the panel in ETCL II erred in requiring
Plaintiffs to establish standing for each violation. The
Supreme Court instructs that “[a]lthough standing in
no way depends on the merits of the plaintiff’s
contention that particular conduct is illegal, it often
turns on the nature and source of the claim
84 The panel was unanimous on this point. See ETCL II,
968 F.3d at 375 (Oldham, J., concurring in part, dissenting in
part, and concurring in the judgment).
85 Id. at 365–66 (majority opinion).
86 Id. at 366.
87 Id.
88 Id.
30a
asserted.”89 In this case, the statute Plaintiffs rely on,
42 U.S.C. § 7604, authorizes “any person” to
“commence a civil action on his own behalf” “against
any person . . . who is alleged to have violated (if there
is evidence that the alleged violation has been
repeated) or to be in violation of . . . an emission
standard or limitation” set forth in a permit issued
under the CAA. It is undisputed that a plaintiff may
not file suit until a violation of an emission standard
or limitation has been repeated in the past or occurred
at least once before suit was filed and once after.90
Therefore, under the language of the statute, a claim
consists of at least two violations of “an emission
standard or limitation.”
We delved into what is meant by an “emission
standard” under § 7604 in the first opinion issued by
this Court.91 We held, consistent with the approach
taken in CWA cases, that the focus should be on a
particular pollutant and whether that pollutant has
been discharged at higher rates than authorized by a
permit.92 It therefore follows that a “claim” under the
89 Warth v. Seldin, 422 U.S. 490, 500 (1975) (citation
omitted).
90 ETCL I, 824 F.3d at 518–20.
91 Id. at 519–20; see also Gwaltney, 890 F.2d at 698 (“The
entire structure of the Clean Water Act and regulations involves
identifying specific pollutants and setting a permit limit for each
pollutant of concern.”).
92 On remand, the district court analyzed the different
counts of the Plaintiffs’ complaint in light of this Court’s
interpretation of an “emission standard” under the citizen-suit
statute. The district court determined that under (1) Count I,
relating to “upset emissions,” the refinery emitted twenty-four
different pollutants in continuing or repeated violations;
(2) Count II, relating to violations of the Maximum Allowable
31a
CAA arises when a particular pollutant has been
emitted repeatedly in violation of a permit limit.
Accordingly, in order to avoid dispensing standing in
gross, Plaintiffs must establish that their members
suffer from ongoing or imminently threatened
injuries as a result of Exxon’s violations of each of its
emission standards or limitations.
Exxon does not dispute that under the CAA a
single violation cannot constitute a claim, but instead
maintains that a violation-by-violation approach to
standing is necessary to ensure that citizens do not
“secure civil penalties for violations that did not cause
them injuries-in-fact.” This approach, which is a
repackaging of Exxon’s prior argument about the
retrospective
nature
of
civil
penalties,
misunderstands the purpose of citizen suits and is at
odds with Supreme Court precedent.
Emission Rate Table (“MAERT”) limits, (a) the refinery emitted
twenty-four different pollutants in continuing or repeated
violations; (b) the olefins plant emitted fourteen different
pollutants in continuing or repeated violations; and (c) the
chemical plant emitted different pollutants in continuing or
repeated violations; (3) Count III, relating to emissions of highly
reactive volatile organic compounds (“HRVOC”), the total
equaled eighteen days of violations committed; (4) Count IV,
relating to the prohibitions of visible emission from flares except
for periods not to exceed five minutes in two consecutive hours,
the total equaled forty-four days of violations; and (5) Count V,
relating to the rule that requires flares to operate with a pilot
flame present at all times, the total equaled thirty-two days of
violations. 2017 D. Ct. Op., 2017 WL 2331679, at *13–21. All of
this was presented to the district court: Plaintiffs’ Exhibits 9–15
contain a chart for every count that shows the number of days of
violations pre- and post-complaint broken out by each different
pollutant.
32a
Citizen-suit plaintiffs do not “secure” civil
penalties as compensation for any injuries they may
have suffered from past violations. The only benefit
they receive from civil penalties is cleaner air in the
future. This understanding of citizen suits is
consistent with the above cited Supreme Court
precedent that has characterized civil penalties,
payable to the U.S. Treasury, as a forward-looking
remedy imposed to deter a defendant from
committing future violations. Moreover, it is the
approach applied in Laidlaw where the Court did not
conduct a separate standing analysis for each of the
defendant’s 489 CWA violations. Instead, the Court
concluded the district court “reasonably” assessed a
$405,800 penalty not because of the number of past
days of violations plaintiffs suffered, but because such
a penalty carried a “deterrent effect that made it
likely, as opposed to merely speculative, that the
penalties would redress [plaintiffs’] injuries by
abating current violations and preventing future
ones.”93
Exxon recognizes that neither Laidlaw nor other
circuit court CAA and CWA cases have applied a
violation-by-violation approach to standing.94
93 Laidlaw, 528 U.S. at 187.
94 See, e.g., Inland Empire Waterkeeper v.. Corona Clay Co.,
17 F.4th 825, 831–32 (9th Cir. 2021) (“This [CWA citizen suit]
case raises two types of claims: claims of discharge violations,
which allege [the defendant] harms [plaintiff]’s members by
releasing storm water with pollutant levels that violate its
permit; and claims of ‘procedural’ violations, involving
[defendant]’s failure to adhere to other permit requirements,
the obligation to monitor and report . . . . We therefore
analyze separately whether [plaintiff] established Article III
33a
Instead, relying on the panel’s decision in ETCL II,
Exxon contends its novel approach is necessary here
because Laidlaw and other circuit court cases are
distinguishable because they did “not involve the
number and variety of violations that this case does
(24 different pollutants).”95 In response, Plaintiffs
contend that the number and seriousness of Exxon’s
violations have “no bearing on whether Plaintiffs
have an interest in Exxon complying with each of its
permit limits in the future.”
We see no reason why the unprecedented number
and variety of violations at issue here require the
application of a novel approach to standing focused on
each past violation. Further, the number of violations
and pollutants does nothing to change the fact that
civil penalties are a prospective form of relief that
requires a forward-looking approach to standing. And
to adopt Exxon’s violation-by-violation approach
would amount to making standing impossible to
establish in cases involving sprawling industrial
complexes that regularly emit an array of dangerous
pollutants as compared to cases involving small
facilities that commit few violations. Such an
approach is inconsistent with Article III and would
thwart the purpose of the citizen-suit provision.96
organizational standing to pursue the discharge and procedural
allegations.”).
95 ETCL II, 968 F.3d at 366.
96 See Del. Valley Citizens’ Council for Clean Air, 478 U.S.
at 560 (explaining that Congress enacted the CAA’s citizen-suit
provision to provide citizens with “very broad opportunities to
participate in the effort to prevent and abate air pollution”
(citation omitted)); see also NRDC, Inc. v. Train, 510 F.2d 692,
699–700 (D.C. Cir. 1974) (“The legislative history of the Clean
Air Act Amendments reveals that the citizen suits provisions
34a
Moreover, it would run afoul of TransUnion’s
instruction that courts “afford due respect to
Congress’s decision to impose a statutory prohibition
or obligation on a defendant, and to grant a plaintiff
a cause of action to sue over the defendant’s violation
of that statutory prohibition or obligation.”97
Additionally, Exxon’s concern about the large
number of violations with varying levels of
seriousness is readily accounted for without upending
well-established
standing
jurisprudence.
For
example, the wide number of pollutants Exxon
emitted is accounted for by the fact that Plaintiffs
must establish standing for each specific pollutant
limit they seek to enforce. Crucially, under 42 U.S.C.
§ 7413(e)(1), the district court is already required to
consider both the seriousness and duration of the
defendant’s violations as part of its civil penalty
analysis. Therefore “[i]f violations that are truly
trivial become the targets of citizen suits, courts are
fully capable of adjusting the penalties imposed for
them to trivial levels.”98
Accordingly, we analyze standing on a claim-byclaim basis, which under the CAA is not each
violation, but each emission standard or limitation
Plaintiffs seek to enforce.
reflected a deliberate choice by Congress to widen citizen access
to the courts, as a supplemental and effective assurance that the
Act would be implemented and enforced.” (citations omitted)).
97 TransUnion, 594 U.S. at 425 (citation omitted).
98 Robert V. Percival & Joanna B. Goger, Escaping the
Common Law’s Shadow: Standing in the Light of Laidlaw, 12
DUKE ENV’T L. & POL’Y F. 119, 147 (2001).
35a
3. Injury-in-Fact.
Having established the fundamentals of what
constitutes a claim and how civil penalties are
assessed for purposes of standing, we proceed to
examine whether Plaintiffs established the three
elements of standing here.
The Supreme Court has described the injury-infact prong as the “‘[f]irst and foremost’ of standing’s
three elements.”99 In suits seeking prospective relief,
“[a]n allegation of future injury may suffice if the
threatened injury is certainly impending, or there is
a substantial risk that the harm will occur.”100 Past
injuries, “though insufficient to confer standing, are
still ‘evidence bearing on whether there is real and
immediate threat of repeated injury.’”101 Past injuries
accompanied by “continuing, present adverse effects”
also can satisfy the injury-in-fact requirement.102
Here, four of Plaintiffs’ members—Diane Aguirre
Dominguez, Marilyn Kingman, Richard Shae Cottar,
and Sharon Sprayberry—testified at trial about the
impact that Exxon’s unlawful emissions have on their
lives. At the time of suit, one member lived onequarter mile from the Complex in a townhouse “right
across the street from both the chemical and olefins
plant,” and another member lived a half-mile away
99 Spokeo, Inc. v. Robins, 578 U.S. 330, 338–39 (2016)
(quoting Steel Co., 523 U.S. at 103).
100
Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158
(2014) (internal quotation marks and citation omitted).
101
Crawford, 1 F.4th at 376 (quoting Lyons, 461 U.S. at
102).
102 Lyons, 461 U.S. at 102 (internal quotation marks and
citation omitted).
36a
from the Complex’s fence line.103 The other two
members regularly visited the Baytown area and
recreated near the Complex.104
In terms of their injuries, Plaintiffs’ members
testified that they suffered from allergy and
respiratory problems while living in or visiting
Baytown and that the severity of their symptoms
fluctuated based on their proximity to the
Complex.105 These members also testified that they
103
Mr. Cottar has lived in Baytown for thirty-eight years
and has remained a resident throughout the claims period and
trial. From April 2010 through September 2012, he lived onequarter mile from the Complex and in September of 2012 he
moved two miles away from the Complex after an especially
concerning emissions event in May of 2012. From 2004 through
2012, Ms. Sprayberry lived a half-mile from the edge of the
Exxon Complex. Although Ms. Sprayberry moved to McGregor,
Texas, in 2012 in order “to get to clean air,” she testified that she
would have retired in Baytown “if Exxon emitted fewer
pollutants into the environment.”
104
Ms. Dominguez no longer lives in Baytown, but returns
to the area to visit her parents who live one and a half miles
away from the Complex and testified at trial that she plans to
visit again in December of 2014. Ms. Kingman lives in the town
next door to Baytown and drives to Baytown two or three times
a week to do her shopping, watch basketball games, and attend
church, all of which are at locations within a few miles of the
Complex.
105
Ms. Dominguez testified that she grew up in a house a
mile and a half from the Complex and throughout her childhood
suffered from a runny nose, watery eyes, and a constricted
feeling in her chest. However, she stated that after moving away
from Baytown, her symptoms improved and she no longer has to
take allergy medication, but when she returns to Baytown to
visit her parents her symptoms return. Mr. Cottar testified that
he experienced “far more asthma issues on a consistent basis”
after moving into his townhouse across the street from the
Complex compared to his prior residence in Baytown.
37a
regularly smelled unpleasant chemical odors,106 and
observed flares, smoke, and haze coming from the
Complex.107 This caused all four members to fear for
106
Ms. Sprayberry testified that sometimes when she was
outside in her yard or walking in her neighborhood she would
notice “a chemical, sort of sulfur kind of smell.” Such a smell was
common when the “the wind was blowing from Exxon toward”
her. Ms. Dominguez similarly testified that she associates a
“sulfur kind of smell and a gasoline smell” with the Complex.
Finally, Mr. Cottar testified that in 2010 and 2011 he
experienced a “very sweet” odor emanating from the Complex
that was painful to inhale and would cause him an immediate
headache. Mr. Cottar knew these odors were coming from the
Complex for two reasons. First, he only smelled the odors when
the wind was blowing from West to East and the Complex is
located to the West of his house. Second, he would regularly
check Exxon’s State of Texas Environmental Electronic
Reporting System (“STEER”) reports, which are available to the
public, and list the pollutants being released by the Complex and
“correspond” his experiences with the reports.
107
Ms. Kingman described seeing a gray or brown haze
over the Complex, particularly on days without wind where
“anything that’s been emitted just seems to hang.” Mr. Cottar
testified that on average he would see flaring events at the
Complex once a week and that such events were “audibly
disruptive,” continued for more than an hour, and/or would
result in black smoke coming from the flare. He also described
“a number of times” in which he experienced “profound” flaring
events which shook his bedroom windows that faced the
Complex. Ms. Sprayberry testified that from her neighborhood
she could see flares all along the North side of the refinery. She
noted that at times flaring at the Complex was associated with
a “very loud roaring” that “sounded like a freight train at the
front door” and that the flares were so bright that they “lit up”
the sky and prevented her from falling asleep.
38a
their health108 and safety.109 Finally, two members
testified that seeing flares, smoke, and haze, smelling
chemical odors, and experiencing respiratory
problems impacted their current and anticipated
enjoyment of outdoor activities.110 Supported by the
above testimony, the district court applied wellestablished precedent to hold that Plaintiffs’
members suffered cognizable ongoing harms or
108
Mr. Cottar testified that because his family suffers
from asthma he was “really concerned and still [is]” about their
exposure to Exxon’s emissions. Ms. Dominguez testified that she
knows the Complex is “emitting something into the air,”
specifically that it “emit[s] cancer-causing chemicals.” Similarly,
Ms. Sprayberry testified that when she smelled noxious odors
coming from the Complex she knew she was “breathing in
something that was toxic or harmful.” Finally, Ms. Kingman
expressed concerned about health issues in general and
specifically about allergies and cancer due to exposure to Exxon’s
emissions.
109
As it pertains to flares, several members testified that
seeing flares caused them to fear an explosion at the Complex.
Mr. Cottar explained that when “flares go on for prolonged
periods of time” the community is left with unanswered
questions and “[n]obody knows if we should run for our lives or
shelter in place or what.” Ms. Kingman echoed this concern,
testifying that when she sees “big flares” at the Complex she
finds it scary because she is “afraid that the unit could explode.”
110
For example, Ms. Dominguez testified that she no
longer runs outside when she visits Baytown because she feels
an “abrasive feeling” in her throat and lungs. Mr. Cottar testified
that he cuts his family visits to the Baytown Nature Complex
short when there are emissions events ongoing at the Complex.
In fact, at trial, Mr. Cottar showed the court a picture he took a
few weeks before trial at the Baytown Nature Center that
showed an ongoing flaring event at the Complex.
39a
showed a substantial risk that they will face similar
injuries in the future.111
a. Laidlaw is Directly Applicable Here.
Exxon does not dispute that the above injuries are
cognizable under Article III. Instead, Exxon argues
that “[w]hen a civil penalty is sought for a ‘day of
violation,’ a concrete injury is established only if there
is evidence that the injury was actually experienced
on that day—i.e., that an alleged violation that day
‘affect[ed] the plaintiff in a personal and individual
way.’” Under this standard, Exxon concludes that
Plaintiffs only offered evidence that their members
suffered “concrete” injuries during five emissions
events.
This approach to injury-in-fact suffers from the
same defect as several of Exxon’s other standing
arguments: it is inconsistent with the most on-point
Supreme Court case. The Supreme Court in Laidlaw
did not require plaintiffs’ members to show that they
111
Laidlaw, 528 U.S. at 183–84; see also Sierra Club v.
Tenn. Valley Auth., 430 F.3d 1337, 1345 (11th Cir. 2005) (finding
the injury-in-fact prong satisfied based on a member’s affidavit
stating “that he regularly saw plumes of smoke from the
[defendant’s] plant” and found it “frightening” to breathe
polluted air); O’Hair, 675 F.2d at 687 (“[T]he Supreme Court
has established that a person may have the requisite personal
stake in the controversy as a result of injury to aesthetic,
conservational, or recreational values.” (citations omitted));
Texans United, 207 F.3d at 792 (holding that “breathing and
smelling polluted air is sufficient to demonstrate injury-in-fact
and thus confer standing under the CAA” (citing NRDC v. EPA,
507 F.2d 905, 910 (9th Cir. 1974))); Benham, 885 F.3d at
1273 (acknowledging that “recreational impairments constitute
injury in fact for a plaintiff filing a citizen suit under the CWA”
(citation omitted)).
40a
were near the river or suffered some specific injury on
each day a past violation occurred. Rather, the Court
found that plaintiffs’ members’ current and future
curtailment of their recreational activities based on
their “reasonable concern” about the defendant’s
upstream emissions was sufficient to establish an
injury for all 489 violations.112
Exxon’s insistence that Plaintiffs must submit
proof that their members experienced an injury on
each day a past violation occurred cannot be squared
with Laidlaw’s holding that citizen-suit plaintiffs’
ongoing or future injuries are cognizable for purposes
of Article III standing.113 This is because under
Exxon’s erroneous approach to injury-in-fact, only
past injuries, not ongoing or future ones, are
cognizable. Take, for example, Plaintiffs’ members’
ongoing concerns about their future health and safety
due to their continuing exposure to Exxon’s unlawful
emission of harmful pollutants. Or consider members’
current and future decisions to refrain from outdoor
activities, or to move away from the Complex, due to
Exxon’s violations. Such ongoing and future
112
113
Laidlaw, 528 U.S. at 183–84.
Id.; see also Cent. Delta Water Agency v. United States,
306 F.3d 938, 949 (9th Cir. 2002) (characterizing the Court’s
finding of standing in Laidlaw as based on “the threatened
future damage to plaintiffs’ environmental interests”); Patrick
Gallagher, Environmental Law, Clapper v. Amnesty
International, USA, and the Vagaries of Injury-in-Fact:
“Certainly Impending” Harm, “Reasonable Concern,” and
“Geographic Nexus,” 32 UCLA J. ENV’T L. & PoL’Y 1, 23 (2014)
(“Following Laidlaw, ‘reasonable concern’ may be linked to
either a present or imminent harm by prompting the plaintiff to
curtail recreational or aesthetic enjoyment of a natural resource,
now or in the future.”).
41a
injuries114 are based on Exxon’s extensive history of
past violations and the likelihood that it will commit
similar violations in the future. These injuries cannot
be tied to a specific day on which a past violation
occurred and thus under Exxon’s approach would not
be cognizable injuries.115
We have no doubt that the above ongoing and
future injuries are sufficiently concrete for purposes
of standing. Indeed, the Court in Laidlaw found
similar
injuries
satisfied
the
injury-in-fact
requirement. And following Laidlaw, both this Court
and our sister circuits have found similar ongoing and
future injuries to be cognizable.116 Accordingly, we
114
Even in the context of some past injuries, Plaintiffs
would be unable to show their members suffered an injury on the
exact day Exxon committed the violation. This is because Exxon
emits pollutants, such as sulfur dioxide and ozone, which can
cause respiratory problems. However, according to Plaintiffs’
expert, these pollutants have a “lingering effect,” and therefore
Plaintiffs’ members may not have “obvious symptoms”
immediately after exposure.
115
See Lyons, 461 U.S. 102–03 (holding that evidence of
prior injuries can be probative of whether a future injury is likely
to reoccur in the future).
116
See, e.g., Inland Empire Waterkeeper, 17 F.4th at 832
(“Laidlaw recognized that an increased risk of harm can itself be
[an] injury in fact sufficient for standing.” (internal quotation
marks and citation omitted)); Sierra Club, Lone Star Chapter v.
Cedar Point Oil Co., 73 F.3d 546, 556 (5th Cir. 1996) (“That this
injury is couched in terms of future impairment rather than past
impairment is of no moment.”); Gaston Copper, 204 F.3d at 160
(“Threats or increased risk thus constitutes cognizable harm”
and a plaintiff “need not wait until his lake becomes barren and
sterile or assumes an unpleasant color and smell before he can
invoke the protections of the Clean Water Act.”).
42a
reject Exxon’s retrospective approach to injury-infact.
b. TransUnion is Inapposite.
Exxon’s focus on linking members’ past injuries to
past violations can be attributed to its reliance on
TransUnion LLC v. Ramirez, a class action tort case
seeking damages for past injuries.117 In TransUnion,
a class of consumers sued TransUnion, a credit
reporting agency, under the Fair Credit Reporting
Act.118 The plaintiffs alleged that TransUnion had
failed to use reasonable procedures to ensure the
accuracy of their credit files.119 Specifically, the class
members asserted that TransUnion incorrectly
included an alert in their files that their names
matched those of individuals on the Treasury
Department’s watch list for terrorists and other
serious criminals.120
The Supreme Court held that only the class
members whose credit reports TransUnion had
disseminated to third parties had standing because
their reputations were harmed as a result of the
disclosures.121 The other class members whose
reports had not been disseminated lacked standing
because they could not demonstrate that
TransUnion’s inclusion of misleading information in
their files constituted a concrete harm.122 In holding
117
594 U.S. at 417–21.
118
Id. at 417.
119
Id.
120
Id. at 419–21.
121
Id. at 432–33.
122
Id. at 432–39.
43a
that many of the class members lacked standing
because they failed to show they suffered an injuryin-fact, the Court reemphasized the principle that
“Article III standing requires a concrete injury even
in the context of a statutory violation.”123
Exxon uses TransUnion’s holding that the class
members whose credit reports were not disseminated
to third parties lacked standing to further its
argument that Plaintiffs here have not established
that each of their members suffered a “concrete”
injury on each day a violation occurred. We disagree
given that this case is distinguishable from
TransUnion.
Unlike in TransUnion, where each class member
sought retrospective damages as compensation for
their alleged past harms, Plaintiffs here seek a
prospective remedy in the form of civil penalties,
payable to the U.S. Treasury, to redress their
members’ ongoing and future injuries. This results in
two notable differences for purposes of standing.
First, the relevant injury in a case seeking
retrospective relief is different from the injury-in-fact
analysis for suits, like this one, seeking prospective
relief.124 And second, unlike class action suits, as long
as one of Plaintiffs’ members has standing, it is
irrelevant whether any other members meet Article
III’s standing requirement.125
123
Id. at 426 (quoting Spokeo, 578 U.S. at 341).
124
See id. at 436 (acknowledging that unlike in cases
seeking prospective relief, the “mere risk of future harm,
standing alone, cannot qualify as a concrete harm” in a damages
suit).
125
See Int’l Union, UAW v. Brock, 477 U.S. 274, 289–90
(1986) (recognizing the differences in “suits by associations on
44a
It is also worth noting the factual differences
between this case and TransUnion. Unlike the class
members in TransUnion who were unharmed aside
from a statutory violation, Plaintiffs’ members’
injuries—interference with recreation, breathing and
smelling polluted air, and allergy-like or respiratory
problems—are the type of “physical, monetary, or
cognizable intangible harm traditionally recognized
as providing a basis for a lawsuit in American
courts.”126 Moreover, at the time Plaintiffs filed suit,
their members suffered from the imminent threat of
a future injury which was ultimately realized when
Exxon continued to violate its permit limits after suit
was filed. This is a sharp contrast to the Court’s
finding in TransUnion that even if class members had
sought prospective relief, their asserted injury—the
potential that TransUnion could in the future
disseminate their credit reports to third parties—was
not sufficiently imminent to establish standing.127
TransUnion simply reaffirms several basic
principles of standing and does not stand for the
behalf of their members from class actions” for purposes of
standing); see also TransUnion, 594 U.S. at 431 (“Every class
member must have Article III standing in order to recover
individual damages.”); Hunt, 432 U.S. at 342– 43 (as long as “any
one of” an association’s members have standing that is
sufficient).
126
TransUnion, 594 U.S. at 427; see also id. at 425
(emphasizing that in determining “whether a harm is
sufficiently concrete to qualify as an injury in fact,” courts “must
afford due respect to Congress’s decision to impose a statutory
prohibition or obligation on a defendant, and to grant a plaintiff
a cause of action to sue over the defendant’s violation of that
statutory prohibition or obligation”).
127
Id. at 438–39.
45a
proposition that citizen-suit plaintiffs seeking civil
penalties must tie separate injuries to each alleged
violation. For the foregoing reasons, the district court
correctly held that Plaintiffs have satisfied the injuryin-fact requirement for standing as to all of Exxon’s
violations, not just those forty days correlated at trial.
4. Traceability.
The second prong of standing “asks whether the
[plaintiff’s] injury is fairly traceable to the challenged
action of the defendant, and not the result of the
independent action of some third party not before the
court.”128 In other words, traceability ensures that
the plaintiff has sued the right defendant.129 The
Supreme Court has generally found traceability
lacking in cases where “the independent act of a third
party was a necessary condition of the harm’s
occurrence, and it was uncertain whether the third
party would take the required step.”130 On the other
hand, the Court has been much more apt to find
traceability when the plaintiff’s injury was “not
dependent on speculation about the possible actions
of third parties not before the court.”131
128
Steel Co., 523 U.S. at 106 n.7 (cleaned up) (emphasis
added).
129
See WRIGHT & MILLER, 13A FED. PRAC. & PROC. JURIS.
§ 3531.5 (3d ed. 2023 update) (“Causation may provide one of the
useful means of addressing the question whether the plaintiff
has sued the proper defendant.”).
130
Texas v. United States, 809 F.3d 134, 160 (5th Cir.
2015), as revised (Nov. 25, 2015) (collecting cases).
131
Vill. of Arlington Heights v. Metro. Hous. Dev. Corp.,
429 U.S. 252, 264 (1977) (finding that plaintiff satisfied the
constitutional requirements of standing in part because the
plaintiff’s injury was “not dependent on speculation about the
46a
The present case raises no concerns about chains
of causation involving the actions of third parties. In
particular, there is no allegation that pollution from a
third party is the intervening cause of Plaintiffs’
members’ injuries.132 And it requires no attenuated
chain of causation or speculation about the actions of
third parties to conclude that one of the largest
petrochemical plants in the United States that has
undisputedly emitted millions of pounds of dangerous
pollutants unlawfully into the air contributed to the
physical, aesthetic, and recreational injuries of people
who lived next door. Plaintiffs’ case is therefore easily
distinguishable from cases in which the Supreme
Court has found a lack of traceability.
Although there is no third party interrupting the
chain of causation here, Plaintiffs still must establish
that their members’ injuries are “fairly traceable” to
possible actions of third parties not before the court” (citations
omitted)); see also Note, Causation in Environmental Law:
Lessons from Toxic Torts, 128 HARV. L. REV. 2256, 2265 (2015)
(“However, causation generally has been easier to establish
when the alleged injury is perceived to be a direct result of the
defendant’s actions, while cases that claim a harm based on a
defendant’s failure to engage with a third party are more likely
to fail on the causation prong.”).
132
See Gaston Copper, 204 F.3d at 162 (“Where a plaintiff
has pointed to a polluting source as the seed of his injury, and
the owner of the polluting source has supplied no alternative
culprit, the ‘fairly traceable’ requirement can be said to be fairly
met.”); Sierra Club v. Franklin Cnty. Power of Ill., LLC, 546 F.3d
918, 926–27 (7th Cir. 2008) (finding traceability because “the
defendants point to no other polluting source that could be the
cause of [plaintiff’s] injury”); Utah Physicians for a Healthy Env’t
v. Diesel Power Gear, LLC, 21 F.4th 1229, 1244–46 (10th Cir.
2021) (“In this case, there is no speculation that Defendants’
unlawful conduct would cause the emission into the atmosphere
of harmful pollutants.”).
47a
Exxon’s unlawful conduct. Under Supreme Court
precedent, this means that Plaintiffs must show that
their members’ injuries were “likely caused by”
Exxon,133 or that their current or threatened injuries
are “a consequence of [Exxon’s] ongoing unlawful
conduct.”134 This causation standard is notably less
demanding than proving tort causation.135
a. The Cedar Point Framework.
In Sierra Club, Lone Star Chapter v. Cedar Point
Oil Co., our Court adopted a three-prong test first
articulated by the Third Circuit that permits citizensuit plaintiffs to establish traceability through
133
TransUnion, 594 U.S. at 423 (emphasis added); see also
Duke Power Co., 438 U.S. at 75 n.20 (requiring “no more than a
showing that there is a ‘substantial likelihood’” to meet the
second prong of standing).
134
135
Laidlaw, 528 U.S. at 186.
Lexmark Int’l, Inc. v. Static Control Components, Inc.,
572 U.S. 118, 134 n.6 (2014) (“Proximate causation is not a
requirement of Article III standing, which requires only that the
plaintiff’s injury be fairly traceable to the defendant’s conduct.”);
Bennett v. Spear, 520 U.S. 154, 168–69 (1997) (noting that
plaintiffs need not prove that “the defendant’s actions are the
very last step in the chain of causation”); Khodara Env’t, Inc. v.
Blakey, 376 F.3d 187, 195 (3d Cir. 2004) (Alito, J.) (“Article III
standing demands ‘a causal relationship,’ but neither the
Supreme Court nor our Court has ever held that but-for
causation is always needed.”); Buchholz v. Meyer Njus Tanick,
PA, 946 F.3d 855, 866 (6th Cir. 2020) (“The standard for
establishing traceability for standing purposes is less
demanding than the standard for proving tort causation.”
(citation omitted)); Gaston Copper, 204 F.3d at 161 (“[T]he ‘fairly
traceable’ standard is not equivalent to a requirement of tort
causation.” (internal quotation marks and citations omitted));
Tazzi v. U.S. Dep’t of Health & Hum. Servs., 271 F.3d 301, 308
(D.C. Cir. 2001) (“[W]e have never applied a ‘tort’ standard of
causation to the question of traceability.” (citation omitted)).
48a
circumstantial evidence.136 Several of our sister
circuits have subsequently adopted this test.137 To
satisfy the Cedar Point test, a plaintiff is required to
show that the defendant:
(1)
discharged
some
pollutant
in
concentrations greater than allowed by its
permit (2) into a waterway138 in which the
plaintiffs have an interest that is or may be
adversely affected by the pollutant and that
(3) the pollutant causes or contributes to the
kinds of injuries alleged by the plaintiffs.139
As explained by the Third Circuit, this “test in no
way replaces the three-prong test for standing under
Article III,” and instead “merely enables a plaintiff to
link an environmental injury to the defendant’s
136
73 F.3d at 557–58.
137
Fourth Circuit: Gaston Copper, 204 F.3d at 159–62;
Ninth Circuit: NRDC v. Sw. Marine, Inc., 236 F.3d 985, 995 (9th
Cir. 2000); Tenth Circuit: Utah Physicians, 21 F.4th at 1244–45;
Third Circuit: NRDC, Inc. v. Texaco Ref. & Mktg., Inc., 2 F.3d
493, 505 (3d Cir. 1993); Sixth Circuit: Am. Canoe Ass’n, Inc. v.
City of Louisa Water & Sewer Comm’n, 389 F.3d 536, 542–43
(6th Cir. 2004); Seventh Circuit: Tex. Indep. Producers & Royalty
Owners Ass’n v. EPA, 410 F.3d 964, 973–74 (7th Cir. 2005).
138
We have since applied the Cedar Point test to cases
alleging violations of the CAA. See Texans United, 207 F.3d at
790, 792–93. Other courts have as well. See, e.g., Utah
Physicians, 21 F.4th at 1244–45; Concerned Citizens Around
Murphy v. Murphy Oil USA, Inc., 686 F. Supp. 2d 663, 669, 672–
73 (E.D. La. 2010); Ctr. for Biological Diversity v. Univ. of N.C.
at Chapel Hill, No. 19-1179, 2021 WL 3861388, at *6 (M.D.N.C.
Aug. 30, 2021) (“Several other circuits and district courts have
applied similar standards in environmental suits involving the
Clean Air Act and Clean Water Act.”).
139 Cedar Point, 73 F.3d at 557 (quoting Powell Duffryn
Terminals, 913 F.2d at 72).
49a
pollution when the plaintiff is unable to prove ‘to a
scientific certainty’ that the defendant’s discharges
(and not those of some other nearby polluter) caused
the injury.”140 Put differently, the Cedar Point test
permits citizen-suit plaintiffs, like all other litigants,
to rely on circumstantial evidence, such as “proximity
to polluting sources” or “past pollution” to establish
traceability.141
In applying the Cedar Point test, we have
cautioned that a plaintiff’s injuries cannot be
considered “fairly traceable” to a particular
defendant’s actions if the plaintiff is too far removed
from the point of discharge.142 In light of this concern,
our post-Cedar Point caselaw has clarified that the
three-part test is meant to account for geographic
proximity.143 In considering geographic proximity, we
have distinguished between two types of plaintiffs:
those who “sit[] squarely in the discharge zone of a
140
Pub. Interest Rsch. Grp. of N.J. Inc. v. Magnesium
Elektron, Inc., 123 F.3d 111, 121– 22 (3d Cir. 1997).
141 See Gaston Copper, 204 F.3d at 163 (“Litigants routinely
rely on circumstantial evidence . . . [a]nd if a prosecutor may rely
wholly on circumstantial evidence to prove that a criminal
defendant is guilty beyond a reasonable doubt, there is no
apparent reason—and certainly not a reason apparent from the
Constitution . . .—to regard this type of proof as per se deficient
for establishing standing in a Clean Water Act case.”).
142
See Friends of the Earth, Inc. v. Crown Cent. Petroleum
Corp., 95 F.3d 358, 361 (5th Cir. 1996) (“[S]ome ‘waterways’
covered by the CWA may be so large that plaintiffs should
rightfully demonstrate a more specific geographic or other
causative nexus in order to satisfy the ‘fairly traceable’ element
of standing.” (quoting Cedar Point, 73 F.3d at 558 n.24)).
143 See, e.g., id. at 361–63 (considering geographic
proximity under the second prong of the Cedar Point test).
50a
polluting facility,” and those who are “so far
downstream that their injuries cannot fairly be traced
to that defendant.”144 Only the more distant type of
plaintiff must produce additional evidence that the
pollutants or their effects could have reached them.145
b. Plaintiffs’ Evidence Satisfied the
Cedar Point Factors.
Here, the district court, in a detailed opinion,
applied Cedar Point and its progeny to find that
Plaintiffs satisfied the fairly traceable element of
standing.146 At the outset of its traceability analysis,
the district court cited our case, Texans United for a
Safe Economy Education Fund v. Crown Central
Petroleum Corp.,147 for the proposition that “the
plaintiffs[’] injury does not have to be linked to exact
dates that the defendant’s violations occurred, and
144
Gaston Copper, 204 F.3d at 162 (citing Crown Cent., 95
F.3d at 361–62).
145
See id. at 159–60 (“Nor has any circuit required
additional scientific proof where there was a direct nexus
between the claimant and the area of environmental impact
. . . .”); Crown Cent., 95 F.3d at 362 (noting that “plaintiffs who
use ‘waterways’ far downstream from the source of unlawful
pollution may satisfy the ‘fairly traceable’ element by relying on
alternative types of evidence,” such as water samples or expert
testimony (citing Cedar Point, 73 F.3d at 558 n.24)); Texans
United, 207 F.3d at 792–93 (holding that plaintiffs established
traceability because their members “reside in the Pasadena
area” and presented evidence that they “observed smoke from
[the defendant]’s [Pasadena] plant in their neighborhood at the
same time that they smelled sulfurous odors” and “expert
evidence demonstrating that on certain days when [defendant]
experienced process upsets, excess sulfur dioxide emissions were
detectable in the neighborhood”).
146
2017 D. Ct. Op., 2017 WL 2331679, at *10.
147
207 F.3d at 793.
51a
the plaintiff does not have to ‘show to a scientific
certainty that defendant’s [emissions], and
defendant’s [emissions] alone, caused the precise
harm suffered by the plaintiffs.’”148 The court then
noted that “[e]ven though Plaintiffs’ members’
injuries do not have to be linked to exact dates that
the Events and Deviations occurred, Plaintiffs’
members correlated some of the experiences
described . . . to five Events or Deviations.”149 It is
from this language that Exxon roots its argument
that Plaintiffs have established standing for only five
emissions events (which resulted in forty days of
violations).150
We agree with the district court that Plaintiffs
adduced sufficient circumstantial evidence via the
Cedar Point framework to establish the “fairly
traceable” prong of standing. As to the first Cedar
Point factor (the emission of pollutants in excess
of permit limits), Exxon stipulated to various
spreadsheets outlining its thousands of permit
violations. Based on this evidence, the district court
148
2017 D. Ct. Op., 2017 WL 2331679, at *10 (quoting
Texans United, 207 F.3d at 793).
149
150
Id.
A review of Plaintiffs’ members’ testimony at trial
reveals that these five events are hardly the only emissions
events that members experienced. To the contrary, one member,
Mr. Cottar, testified that on average he saw a “flaring event” at
the Complex once a week. However, Mr. Cottar explained that
he did not “create a written record of every incident” that
occurred during the eight-year claims period and therefore was
unable to recall the date of every incident he experienced based
on his memory alone.
52a
correctly found that Exxon discharged pollutants in
greater concentrations than allowed by its permits.151
As to the second Cedar Point factor (emissions
have the potential to adversely affect an area in
geographic proximity to plaintiffs), the district court
credited Plaintiffs’ members’ testimony that Exxon’s
emissions adversely affect or have the potential to
adversely affect the area around the Complex where
they live and visit. As noted above, at the time of suit,
one member lived one-quarter mile from the Complex,
and another lived a half-mile away. The district court
relied on these members’ testimony that from their
homes they could see flares, smoke, and haze
originating from the Complex.152 Additionally, they
could smell chemical odors from their homes when the
wind was blowing in from the Complex and noticed
these odors became stronger closer to the Complex.153
Finally, the court noted that members’ physical
symptoms improved when they moved away from the
Complex.154
Moreover, we note that the injuries members
suffered within a mile or two of the Complex are likely
so “squarely in the [emission] discharge zone” that no
151
2017 D. Ct. Op., 2017 WL 2331679, at *16–21 (finding
Exxon committed: (1) 10,583 days of actionable violations under
Count I; (2) 4,038 days of actionable violations at the olefins
plant and 1,671 days at the chemical plant under Count II; (3)
eighteen days of actionable violations under Count III; (4) fortyfour days of actionable violations under Count 4; and (5) thirtytwo days of actionable violations under Count 5).
152
Id. at *10.
153
Id.
154
Id.
53a
further geographic analysis is necessary.155
Regardless, Plaintiffs did provide additional evidence
of geographic proximity, including from Exxon’s own
air dispersion modeling of selected emissions events
indicating that off-site pollutant levels exceeded
safety standards on over 130 occasions. Additionally,
Plaintiffs’ expert, Dr. Edward Brooks, opined that it
was “very likely that health effects occurred in
exposed neighborhoods bordering the complex” from
Exxon’s emission of sulfur dioxide. He made similar
conclusions for various other pollutants emitted by
Exxon.156 And Exxon’s own expert testified that the
pollutants emitted from the Complex “can travel
significant distances beyond the fence line of the
complex.” Based on this evidence, the district court
did not clearly err in finding that Plaintiffs
155
Gaston Copper, 204 F.3d at 162. Cf. Ctr. for Biological
Diversity v. U.S. EPA, 937 F.3d 533, 539 (5th Cir. 2019) (“A
geographic area as big as the ‘Western and Central portions of
the Gulf’ cannot support Article III standing.” (citation omitted));
Lujan, 504 U.S. at 567 n.3 (noting that the “geographic
remoteness of those members (here in the United States) from
Sri Lanka and Aswan” absent any evidence “showing the impact
upon animals in those distant places will in some fashion be
reflected here” prevents a finding of standing).
156
For example, Dr. Brooks opined that a March 29, 2012,
upset event involving hydrochloric acid produced exposure levels
“clearly high enough to be of concern to those living near the
Baytown Complex.” He also found that the “elevated levels of
benzene in the ambient air near the Baytown Complex
contributes to incremental increases in cancer risk” given that
benzene has “no safe effects threshold.” Dr. Brooks further
opined that “significant health effects would be expected” from
the Complex’s emission of hydrogen sulfide between 2005 and
2011, particularly when coupled with exposure to co-pollutants.
54a
established geographic proximity157 and satisfied the
second prong of the Cedar Point test.
As for the final Cedar Point factor (pollutants
cause or contribute to alleged injuries), in addition to
the aforementioned testimony from Plaintiffs’
members, Plaintiffs also introduced expert testimony
from Dr. Brooks about “the likelihood that particular
emissions events at the Baytown Complex, in fact,
created a[] risk of adverse health effects in the
surrounding communities.” Plaintiffs also relied on
testimony from Exxon’s own personnel and expert
witnesses. Finally, they supplemented the above
testimony with toxicological profiles and studies from
various government agencies discussing the side
effects of exposure to specific concentrations of the
various pollutants Exxon emitted.
Below, divided by each Count (or each emission
standard or limitation if more than one exists within
a Count), is a summary of the evidence Plaintiffs
introduced about the potential health effects of the
pollutants Exxon emitted.
Count I and Count II encompass claims to enforce
various pollutant-specific emission limits. Because
each pollutant limit is a separate “emission standard
or limitation,” we look at each pollutant individually.
157
See Texas v. Nuclear Regul. Comm’n, No. 21-60743,
2023 WL 5498874, *5 (5th Cir. Aug. 25, 2023) (holding that
plaintiffs’ members’ had geographic proximity to radioactive
materials given that members “own land within four miles of the
facility, draw water from wells beneath the facility, drive within
a mile of the facility, use rail lines the facility would use, and
travel on highways within a few hundred feet of the rail lines
that transport spent nuclear fuel to the facility” (citation
omitted)).
55a
Some pollutants contribute to several of the members’
injuries and therefore may be listed twice.
Odor-causing
pollutants:
Plaintiffs’ members’
injuries:
Natural gas has a
“pungent
odor.”
Ammonia & ammonium
compounds
have
a
“pungent cleaning-type
smell.” Sulfur dioxide
(SO2 & SOx) is a
colorless gas with a
pungent odor that smells
like
rotten
eggs.
Hydrogen sulfide is a
colorless gas with a
smell of rotten eggs or
fecal matter which is
detectable even at very
low
concentrations.
Hydrochloric
acid /
hydrogen chloride has a
“strong irritating odor.”
Carbonyl sulfide has a
typical sulfide odor.
Benzene has a sweet
odor. Carbon disulfide
has a sweet smell,
although impure carbon
disulfide
has
an
“unpleasant odor like
that of rotting radishes.”
Hydrogen cyanide has a
bitter, “almondlike” odor.
Members testified that
they smelled “pungent”
odors emanating from
the Complex, such as
sulfur,
rotten
egg,
gasoline, sweet, and
chemical odors.
56a
Pollutants that are
hazardous to human
health:
Plaintiffs’ members’
injuries:
Carbon monoxide, nitrogen oxides (nitrogen
dioxide and nitrogen
oxide), sulfur dioxide
(SO2 & SOx), and
particulate matter are
defined by the EPA as
“criteria
pollutants”
with “significant health
effects.” Chronic exposure to even “lower
levels” of these pollutants can cause respiratory disease, cancer, and
premature death. The
EPA also has a list of 187
substances
it
categorizes as Hazardous
Air Pollutants (“HAPs”).
HAPs are “pollutants
that cause or may cause
cancer or other serious
health effects, such as
reproductive and neurological deficits and birth
defects.”
42 U.S.C.
§ 7412(b)(1).
Benzene,
chlorine, volatile organic compounds (VOCs)
(e.g., N-methyl-2-pyrrolidone, toluene, 1,3butadiene), and crude oil
Members testified that
they feared an increased
risk of cancer due to
Exxon’s emission of
cancer-causing chemicals. They also testified
that the odors, flares,
smoke, and haze coming
from the Complex made
them concerned for their
health because they
believe Exxon is emitting harmful chemicals.
Several members cited
specific concerns about
allergies and cancer.
One member testified
that during two specific
emissions events he
smelled a “very sweet”
odor that caused him an
immediate headache.
57a
are all HAPs. Benzene,
in particular, has “no
safe threshold exposure
level.” The biggest risk
from long-term exposure
to benzene is cancer, but
even brief exposure at
low levels can cause
headaches.
Pollutants that cause
respiratory problems
and eye/skin
irritation:
Plaintiffs’ members’
injuries:
Hydrochloric
acid/
hydrogen chloride can
cause irritation of the
throat, eyes, and skin.
Long-term exposure to
low levels can cause
respiratory
problems.
Carbonyl sulfide can
cause eye and skin
irritation.
Hydrogen
cyanide inhaled at low
levels over a period of
years can cause difficulties breathing, chest
pain, vomiting, blood
changes, headaches, and
enlargement
of
the
thyroid gland. Hydrogen sulfide at low levels
of exposure can cause
fatigue, insomnia, head-
One member testified
that his family suffers
from asthma and has
“asthma-related
reactions” to emissions
events. Other members
testified
that
they
suffered from respiratory issues and allergies
(such as runny nose,
watery eyes, sneezing).
And another member
testified that she no
longer runs outside in
Baytown because she
would
feel
“labored
breathing”
and
an
“abrasive feeling” in her
throat and lungs.
58a
aches, vomiting, irritation to the eyes, nose, or
throat, and may cause
difficulty breathing for
some asthmatics. Nitrogen oxides (nitrogen
dioxide and nitrogen
oxide) even at low levels
of exposure can cause
eye, nose, throat, and
lung irritation and can
cause coughing and
shortness of breath.
Sulfuric acid can induce
immediate respiratory
symptoms
resembling
asthma.
Pollutants that are
flammable/contribute
to smoke:
Plaintiffs’ members’
injuries:
Carbon disulfide is a
colorless liquid that
easily explodes in the air
and catches fire “very
easily.”
Hydrogen
sulfide is flammable.
Opacity/visible
emissions is an “indirect
measurement from a
flare for particulate
matter.” The higher the
opacity,
the
more
particulate matter is
omitted. As described by
Several
members
testified that they are
concerned about the risk
of an explosion at the
Complex,
especially
when they see big flares
and dark smoke coming
from
the
Complex
“abrasive feeling” in her
throat and lungs.
59a
Jeffrey
Kovacs,
an
Exxon employee, opacity is determined by
looking at smoke and
determining “how much
light transmits through
it.”
The thicker and
blacker the smoke, the
higher the opacity.
Count III is a claim to enforce a plant-wide limit
on the emission of HRVOCs. HRVOCs are closely
associated with the formation of ground-level ozone,
which is associated with haze and difficulties
breathing. Several members testified that they have
respiratory problems, with one member testifying
that she experiences a “twinge” in her breathing from
the air quality in Baytown, and another member
testifying that she has “labored breathing” when she
runs outside in Baytown.
Count IV is a claim to enforce the limit on
“smoking” flares at all three plants. The smoking flare
rule prohibits visible emissions (i.e., smoke) from
flares except for periods not to exceed a total of five
minutes during any two consecutive hours. Two
members cited to their concerns about seeing black
smoke emanating from the Complex.
Count V is a claim to enforce a plant-wide permit
that requires flares to operate with a pilot flame at all
times. As explained by Plaintiffs’ expert, Dr. Ranajit
Sahu, if a pilot flame is out, the Complex’s flares will
release higher concentrations of pollutants. Exxon’s
release of higher quantities of the pollutants listed in
Counts I and II into the atmosphere will cause
Plaintiffs’ members to suffer the same injuries cited
60a
above. The main difference is that violations of Count
V may impact a larger segment of the Baytown
community. Exxon’s expert, David Cabe, testified
that pollutants emitted from higher levels (i.e., from
a flare) can cause ground level concentrations of that
pollutant to “occur at distances further away than the
area closest to the emission point.”
Based on this evidence,158 the district court did not
commit clear error in finding that Exxon’s unlawful
emission of particular pollutants causes or
contributes to the kinds of injuries suffered by
Plaintiffs’ members. Or, in the language of Laidlaw,
Plaintiffs established that their members have
“reasonable concerns” about their health given
Exxon’s ongoing unlawful emissions of various
pollutants that are harmful to human health.
Accordingly, we find no error in the district court’s
finding that Plaintiffs submitted sufficient evidence
to satisfy the Cedar Point test and thus that there is
a “substantial likelihood” that Exxon’s illegal
emissions have put Plaintiffs’ members at an
increased risk of injury.159
c. Exxon’s Challenges to Existing
Precedent are Unpersuasive.
In response, Exxon attacks the applicability of the
Cedar Point framework. In particular, it suggests we
take this opportunity to clarify or overrule our
existing precedent in two citizen-suit cases: Cedar
Point and Texans United.160 For the reasons given in
158
2017 D. Ct. Op., 2017 WL 2331679 at *10 & n.155.
159
Duke Power Co., 438 U.S. at 75 n.20.
160
Exxon asserts that a “correct” reading of Texans United
must focus on the fact that it was a summary judgment appeal
61a
Part II.B.1-2 of this opinion, we decline Exxon’s
invitation.
Our opinions in Cedar Point and Texans United
rejected Exxon’s proposed retrospective violation-byviolation traceability test consistent with both
Laidlaw and precedent from other courts of appeals
in environmental cases.161 This is true regardless of
Exxon’s assertion that Laidlaw lacks precedential
and is therefore distinguishable from this case which proceeded
to trial. In Texans United, our Court applied the summary
judgment standard that asks “whether reasonable jurors could
find by a preponderance of the evidence that the plaintiff [was]
entitled to a verdict.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 252 (1986) (emphasis added) (citation omitted). This
standard is entirely consistent with the sub-stantive evidentiary
standard of proof that the district court applied in trying this
case. And to the extent Exxon contends that summary-judgment
standing cases are inapplicable here, we note that both Laidlaw
as well as several circuit court cases cited herein found standing
after trial. See, e.g., Laidlaw, 528 U.S. at 181–83; Utah
Physicians, 21 F.4th at 1239, 1245–46; Benham, 885 F.3d at
1273.
161
Gaston Copper, 204 F.3d at 161 (“Rather than
pinpointing the origins of particular molecules, a plaintiff must
merely show that a defendant discharges a pollutant that causes
or contributes to the kinds of injuries alleged in the specific
geographic area of concern.” (internal quotation marks and
citation omitted)); Sw. Marine, Inc., 236 F.3d at 994–95 (same);
Tex. Indep. Producers, 410 F.3d at 973–74 (same); Powell
Duffryn Terminals, 913 F.2d at 72 (“The ‘fairly traceable’
requirement . . . is not equivalent to a requirement of tort
causation.” (citing Duke Power Co., 438 U.S. at 75 n.20)); see also
Percival & Goger, supra note 98, at 145 (“In light of Laidlaw and
Gaston Copper, standing requirements in environmental citizen
suits now can be met through use of ‘circumstantial evidence
such as proximity to polluting sources, predictions of discharge
influence, and past pollution,’ which may be used to prove injury
in fact and traceability.” (internal citation omitted)).
62a
value for purposes of traceability because it did not
address that prong separately from injury-in-fact and
redressability. Despite not using the words “fairly
traceable,” the Laidlaw Court’s holding that there
was “nothing improbable” about the fact that the
defendant’s illegal discharges “would cause nearby
residents to curtail their recreational use of the
waterway” is a clear indication that the Court
considered
traceability
and
concluded
that
circumstantial evidence not tied to specific violations
was sufficient to establish standing.162 Indeed, the
Court could not have found standing without
ensuring that the traceability prong was satisfied.
Exxon further contends that we should clarify that
the Cedar Point framework is only applicable in cases
involving “a small body of water, close proximity,
well-understood water currents, and persistent
discharges.” In support of this contention, Exxon
asserts that in Center for Biological Diversity v.
United States EPA,163 a panel of this Court limited
Cedar Point to cases involving the above
circumstances.
In Center for Biological Diversity, environmental
organizations brought suit against the EPA alleging
it failed to satisfy certain procedural requirements in
162
See Note, supra note 131, at 2275 (noting that in
Laidlaw “the Court’s injury analysis overlapped with the
causation inquiry”); Gallagher, supra note 113, at 25 (suggesting
that Laidlaw’s treatment of plaintiffs’ “reasonable concern” was
“purely a traceability analysis” and held that “because the
plaintiffs’ reasonable concern there was based on a geographic
nexus to the environmental violations” they had established
traceability).
163
937 F.3d at 545.
63a
its approval of a general permit for various oil and gas
operations located in the Gulf of Mexico.164 A panel of
this Court held that three of plaintiffs’ members failed
to prove they suffered an injury-in-fact because their
planned future activities in a “geographic area as big
as the ‘Western and Central portions of the Gulf’
cannot support Article III standing.”165 The panel
noted that our decision in Cedar Point was not to the
contrary because “the Cedar Point plaintiffs had
better evidence of a geographic nexus.”166
After holding that the plaintiffs’ members failed to
prove they suffered an injury-in-fact, the Center for
Biological Diversity panel in dicta noted that
plaintiffs also did not establish that the EPA’s
issuance of the general permit was fairly traceable to
their members’ alleged injuries.167 As part of its
traceability discussion, the panel “distinguished
Cedar Point” on the grounds that the “Cedar Point
affiant used the specific area of the Bay in which
unlawful discharges occurred, and that played an
important role in our [Cedar Point] decision.”168 The
panel then noted that “Cedar Point and Crown
164
Id. at 535–36.
165
Id. at 539 (citation omitted).
166
Id. at 541.
167
See id. at 542 (“Even if Petitioners could show injury,
they could not meet another of Article III’s standing
requirements: traceability.”). The only evidence in the record of
traceability was one member’s declaration that he “spend[s] time
in the western Gulf of Mexico in the same areas that will be
directly affected by wastewater discharges from offshore oil and
gas activities.” Id. at 545.
168
Id. (internal quotation marks and citation omitted).
64a
Centra169 establish this lesson: Whether a court can
infer a causal link between a source of pollution and
at least some portion of a petitioner’s injury is a factspecific inquiry that turns on many factors, including
the size of the waterway, the proximity of the source
and the injury, forces like water currents, and
whether discharges will evaporate or become
diluted.”170
Although Exxon latches onto the above dicta as
“limiting” the scope of Cedar Point to cases involving
small bodies of water with understood water currents
and persistent discharges, we instead read the panel’s
Cedar Point discussion as simply differentiating
the case before it from Cedar Point on the grounds
of geographic proximity. And the chief concern
animating the Court’s standing analysis in Center for
Biological Diversity—a lack of geographic nexus—is
not a concern here. Plaintiffs’ members live and
recreate less than a mile from the Complex and
supplied detailed testimony, credited by the district
court, about the specific locations and ways in which
they are impacted by Exxon’s unlawful emissions.
Finally, given that the applicability of the Cedar
Point framework is fact-specific, we decline to impose
169
In Crown Central, this Court held that an organization
whose membership included individuals who used a body of
water “located three tributaries and 18 miles ‘downstream’” from
the source of the unlawful discharge failed to establish
traceability. 95 F.3d at 361–62. In so concluding, we cautioned
that “some ‘waterways’ covered by the CWA may be so large that
plaintiffs should rightfully demonstrate a more specific
geographic or other causative nexus in order to satisfy the ‘fairly
traceable’ element of standing.” Id.
170
omitted).
Ctr. for Biological Diversity, 937 F.3d at 545 (citation
65a
categorical rules for its applicability going forward or
make any broader pronouncement about the
framework beyond our finding that it is applicable to
the present case.
d. Exxon’s Challenges to Plaintiffs’
Traceability Evidence Lack Merit.
Finally, Exxon takes aim at the evidence Plaintiffs
relied on for traceability, suggesting that if Plaintiffs
had offered “scientific evidence” or “more convincing
evidence,” they may have established traceability for
more than forty days of violations. But the record
contradicts Exxon’s assertion. As recognized by the
district court,171 Plaintiffs did rely on scientific
evidence to establish traceability. Plaintiffs
introduced evidence from expert witnesses and from
published studies about the harmful effects of
exposure to the pollutants emitted by Exxon.
Additionally, Plaintiffs relied on Exxon’s own air
dispersion modeling data to show that emissions from
the Complex have reached areas where their
members live and work in concentrations above
regulatory thresholds.
In seeking to undermine Plaintiffs’ traceability
evidence, Exxon repeatedly downplays the harm its
ongoing violations have caused and will cause in the
171
See 2017 D. Ct. Op., 2017 WL 2331679, at *10
(“Additionally, Plaintiffs submitted evidence of the potential
health effects caused by the types of pollutants emitted during
the Events and Deviations, and some of these potential health
effects match some of the experiences of Plaintiffs’ members.”);
id. at *10 n.155 (“For example, hydrogen sulfide can smell badly
and cause headaches, and one of Plaintiffs’ members smelled
strong, pungent odors that, on occasion, caused him
headaches.”).
66a
future by focusing on its smaller violations, such as
the short- circuited extension cord or the fire in a
cigarette butt can. Exxon’s focus on these few events
misses the forest for the trees. As explained by
Environment Texas Citizen Lobby’s director at trial,
if the issue here were a few violations like the fire in
the cigarette butt can or the smoldering board, “then
we wouldn’t be suing over this; but [in this case there
are] 287 pages of small . . . print that together adds
up to . . . almost a million and quarter pounds of
pollution. So together it adds up to a huge amount”
and it “goes to show that Exxon’s not running the
facility very well” if it has “these emission events over
and over again.”
And although violations that involve small fires or
ignition sources may seem like minor issues in a
regular work environment, there is a reason state law
requires Exxon to keep records of these types of
violations. This is because the Complex stores, in the
words of one Exxon employee, “millions and millions
and millions of gallons of flammable liquids and
gasses.” In order to prevent the ignition of these
flammable liquids and gasses, ignition sources, such
as smoldering boards, are not permitted in process
areas of the Complex. Such preventative measures
are needed because, as explained by Plaintiffs’ expert,
a “fire [at the Complex] is extremely uncontrollable
and unpredictable” and even “a small fire that starts
small [can] . . . very rapidly grow to a very large
conflagration . . . in a matter of seconds.”
At trial, several members testified that they are
concerned about an explosion at the Complex. Such
concerns are entirely reasonable in light of these
repeated fire and ignition source violations, Exxon’s
67a
emission of flammable gases, and the 353 emission
events at the Complex that involved fires. That is all
Plaintiffs have to show to establish traceability—
Exxon’s violations cause or contribute to Plaintiffs’
members’ injuries. The court considers the
seriousness and duration of these violations at the
penalty stage.172
Thus, the district court did not err in concluding
that for each of Plaintiffs’ claims, they presented
sufficient circumstantial evidence that their
members’ injuries are “fairly traceable” to Exxon’s
violations.
5. Redressability.
Plaintiffs here seek civil penalties for Exxon’s
continuing and threatened future violations. As with
the other elements of standing, Laidlaw is the
definitive authority on redressability in citizen-suit
environmental cases. In Laidlaw, the Court
recognized that civil penalties “promote immediate
compliance” and “deter future violations,”173 and
therefore “afford redress to citizen plaintiffs who are
injured or threatened with injury as a consequence of
ongoing unlawful conduct.”174 Redressability in
environmental citizen suits thus requires that the
defendant’s violations be “ongoing at the time of the
complaint and . . . could continue into the future if
undeterred.”175
172
See 42 U.S.C. § 7413(e)(1) (requiring the district court
to consider, among other things, the “seriousness of the
violation” and “the duration of the violation”).
173
Laidlaw, 528 U.S. at 185.
174
Id. at 186.
175
Id. at 188.
68a
Thus, the relevant inquiry is whether Exxon was
committing violations at the time Plaintiffs filed suit
in December of 2010 and thereafter. The answer is
clear: Exxon committed violations after the complaint
was filed, and indeed right up to the time of trial. The
parties stipulated to spreadsheets listing Exxon’s
violations between October 2005 and September
2013.176 Based on these spreadsheets, Plaintiffs
introduced exhibits tallying the number of days of
pre-complaint and post-complaint violations for each
count.177 The district court adopted Plaintiffs’ tallies
for Counts I-V and Exxon does not challenge that
finding on appeal.178 Accordingly, the district court’s
finding that Exxon committed nearly three years of
post-suit violations is not clearly erroneous.
In sum, because Exxon was continuing to violate
the CAA from the time the complaint was filed and
thereafter, civil penalties would redress any ongoing
or future harm to Plaintiffs’ members as a result of
Exxon’s ongoing unlawful conduct.179
* * *
After applying well-established Article III
standing jurisprudence, we conclude the district court
176
2017 D. Ct. Op., 2017 WL 2331679, at *12; ETCL I, 824
F.3d at 514–15.
177
2017 D. Ct. Op., 2017 WL 2331679, at *12.
178
Id. at *13–21.
179
See Laidlaw, 528 U.S. at 176–77 (finding redressability
because plaintiffs sued in 1992 for 489 violations that began in
1987 and continued through 1995); Gaston Copper, 204 F.3d at
163 (finding redressability for injunctive relief and civil
penalties because the defendant committed hundreds of
discharge and monitoring violations after the complaint was
filed).
69a
correctly held that Plaintiffs established all three
prongs of standing. Specifically, Plaintiffs have
demonstrated that their members suffer from ongoing
harms and the likelihood of future harms, traceable
to Exxon’s ongoing violations, and redressable by civil
penalties. In so concluding, we find it striking that so
many of the arguments advanced by Exxon are
directly incompatible with Supreme Court precedent.
And the positions Exxon takes that have not been
addressed by the Supreme Court nonetheless stand
out as outliers from decisions of every other circuit,
including our own, that has passed on these
questions.180
Accordingly, we hold that the district court’s 2017
judgment correctly found that Plaintiffs have
standing to assert their claims encompassing all the
actionable violations at issue in this case.
6. Separation-of-Powers Concerns.
Both Exxon’s and Industry Amici’s briefs
emphasize that an unprincipled approach to standing
would allow Plaintiffs “to transform this citizen suit
into a quasi-regulatory proceeding without any
limits,” and in the process infringe on the Executive
Branch’s enforcement of the law. There are three
main reasons why this case does not raise Article II
separation-of-powers concerns.
First, the CAA places limits on citizen suits and
thus ensures that such cases “supplement rather than
. . . supplant governmental action.”181 For example, at
least sixty days before filing a citizen suit, a plaintiff
must give “notice of the violation (i) to the
180
See supra notes 62, 116, 137, & 161.
181
Gwaltney, 484 U.S. at 60.
70a
Administrator, (ii) to the State in which the violation
occurs, and (iii) to any alleged violator of the
standard, limitation, or order” allegedly violated.182
“The requirement that notice be given to the
responsible officials highlights their primary role in
enforcing the Act compared to the supplementary
position of the citizen.”183 There is also a diligent
prosecution bar, which provides that a citizen suit
may not be commenced “if the Administrator or State
has commenced and is diligently prosecuting a civil
action in a court of the United States or a State to
require compliance with the standard, limitation, or
order.”184 Thus, the CAA sets clear limits on citizen
suits to ensure that they do not overstep their role.
Second, the Government supports Plaintiffs’ suit.
In response to Justice Scalia’s dissent raising
separation-of-powers concerns, the majority in
Laidlaw observed that “the Federal Executive Branch
does not share the dissent’s view that such suits
dissipate its authority to enforce the law. In fact, the
Department of Justice has endorsed this citizen suit
from the outset, submitting amicus briefs in support
of [plaintiffs] in the District Court, the Court of
Appeals, and this Court.”185 Similarly, the
Department of Justice in this case submitted amicus
briefs supporting Plaintiffs. And in cases where the
Executive Branch opposes a citizen suit, the Laidlaw
182
42 U.S.C. § 7604(b)(1)(A).
183
Hamker v. Diamond Shamrock Chem. Co., 756 F.2d
392, 395–96 (5th Cir. 1985) (discussing the notice requirement
in the Clean Water Act which is identical to the notice
requirement in the Clean Air Act).
184
42 U.S.C. § 7604(b)(1)(B).
185
Laidlaw, 528 U.S. at 188 n.4.
71a
majority correctly noted that the EPA Administrator
can intervene as a matter of right.186
Third, respect for the separation of powers
counsels against adoption of Exxon’s overly strict and
unprecedented interpretation of standing in citizen
suits. Courts must avoid infringing “the idea of
separation of powers . . . either by reaching beyond
jurisdictional limitations to decide abstract questions
or by refusing to decide concrete cases that Congress
wants adjudicated.”187 Exxon’s exclusive focus on the
first concern leads it to advocate for a theory of
standing that conflicts with the latter.
Congress enacted the CAA’s citizen-suit provision
“to encourage citizen participation” in the
enforcement of the CAA and saw such suits as
necessary given that the Government’s “initiative in
seeking enforcement under the Clean Air Act has
been restrained.”188 Similarly, Congress intended
citizen suits use publicly available information about
an alleged violator’s compliance (or non-compliance)
with the Act.189 The fact that Exxon disagrees with
186
Id.; 42 U.S.C. § 7604(c)(2).
187
Gaston Copper, 204 F.3d at 164.
188
Del. Valley Citizens’ Council for Clean Air, 478 U.S. at
560 (internal quotation marks and citation omitted); see also
Friends of the Earth v. Carey, 535 F.2d 165, 172 (2d Cir. 1976)
(reviewing the legislative history and concluding that “the
citizen suits provision reflected a deliberate choice by Congress
to widen citizen access to the courts, as a supplemental and
effective assurance that the Act would be implemented and
enforced” and therefore “citizen groups are not to be treated as
nuisances or troublemakers but rather as welcomed participants
in the vindication of environmental interests”).
189 See Hon. Henry A. Waxman, An Overview of the Clean
Air Act Amendments of 1990, 21 ENVT'L L. 1721, 1747–48, 1809
72a
these legislative choices given its concern about
“runaway citizen suits”190 does not give this Court
license to raise the standing hurdle higher than is
required by Article III. This is of course because
“Article III requires [among other things] a cognizable
injury; it does not speak to the wisdom of the
legislature’s actions in providing redress for that
injury.”191 Accordingly, we reject Exxon’s policy
arguments about the wisdom of citizen suits and its
attempt to impose unprecedented standing
requirements for such cases.
(1991) (detailing the provisions in the 1990 Amendments to the
CAA requiring “sources to report regularly on their compliance
status” which “will provide readily accessible information that
citizens can use to determine the compliance status of sources”);
David T. Buente, Citizen Suits and the Clean Air Act
Amendments of 1990: Closing the Enforcement Loop, 21 Envt'l
L. 2233, 2240 (1991) (“The 1990 Amendments make a number of
changes to the CAA which may substantially facilitate a citizen’s
ability to easily marshal[] evidence to prove violations.”).
190
Exxon’s argument that citizen-suit plaintiffs must
establish standing for each violation—an approach no other
court has taken—to avoid “runaway” citizen suits based on
publicly available information is not supported by the status
quo. As pointed out by one amicus brief, between 2019 and 2022,
“citizens annually brought an average of only four suits alleging
Clean Air Act violations by polluters.” Moreover, most citizen
suits are filed against the federal government involving
“challenges to major policies or programs.” Between 2001 and
2016, only “18 percent of cases involve[d] enforcement actions
against private entities.” David E. Adelman & Jori ReillyDiakun, Environmental Citizen Suits and the Inequities of Races
to the Top, 92 U. COLO. L. REv. 377, 381–82 (2021).
191 Me. People’s All. & NRDC v. Mallinckrodt, Inc., 471
F.3d 277, 286 (1st Cir. 2006); see also Gaston Copper, 204 F.3d
at 163 (“Courts are not at liberty to write their own rules of
evidence for environmental standing . . . .”).
73a
C. Civil Penalty
The CAA provides that in a citizen suit, “[a]
penalty may be assessed for each day of violation.”192
The imposition of penalties is not mandatory, and we
review the district court’s determination of the
penalty amount “under the highly deferential abuseof-discretion standard.”193 We review underlying
factual findings for clear error.194
As stated above, the district court in this case
assessed a $19.95 million civil penalty, just 3.5
percent of the statutory maximum cap ($573.51
million), after considering the factors enumerated by
the CAA.195 Exxon challenges the amount awarded,
but its arguments are based on its erroneous standing
arguments. Specifically, Exxon asserts that the
district court’s calculation of the economic benefit
Exxon received from its noncompliance with the CAA
(one of the enumerated factors),196 was erroneous
because Plaintiffs did not introduce “evidence of any
economic benefit from delayed capital expenditures
that were necessary to correct the 40 days of
violations they correlated to their injuries-in-fact.” In
light of our holding above that Plaintiffs established
standing to pursue civil penalties for all of their
claims (not just 40 days of violations), Exxon’s
argument is unavailing.
192
42 U.S.C. § 7413(e)(2).
193
ETCL I, 824 F.3d at 525 (internal quotation marks and
citations omitted).
194
Id. (citations omitted).
195
2017 D. Ct. Op., 2017 WL 2331679, at *30–31.
196
42 U.S.C. § 7413(e)(1) (listing seven factors).
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Exxon further contends that the district court’s
calculation of the economic benefit of noncompliance
was distorted by “well-meaning but mistaken dictum”
in ETCL I. Specifically, Exxon argues that footnote
nineteen from ETCL I is legally incorrect and should
be disavowed or overruled. In that footnote, we stated
that “in a case such as this where the violations are
extensive and varied,” the district court’s “inquiry
[regarding the economic benefit of noncompliance]
should center on whether the projects will ameliorate
the kinds of general problems that have resulted in at
least some of the permit violations upon which
Plaintiffs have sued.”197 Our statement was correct.
As Plaintiffs assert, the CAA itself does not require a
violation-by-violation determination of economic
benefit. It says a court must consider the “economic
benefit of noncompliance.”198 Notably, unlike the
seriousness and duration factors which use the word
“violation,” the economic benefit factor uses the word
“noncompliance.”199
As we noted in ETCL I, the economic benefit of
noncompliance “factor directs courts to consider the
financial benefit to the offender of delaying capital
expenditures and maintenance costs on pollutioncontrol equipment.”200 The district court valued
Exxon’s benefit of noncompliance at more than
fourteen million dollars ($11,746,234 at the time of
the expert’s report plus $61,066 per month after that)
197
ETCL I, 824 F.3d at 530 n.19.
198
42 U.S.C. § 7413(e)(1).
199
Id.
200 ETCL I, 824 F.3d at 527 (internal quotation marks and
citation omitted).
75a
because Exxon delayed implementation of four
emission-reducing projects mandated by a 2012
agreement between Exxon and state regulators.201
The court determined that Plaintiffs demonstrated
that the four improvement projects were “necessary
to correct the violations at issue in this suit.”202 Those
projects included: (1) a plant automation venture
intended to help identify potential events, allowing
proactive response; (2) a flare system monitoring/
minimization project intended to more effectively
monitor and troubleshoot refinery flares; (3) a
simulators project intended to improve operator
training and competency, to reduce frequency and
severity of emissions events; and (4) enhanced
fugitive emissions monitoring using infrared
technology to locate leaks.203
The district court’s conclusion that the projects
would have reduced the frequency of the violations at
issue was not clear error. The projects represent “an
effort to reduce emissions and unauthorized
emissions events” at the Baytown Complex.204 Such
unauthorized emissions are the heart of the violations
alleged in this suit.205
201
2017 D. Ct. Op., 2017 WL 2331679, at *28.
202
Id. at *28 (internal quotation marks omitted).
203
ETCL I, 824 F.3d at 528 n.15.
204
2017 D. Ct. Op., 2017 WL 2331679, at *28 (internal
citation and quotation marks omitted).
205
The district court walked through how the four
improvement projects would reduce the types of violations
included in Counts I-V. For example, “the Fuels North Flare
System Monitoring/Minimization Project” is intended to reduce
flaring at the Baytown refinery and the “Enhanced Fugitive
76a
Exxon additionally argues that the four emissionreducing projects, whether characterized as
“voluntary” or implemented because of a government
enforcement order, should not be considered in
economic benefit determinations. We expressly
rejected this argument in ETCL I.
Specifically, the fact that Exxon must pay to bring
its Complex into compliance does not excuse its
history of noncompliance.206
After weighing the other statutory factors, the
district court applied a fifty percent multiplier to the
economic benefit calculation, and then subtracted the
amount of penalties Exxon had already paid to the
State of Texas for some of the violations. Applying the
highly deferential abuse-of-discretion standard, we
would AFFIRM the district court’s civil penalty
assessment of $19.95 million against Exxon in this
case.
III. CONCLUSION
For the foregoing reasons, we would AFFIRM the
district court’s judgment based on its 2017 revised
findings of fact and conclusions of law.
Emissions Monitoring Project” is intended to help locate and
repair VOC and HRVOC leaks. See id.
206 ETCL I, 824 F.3d at 529 n.18 (noting that Exxon’s
“argument about compliance efforts ‘negating’ economic benefit
is precisely the argument that various courts have rejected
under the economic benefit factor”).
77a
JAMES C. HO, Circuit Judge, in support of
dismissing rehearing en banc as improvidently
granted:
Had I been a member of the three-judge panel in
this case, I would have voted to vacate and remand.
But because no one on the en banc court has been able
to garner a majority in support of their views, I would
dismiss the order granting rehearing en banc as
improvidently granted, and reinstate the prior
decisions of the three-judge panel. I explain each of
these conclusions below. Cf. Moyle v. United States,
603 U.S. _ (2024) (per curiam order dismissing
certiorari as improvidently granted, followed by 47
pages of separate opinions from various Justices).
I.
In Friends of the Earth, Inc. v. Laidlaw
Environmental Services (TOC), Inc., 528 U.S. 167
(2000), the Supreme Court held that citizens may
have Article III standing to bring suit seeking civil
penalties under the Clean Air Act, even though any
civil penalties won by the plaintiffs aren’t actually
paid to the plaintiffs—they’re paid to the United
States Treasury.
Laidlaw justified this curious conclusion by
analogizing civil penalties to injunctions. Id. at 174.
Like injunctions, the Court theorized, civil penalties
“deter future violations and thereby redress the
injuries that prompted a citizen suitor to commence
litigation.” Id. The Court then concluded that citizen
suits satisfy the redressability prong of standing
78a
because the injury being remedied is prospective, not
retrospective, in nature. See id. at 174, 185–87.1
Justice Scalia has powerfully written that
Laidlaw is wrong. As his dissent explained, “a
plaintiff’s desire to benefit from the deterrent effect of
a public penalty for past conduct can never suffice to
1 And of course, the Court has long treated the traceability
and redressability prongs of Article III standing as “two facets of
a single causation requirement”—after all, “the former examines
the causal connection between the assertedly unlawful conduct
and the alleged injury, whereas the latter examines the causal
connection between the alleged injury and the judicial relief
requested.” Allen v. Wright, 468 U.S. 737, 753 n.19 (1984)
(quotations omitted). See also FDA v. All. for Hippocratic Med.,
602 U.S. 367, 380 (2024) (“The second and third standing
requirements—causation and redressability—are often ‘flip
sides of the same coin.’”) (quoting Sprint Commc’ns Co. v. APCC
Servs., Inc., 554 U.S. 269, 288 (2008)). Not surprisingly, then, the
Court has repeatedly instructed us to look at the same “injury”
when examining the traceability and redressability elements of
Article III standing. See, e.g., id. at 381 (“If a defendant’s action
causes an injury, enjoining the action or awarding damages for
the action will typically redress that injury.”); TransUnion LLC
v. Ramirez, 594 U.S. 413, 423 (2021) (“[A] plaintiff must show (i)
that he suffered an injury in fact that is concrete, particularized,
and actual or imminent; (ii) that the injury was likely caused by
the defendant; and (iii) that the injury would likely be redressed
by judicial relief.”); Uzuegbunam v. Preczewski, 592 U.S. 279,
282 (2021) (“To demonstrate standing, the plaintiff must not
only establish an injury that is fairly traceable to the challenged
conduct but must also seek a remedy that redresses that
injury.”). See also Duke Power Co. v. Carolina Env’t Study Grp.,
Inc., 438 U.S. 59, 74 (1978) (“The more difficult step in the
standing inquiry is establishing that these injuries ‘fairly can be
traced to the challenged action of the defendant,’ or put
otherwise, that the exercise of the Court’s remedial powers
would redress the claimed injuries.”) (citation omitted).
79a
establish a case or controversy of the sort known to
our law.” Id. at 205 (Scalia, J., dissenting).
I agree with Justice Scalia. And I’m far from alone.
Many circuit judges have criticized Laidlaw—while
acknowledging our duty to follow it. Judge Luttig
bemoaned the “significant change in environmental
standing doctrine worked by . . . Laidlaw,” and said
that it would be a “fiction” to claim that Laidlaw is
consistent with “the fabric of standing jurisprudence.”
Friends of the Earth, Inc. v. Gaston Copper Recycling
Corp., 204 F.3d 149, 164– 65 (4th Cir. 2000) (Luttig,
J., concurring in the judgment). Judge Niemeyer
noted that “Laidlaw represents a sea change in
constitutional standing principles”—and he plainly
didn’t mean it as a compliment. Id. at 164 (Niemeyer,
J., concurring in the judgment). Judge Hamilton
wrote that Laidlaw “unnecessarily opened the
standing floodgates, rendering our standing inquiry ‘a
sham.’” Id. at 165 (Hamilton, J., concurring in the
judgment) (quoting 528 U.S. at 201 (Scalia, J.,
dissenting)).
But we’re bound by Supreme Court precedents,
not dissents. Just as we’re not truly committing
ourselves to the text unless we follow it even when it
hurts, we aren’t truly faithful to Supreme Court
precedent unless we follow it even when it hurts. See,
e.g., Lefebure v. D’Aquilla, 15 F.4th 650, 663 (5th Cir.
2021). It does not matter what kind of case it is, or
who the parties are. And it certainly does not vary
based on whether or not we agree with that precedent.
See, e.g., United States v. Rahimi, 117 F.4th 331, 334
(5th Cir. 2024) (Ho, J., concurring). Nothing is more
fundamental to our work as judges than putting aside
our personal views, applying neutral principles to
80a
every case in an even-handed manner, and letting the
chips fall as they may.
So we’re duty-bound to follow Laidlaw—whether
we agree with it or not. But even under Laidlaw, I
would vacate and remand to ensure that Defendants
have full and fair opportunity to rebut the
presumption of traceability established by our court
in Sierra Club, Lone Star Chapter v. Cedar Point Oil
Co., 73 F.3d 546 (5th Cir. 1996).
It’s well established that Article III standing
does not require a plaintiff to trace his injury to
the defendant’s conduct with scientific certainty.
Plaintiffs may establish that connection by
reasonable inference. See, e.g., TransUnion, 594 U.S.
at 437 (“[F]or [libel and slander per se], publication is
generally presumed to cause a harm, albeit not a
readily quantifiable harm. As Spokeo noted, ‘the law
has long permitted recovery by certain tort victims
even if their harms may be difficult to prove or
measure.’”) (quoting Spokeo, Inc. v. Robins, 578 U.S.
330, 341 (2016)).
Imagine, for example, that two hunters
negligently fire their weapons within the geographic
proximity of an innocent bystander. Only one shot
actually strikes the bystander. But the plaintiff can’t
identify which hunter fired that shot. So the plaintiff
can show that it must have been fired by one of the
two hunters. But he can’t prove which one fired the
shot. This lack of evidentiary certainty doesn’t
prevent the plaintiff from establishing liability. See,
e.g., Summers P. Tice, 199 P.2d 1, 4 (Cal. 1948)
(holding that “the burden of proof” should be “shifted
to defendants” and noting that “[o]rdinarily
defendants are in a far better position to offer
81a
evidence to determine which one caused the injury”).
See also RESTATEMENT (SECOND) OF TORTS § 433B(3)
(1965) (“Where the conduct of two or more actors is
tortious, and it is proved that harm has been caused
to the plaintiff by only one of them, but there is
uncertainty as to which one has caused it, the burden
is upon each such actor to prove that he has not
caused the harm.”); RESTATEMENT (THIRD) OF TORTS:
PHYS. & EMOT. HARM § 28(b) (2010) (“When the
plaintiff sues all of multiple actors and proves that
each engaged in tortious conduct that exposed the
plaintiff to a risk of harm and that the tortious
conduct of one or more of them caused the plaintiff’s
harm but the plaintiff cannot reasonably be expected
to prove which actor or actors caused the harm, the
burden of proof, including both production and
persuasion, on factual causation is shifted to the
defendants.”).
Similar causation principles animate Article III
standing. See, e.g., TransUnion, 594 U.S. at 424
(“[H]istory and tradition offer a meaningful guide to
the types of cases that Article III empowers federal
courts to consider.”) (quotations omitted); All. for
Hippocratic Med., 602 U.S. at 384 (analogizing
“causation in standing law” to “causation in tort law”).
As then-Judge Alito observed, “Article III standing
demands ‘a causal relationship,’ but neither the
Supreme Court nor our Court has ever held that butfor causation is always needed. . . . A classic example
in tort law is the hypothetical case in which a person
is simultaneously hit with two lethal gun shots fired
at the same time by two hunters. But-for causation
leads to the absurd conclusion that neither shot was
82a
the cause of the victim’s demise.” Khodara Env’t, Inc.
v. Blakey, 376 F.3d 187, 195 (3rd Cir. 2004).
Along similar lines, Cedar Point permits plaintiffs
to establish a presumption of traceability by showing
that (1) the defendant discharged a pollutant in
excess of its permit limits; (2) the discharge occurred
in the geographic proximity of the plaintiff; and (3)
the pollutant causes or contributes to the kinds of
injuries alleged by the plaintiffs. 73 F.3d at 557.
That said, it’s only a presumption. A defendant is
entitled to present any and all evidence rebutting the
presumption. See, e.g., Utah Physicians for a Healthy
Env’t v. Diesel Power Gear, LLC, 21 F.4th 1229, 1249
(10th Cir. 2021) (noting that an inference based on
geographic nexus is “subject, of course, to rebuttal by
contrary evidence”). Based on my review of this case,
I am concerned that Defendants have not been
afforded the opportunity here.2
2 Judge Jones claims that “[n]o case has ever before flipped
the burden of jurisdictional proof onto the defendant.” This
hyperbole badly misunderstands how legal presumptions
operate. To begin with, it should go without saying that plaintiffs
always have the burden to prove why they are entitled to a
particular legal presumption—like our court’s Cedar Point
presumption—in the first instance. Moreover, the Supreme
Court has welcomed the use of legal presumptions in
determining Article III standing. “[H]istory and tradition offer a
meaningful guide to the types of cases that Article III empowers
federal courts to consider.” TransUnion, 594 U.S. at 424 (quoting
Sprint, 554 U.S. at 274). That includes, for example, the legal
presumptions that establish injury and standing in various tort
contexts. See, e.g., id. at 437 (for libel and slander per se,
“publication is generally presumed to cause a harm”). We’ve also
applied rebuttable presumptions in civil rights cases. See, e.g.,
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)
(“The complainant in a Title VII trial must carry the initial
83a
II.
Accordingly, had I been a member of the threejudge panel in this case, I would have voted to vacate
and remand. I recognize, however, that I have been
unable to garner an en banc majority for my views.
Nor has any other member of the court, as today’s
splintered vote amply demonstrates.
Splintered decisions disserve the public, because
they offer no guidance as to the law of our circuit.
Accordingly, I would dismiss the order granting
rehearing en banc as improvidently granted. See, e.g.,
Helix Energy Sols. Grp., Inc. v. Hewitt, 598 U.S. 39,
62 (2023) (Gorsuch, J., dissenting) (dissenting from
the judgment of affirmance on the ground that Justice
Gorsuch
would’ve
dismissed
the
case
as
improvidently granted instead).
burden under the statute of establishing a prima facie case of
racial discrimination. . . . The burden then must shift to the
employer to articulate some legitimate, nondiscriminatory
reason for the employee’s rejection.”). And in securities fraud
cases, too. See, e.g., Goldman Sachs Grp., Inc. v. Ark. Tchr. Ret.
Sys., 594 U.S. 113, 118–19 (2021) (discussing the Basic
presumption, which allows securities fraud plaintiffs to “invoke
a rebuttable presumption of reliance based on the fraud-on-themarket theory,” but may be rebutted if defendants can show that
their alleged misrepresentations “did not actually affect the
market price of the stock”) (quotations omitted). If all of these
rebuttable presumptions are valid—and they surely are, under
decades of Supreme Court precedent—I don’t see why the Cedar
Point presumption is somehow invalid.
Tellingly, neither Defendants nor the dissenters call for
Cedar Point to be overturned. Nor do they engage with Judge
Alito’s discussion of standing and the classic two hunters
hypothetical in Khodara, 376 F.3d at 195, that I discussed above.
84a
I recognize that the result of my position is that
the en banc court today will affirm without issuing a
precedential ruling on standing.3
My hope is that our inability to issue a
precedential decision today will turn out to be a
blessing, rather than a curse. The issues presented
in—but left unresolved by—this en banc proceeding
can be addressed de novo in a future proceeding before
a three-judge panel. See, e.g., Hardin v. ATF, 65 F.4th
895 (6th Cir. 2023) (deciding issue left unresolved in
Gun Owners of Am., Inc. P. Garland, 19 F.4th 890
(6th Cir. 2021) (en banc)).
Alternatively, the Supreme Court can grant
certiorari. Indeed, only the Court can definitively
resolve these issues by revisiting and reconsidering
Laidlaw in light of Justice Scalia’s persuasive dissent.
* * *
In response, Judge Oldham’s dissent opens by
invoking Roman, ecclesiastical, and other historical
practices, in a quixotic effort to prove that dismissal
of rehearing en banc as improvidently granted
somehow offends “millennia of legal tradition.”
I like history too, but nothing in his historical
gesturing remotely demonstrates how justice or
3 Judge
Oldham points out that, by dismissing as
improvidently granted, I am “reach[ing] a very different
judgment” from the per curiam, which affirms. It’s not clear to
me why he thinks that helps his cause. When eight judges would
affirm, eight judges oppose affirmance, and one would dismiss as
improvidently granted, then our court lacks a sufficient majority
to do anything other than affirm—as Judge Richman’s dissent
appears to acknowledge.
85a
tradition requires appeal before seventeen judges
rather than three.
Tellingly, Judge Richman declines to join Judge
Oldham, and instead authors her own separate
dissent. She also declines to join section I of Judge
Jones’s dissent. And her dissent makes clear why.
Judge Richman acknowledges that courts of
appeals can and do dismiss rehearing en banc as
improvidently granted. As she puts it: “Could a
majority of the en banc court have decided that we
should not have granted en banc review in this case?
I think the answer to that question is ‘yes.’ . . . It must
reinstate the opinion and judgment of the panel,
which we have done on at least two occasions and
which the en banc court has the authority to do under
our rules.”
I appreciate Judge Richman’s candor. But don’t
miss the irony here: Rather than engage my sincere
concern that splintered decisions disserve the public
and warrant dismissal as improvidently granted, the
dissenters respond by issuing a series of—splintered
dissents.
Judge Richman is, of course, correct about
dismissal as improvidently granted. To begin with,
the Supreme Court regularly dismisses certiorari as
improvidently granted, despite the absence of any
rule authorizing such practice. And if it’s proper to
dismiss certiorari as improvidently granted, it should
likewise be proper to dismiss rehearing en banc as
improvidently granted. No rule of appellate procedure
prohibits such dismissals. To the contrary, “a court of
appeals may—to expedite its decision or for other
good cause—suspend any provision of these rules in a
particular case.” FED. R. APP. PROC. 2(a).
86a
As then-Judge Scalia and others have observed,
rehearing en banc, like certiorari, is an entirely
discretionary exercise of “second-level appellate
review.” See Church of Scientology of Cal. v. IRS, 792
F.2d 153, 155 n.1 (D.C. Cir. 1986) (en banc)
(analogizing en banc rehearing to certiorari, noting
that both situations constitute a “second-level
appellate review,” as the court “has before it the full
text of a proposed panel opinion”); see also, e.g., Irving
v. United States, 162 F.3d 154, 161 n.7 (1st Cir. 1998)
(“rehearing en banc is the functional equivalent of . .
. certiorari by the Supreme Court”); Young v. Borders,
850 F.3d 1274, 1287 (11th Cir. 2017) (Hull, J.,
concurring in the denial of rehearing en banc) (“en
banc rehearing is similar to . . . certiorari”) (quoting
Riley v. Camp, 130 F.3d 958, 983 n.7 (11th Cir. 1997)
(Birch, J., concurring in the denial of rehearing en
banc)).
Our sister circuits have thus had no trouble
following Supreme Court practice in this regard. See,
e.g., Aposhian v. Wilkinson, 989 F.3d 890, 891 (10th
Cir. 2021) (vacating order granting rehearing en banc
as improvidently granted); Gonzales v. McKune, 279
F.3d 922, 924 (10th Cir. 2002) (same); United States
v. Collins, 462 F.2d 792, 802 (2nd Cir. 1972) (same).
Likewise, our court has repeatedly granted
rehearing en banc, only to later reinstate portions
of the panel opinion. See, e.g., Jimenez v. Wood
County, 660 F.3d 841, 844 n.1 (5th Cir. 2011)
(en banc) (reinstating portions of panel opinion after
vacating them on grant of rehearing en banc); Soffar
v. Cockrell, 300 F.3d 588, 590, 590 n.1 (5th Cir. 2002)
(en banc) (same); Equilease Corp. v. M/V Sampson,
87a
793 F.2d 598, 600 n.1 (5th Cir. 1986) (en banc)
(same).4
Judge Oldham is unable to cite any actual case law
or authority in response. What he offers instead is an
extended discourse on the “ancient writ” of certiorari.
But he ultimately admits that it does “nothing” for
his argument: “What does any of this have to do with
courts of appeals and en banc rehearing? . . . The
answer is: Nothing.”
Readers might be surprised by this admission. But
it’s true: All that history does “nothing” to rebut thenJudge Scalia and countless other circuit judges who
embrace the common sense notion that rehearing en
banc is obviously the “functional equivalent” to the
“second-level appellate review” provided by certiorari.
Finally, Judge Oldham accuses me of favoring
“different and inconsistent judgments,” complete with
chart. But that’s always true whenever a member of
this court disagrees with a panel decision, but sees no
need to take the case en banc. I’m sure that occurs
every day on the courts of appeals. Every member of
this court has at one time or another disagreed with a
panel in a particular case, but declined to seek
rehearing en banc.
So there’s no need for a fainting couch. The
dissenters only feign incredulity—they don’t really
mean it. Even Judge Jones is only able to say that she
is “at best unclear” as to the propriety of dismissing
rehearing en banc as improvidently granted.
4 So it’s a bit odd when Judge Oldham claims that I “cannot
cite a single example of anything other than a writ of certiorari
being dismissed as improvidently granted.” I cite a number of
examples above. So does Judge Richman’s dissent.
88a
III.
This is not the first time that members of the court
have disagreed about what issues should or should
not be decided by our en banc court. See, e.g., United
States v. Abbott, 110 F.4th 700 (5th Cir. 2024). It’s
time for a fulsome response. So I state here some of
my governing principles regarding which cases and
which issues should be decided en banc, and which
should be left to a three-judge panel.
A.
Rehearing en banc is expressly disfavored under
our rules. See FED. R. APP. PROC. 40(a); 5TH CIR. R.
40.2.1. It’s reserved for matters of “exceptional
importance,” or resolving conflicts in our law. See
FED. R. APP. PROC. 40(b)(2).
So what’s exceptionally important? Different
judges will naturally have different views on the
importance of different issues. I respect the right of
my colleagues to come to different conclusions—as
they all most certainly do—as to which issues warrant
en banc review.
But as for my own views, I’d focus our limited en
banc resources on advancing the rule of law where we
need it the most—protecting our national borders and
protecting our constitutional rights, to name two
premier examples. But see, e.g., Young Conservatives
of Tex. Found. v. Smatresk, 78 F.4th 159 (5th Cir.
2023) (declining to decide whether federal law
permits 90% tuition discounts for illegal aliens);
Abbott, 110 F.4th 700 (declining to decide whether
federal courts have jurisdiction to enjoin states from
defending themselves against invasion); Gonzalez v.
Trevino, 60 F.4th 906 (5th Cir. 2023) (declining to
decide whether government officials can weaponize
89a
the criminal justice system against citizens who hold
disfavored political views); Mayfield v. Butler Snow,
78 F.4th 796 (5th Cir. 2023) (same).5
I get that members of this court disagree over
which matters warrant en banc attention. What I
would have trouble understanding is how a judge
could dismiss all of the constitutional cases I
identified above as unworthy of en banc—yet treat en
banc as indisputably required here. It seems entirely
backwards to demand en banc to decide only the
amount of one judgment affecting one company—
while refusing en banc when the constitutional
interests of every citizen in our circuit is at stake. Cf.
MCR Oil Tools, L.L.C. v. U.S. Dep’t of Transp., 102
F.4th 326, 326 (5th Cir. 2024) (Ho, J., concurring) (we
should not favor cases that only implicate “the
commercial interests of a single Texas business” over
those affecting “the innocence of every child in
Texas”); MATTHEW 23:24. After all, without a majority
opinion announcing the law of the circuit, all we’re left
with here is a parochial disagreement over how much
one company must pay in civil penalties. That’s no
doubt important to the parties in the case. But every
5 See also, e.g., Zimmerman v. City of Austin, 888 F.3d 163
(5th Cir. 2018) (declining to decide whether citizens have the
right to spend more than $350 in political advocacy in local
elections); Landor v. La. Dep’t of Corrs. and Pub. Safety, 93 F.4th
259 (5th Cir. 2024) (declining to decide what remedies courts
may issue in religious liberty cases); McRaney v. N. Am. Mission
Bd. of So. Baptist Convention, 980 F.3d 1066 (5th Cir. 2020)
(declining to decide whether courts may interfere with internal
disputes about church leadership); Book People, Inc. v. Wong, 98
F.4th 657 (5th Cir. 2024) (declining to decide whether states may
take certain measures to protect the innocence of children from
sexually explicit materials in public school libraries).
90a
case is important to the parties in the case. And the
parties here have already received not one but
multiple rounds of appeals.
B.
The amount in controversy here is substantial.
But that’s never been enough by itself to justify en
banc. Otherwise, we would’ve granted en banc in
cases like BMC Software, Inc. P. IBM Corp., No. 2220463 (5th Cir. Sep. 17, 2024) (unanimously denying
rehearing en banc in a case involving a judgment of
over $1.6 billion). See also, e.g., United States ex rel.
Harman P. Trinity Industries Inc., No. 15-41172 (5th
Cir. Nov. 14, 2017) (unanimously denying rehearing
en banc in a case involving a judgment of over half a
billion dollars).
In the cases identified above (and countless others,
no doubt), the corporate defendant prevailed before
the three-judge panel, and it was the plaintiff who
sought en banc review. Whereas here, by contrast, it’s
the business defendant who lost and seeks rehearing
en banc.
But that shouldn’t make any difference to our
analysis. The hallmark of our judiciary is that it’s
supposed to be available to everyone on equal terms.
“Nothing is more corrosive to public confidence in our
[legal] system than the perception that there are two
different legal standards—one for the powerful, the
popular, and the well-connected, and another for
everyone else.” United States P. Taffaro, 919 F.3d 947,
949 (5th Cir. 2019) (Ho, J., concurring in the
judgment).
We must not treat business interests more
favorably than other litigants. There should be no
“major corporations” doctrine in our judiciary. See,
91a
e.g., ANTONIN SCALIA & BRYAN A. GARNER, READING
LAW: THE INTERPRETATION OF LEGAL TEXTS 352–53
(2012) (“‘Is it good for business?’ . . . Questions like
these are appropriately asked by those who write the
laws, but not by those who apply them.”). But compare
Sambrano P. United Airlines, Inc., 45 F.4th 877, 882
(5th Cir. 2022) (Ho, J., concurring in denial of
rehearing en banc) (“[W]hen corporations violate the
law, courts should hold them accountable, no less and
no more than individuals.”); Hewitt v. Helix Energy
Sols. Grp., 15 F.4th 289, 303–4 (5th Cir. 2021) (Ho, J.,
concurring); with id. at 323 (Wiener, J., dissenting)
(expressing concern that “a vital industry in our
region and one which provides more than 400,000
direct jobs, will suffer needlessly and excessively” if
certain labor regulations are enforced); Sambrano v.
United Airlines, Inc., 2022 WL 486610, *10 (5th Cir.
Feb. 17, 2022) (Smith, J., dissenting) (criticizing
majority’s “alacrity to play CEO of a multinational
corporation” by insisting on enforcing its reading of
Title VII of the Civil Rights Act).
The dissenters deny that they’re favoring
corporate litigants over ordinary citizens. But they
find it “strange” that we would not grant en banc
review just to protect “one company” from paying civil
penalties. What I find “strange” is the notion that our
legal system should never penalize a corporation. See,
e.g., Press Release, Attorney General Ken Paxton
Secures Over $100 Million in Environmental
Penalties From Company Responsible for 2019
Chemical Manufacturing Plant Explosion, Nov. 22,
2024 (“In Texas, we believe in ensuring all industries
operate safely and being responsible stewards of our
environment . . . . These penalties send a clear
message: operate responsibly to protect the health
92a
and safety of your fellow Texans, or face the
consequences.”).
The dissenters also contend that they’re just
standing up for “any company beleaguered by overregulation.” I’ve long voiced my own concerns about
over-regulation.6
But this en banc proceeding is about Article III
standing. And standing is supposed to be “orthogonal
to merits”—not wielded in service of anyone’s
particular substantive legal agenda. Jackson Mun.
Airport Auth. v. Harkins, 98 F.4th 144, 148 (5th Cir.
2024) (Ho, J., concurring).
Justice Alito reminds us that “Article III standing
is . . . cheapened when the rules are not evenhandedly
applied.” Murthy v. Missouri, 603 U.S. 43, 98 (2024)
(Alito, J., dissenting). And Justice Thomas warns us
not to distort standing doctrines to favor certain
litigants. See, e.g., TransUnion, 594 U.S. at 459 n.9
(Thomas, J., dissenting) (businesses may be worse off
if courts construe standing too restrictively); see also,
6 See, e.g., Zimmerman, 888 F.3d at 170 (Ho, J., dissenting
from denial of rehearing en banc) (“When government grows
larger, when regulators pick more and more economic winners
and losers, participation in the political process ceases to be
merely a citizen’s prerogative—it becomes a human necessity.
This is the inevitable result of a government that would be
unrecognizable to our Founders.”); Consumers’ Research v.
Consumer Product Safety Comm’n, 98 F.4th 646, 650 (5th Cir.
2024) (Ho, J., dissenting from denial of rehearing en banc)
(“There is no accountability to the people when so much of our
government is so deeply insulated from those we elect. Restoring
our democracy requires regaining control of the bureaucracy.
The right to vote means nothing if we allow the real work of
lawmaking to be exercised by agency bureaucrats.”) (cleaned
up).
93a
e.g., Heather Elliott, Standing Lessons: What We Can
Learn When Conservative Plaintiffs Lose Under
Article III Standing Doctrine, 87 INd. L.J. 551, 557
(2012) (“restrictive standing requirements” were
historically used to “preserv[e] and enshrin[e] the
liberal New Deal administrative state”) (citing
scholars). (Recall that Chevron was once believed to
be a powerful tool against over-regulation, too. See,
e.g., Antonin Scalia, Regulatory Reform: The Game
Has Changed, REGULATION 13, 14 (Jan./Feb. 1981).)
Moreover, even if we were to take the dissenters’
corporate battle cry at face value: Why no such outcry
on behalf of ordinary citizens beleaguered by illegal
immigration? Or by a weaponized criminal justice
sy
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