Amicus Curiae Brief — ExxonMobil Corporation, et al., Petitioners v. Environment Texas Citizen Lobby, Incorporated, et al.
Supreme Court briefApr 16, 2025
Ask Donna
What actually matters in this document.
Text
No. 24-982
IN THE
Supreme Court of the United States
————
EXXONMOBIL CORPORATION, ET AL.,
Petitioners,
v.
ENVIRONMENT TEXAS CITIZEN LOBBY, INC., ET AL.,
Respondents.
————
On Petition for Writ of Certiorari
to the United States Court of Appeals
for the Fifth Circuit
————
BRIEF OF AMICI CURIAE CHAMBER OF
COMMERCE OF THE UNITED STATES OF
AMERICA, AMERICAN CHEMISTRY COUNCIL,
AMERICAN FARM BUREAU FEDERATION,
AMERICAN FUEL & PETROCHEMICAL
MANUFACTURERS, NATIONAL ASSOCIATION OF
MANUFACTURERS, NATIONAL MINING
ASSOCIATION, TEXAS CHEMICAL COUNCIL,
AND TEXAS OIL & GAS ASSOCIATION
SUPPORTING PETITIONERS
————
ANDREW R. VARCOE
AARON M. STREETT
STEPHANIE A. MALONEY
Counsel of Record
U.S. CHAMBER LITIGAMATTHEW KURYLA
TION CENTER
HARRISON REBACK
1615 H Street, NW
ELISABETH C. BUTLER
Washington, D.C. 20062
BAKER BOTTS L.L.P.
(202) 463-5337
910 Louisiana Street
Houston, TX 77002
Counsel for Amicus Cu(713) 229-1234
riae Chamber of Comaaron.streett@bakerbotts.com
merce of the United
States of America
Counsel for Amici Curiae
(additional counsel listed on inside cover)
WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002
ELLIOTT ZENICK
AMERICAN CHEMISTRY
COUNCIL
700 2nd Street, NE
Washington, D.C. 20002
(202) 249-6744
Counsel for Amicus Curiae
American Chemistry Council
ELLEN STEEN
TRAVIS CUSHMAN
AMERICAN FARM BUREAU
FEDERATION
600 Maryland Ave., SW, Suite
1000W
Washington, D.C. 20024
(202) 406-3618
Counsel for Amicus Curiae
American Farm Bureau Federation
RICHARD S. MOSKOWITZ
TYLER KUBIK
AMERICAN FUEL & PETROCHEMICAL MANUFACTURERS
1800 M Street, NW, Suite
900N
Washington, D.C. 20036
(202) 457-0480
Counsel for Amicus Curiae
American Fuel & Petrochemical Manufacturers
ERICA KLENICKI
MICHAEL A. TILGHMAN II
NATIONAL ASSOCIATION OF
MANUFACTURERS
733 10th Street, NW, Suite
700
Washington, D.C. 20001
(202) 637-3100
Counsel for Amicus Curiae
National Association of Manufacturers
TAWNY BRIDGEFORD
NATIONAL MINING ASSOCIATION
101 Constitution Avenue, NW,
Suite 500E
Washington, D.C. 20001
(202) 463-2600
Counsel for Amicus Curiae
National Mining Association
i
TABLE OF CONTENTS
Page
Interest of Amici Curiae ..................................................... 1
Summary of Argument ........................................................ 5
Argument .............................................................................. 7
I.
The Fifth Circuit Departed From Article
III’s Limits On Environmental Citizen
Suits ......................................................................... 7
A.
Citizen suits were designed to
supplement, not supplant, agency
enforcement of environmental statutes ..... 8
B.
Citizen-suit plaintiffs must
demonstrate Article III standing for
each claim ...................................................... 9
C.
The Fifth Circuit’s per se rules are
insufficient to ensure that citizen-suit
plaintiffs have standing ............................. 11
D.
Per se standing rules convert citizen
suits from discrete cases and
controversies into sprawling
regulatory-enforcement actions ............... 17
Conclusion ........................................................................... 22
ii
TABLE OF AUTHORITIES
Page(s)
CASES
Blum v. Yaretsky,
457 U.S. 991 (1982) ....................................................... 13
Conservation Law Found., Inc. v. Acad. Express, LLC,
129 F.4th 78 (1st Cir. 2025) .......................................... 18
DaimlerChrysler Corp. v. Cuno,
547 U.S. 332 (2006) ....................................................... 13
Dep’t of Transp. v. Ass’n of Am. R.Rs.
575 U.S. 43, 62 (2015) ................................................... 18
Friends of the Earth, Inc. v. Laidlaw Env’t Servs.,
528 U.S. 167 (2000) ........................................ 9, 11, 18, 20
Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found.,
Inc.,
484 U.S. 49 (1987) ........................................................... 8
Lujan v. Defs. of Wildlife,
504 U.S. 555 (1992) ..................................................10, 17
Ohio v. EPA,
603 U.S. 279 (2024) ......................................................... 8
Public Int. Rsch. Grp. of N.J., Inc. v. Powell Duffryn
Terminals Inc.,
913 F.2d 64 (3d Cir. 1990) ............................................ 18
iii
TABLE OF AUTHORITIES – Continued
Page
Seila Law LLC v. CFPB,
591 U.S. 197 (2020) ....................................................... 18
Sierra Club, Lone Star Chapter v. Cedar Point Oil Co.,
73 F.3d 546 (5th Cir. 1996) ................................ 11, 12, 18
Spokeo, Inc. v. Robins,
578 U.S. 330 (2016) ....................................................... 10
Stringer v. Town of Jonesboro,
986 F.3d 502 (5th Cir. 2021) ........................................... 8
TransUnion LLC v. Ramirez,
594 U.S. 413 (2021) ...................... 9, 10, 13, 14, 16, 17, 18
United States ex rel. Polansky v. Exec. Health Res., Inc.,
599 U.S. 419 (2023) ....................................................... 20
Wisconsin v. EPA,
938 F.3d 303 (D.C. Cir. 2019) ...................................... 16
STATUTES
33 U.S.C. § 1319 .................................................................... 9
33 U.S.C. § 1365 .................................................................6, 8
42 U.S.C. § 7413 .................................................................... 9
42 U.S.C. § 7604 .................................................................6, 8
REGULATIONS
30 Tex. Admin. Code § 122.10(5) ....................................... 22
iv
TABLE OF AUTHORITIES – Continued
Page
30 Tex. Admin. Code § 122.145(2) ..................................... 22
30 Tex. Admin. Code § 319.1 ............................................. 22
40 C.F.R. § 19.4 ..................................................................... 6
ARTICLES
Abell, Ignoring the Trees for the Forests: How the
Citizen Suit Provision of the Clean Water Act
Violates the Constitution’s Separation of Powers
Principle, 81 VA. L. REV. 1957 (1995) ........................ 19
Boyer & Meidinger, Privatizing Regulatory
Enforcement: A Preliminary Assessment of Citizen
Suits Under Federal Environmental Laws, 34 BUFF.
L. REV. 833 (1985)....................................................20, 21
Grove, Standing as an Article II Nondelegation
Doctrine, 11 U. PA. J. CONST. L. 781 (2009) ............... 19
Lang, Citizens’ Environmental Lawsuits, 47 TEX. ENV’T
L.J. 17 (2017) ................................................................. 21
Pierce, Agency Authority to Define the Scope of Private
Rights of Action, 48 ADMIN. L. REV. 1 (1996) ........... 19
Zinn, Policing Environmental Regulatory Enforcement:
Cooperation, Capture, and Citizen Suits, 21 STAN.
ENVTL. L.J. 81 (2002) ................................................... 20
v
TABLE OF AUTHORITIES – Continued
Page
WEBSITES
U.S. Energy Information Administration, Number and
Capacity of Petroleum Refineries (June 16, 2024) ... 21
IN THE
Supreme Court of the United States
————
EXXONMOBIL CORPORATION, ET AL.,
Petitioners,
v.
ENVIRONMENT TEXAS CITIZEN LOBBY, INC., ET AL.,
Respondents.
————
On Petition for Writ of Certiorari
to the United States Court of Appeals
for the Fifth Circuit
————
BRIEF OF AMICI CURIAE CHAMBER OF
COMMERCE OF THE UNITED STATES OF
AMERICA, AMERICAN CHEMISTRY COUNCIL,
AMERICAN FARM BUREAU FEDERATION,
AMERICAN FUEL & PETROCHEMICAL
MANUFACTURERS, NATIONAL ASSOCIATION OF
MANUFACTURERS, NATIONAL MINING
ASSOCIATION, TEXAS CHEMICAL COUNCIL,
AND TEXAS OIL & GAS ASSOCIATION
SUPPORTING PETITIONERS
————
INTEREST OF AMICI CURIAE1
The Chamber of Commerce of the United States of
America is the world’s largest business federation. It
No counsel for any party authored this brief in whole or in part and
no entity or person, aside from amici, their members, or their counsel,
made any monetary contribution intended to fund the preparation or
submission of this brief. Amici’s counsel Baker Botts L.L.P. served
as counsel for ExxonMobil in the early stages of the district-court proceedings. On January 12, 2012, the district court granted Baker Botts’
motion to withdraw as counsel for ExxonMobil. Baker Botts has not
1
2
represents 300,000 direct members and indirectly represents the interests of more than three million companies
and professional organizations of every size, in every industry sector, and from every region of the country. An
important function of the Chamber is to represent the interests of its members in matters before Congress, the
Executive Branch, and the courts. To that end, the Chamber regularly files amicus curiae briefs in cases, like this
one, that raise issues of concern to the nation’s business
community.
The American Chemistry Council (“ACC”) represents
the leading companies engaged in the multibillion-dollar
business of chemistry. ACC members apply the science of
chemistry to make innovative products, technologies and
services that make people’s lives better, healthier and
safer. ACC is committed to improved environmental,
health, safety, and security performance through Responsible Care ®; common sense advocacy addressing major
public policy issues; and health and environmental research and product testing. ACC members and chemistry
companies are among the largest investors in research
and development, and are advancing products, processes
and technologies to address climate change, enhance air
and water quality, and progress toward a more sustainable, circular economy.
The American Farm Bureau Federation (“AFBF”)
was formed in 1919 and is the largest nonprofit general
farm organization in the United States. Representing
about six million member families in all fifty states and
Puerto Rico, AFBF’s members grow and raise every type
of agricultural crop and commodity produced in the
United States. Its mission is to protect, promote, and represent the business, economic, social, and educational
represented ExxonMobil in this matter in the 13 years since that withdrawal. All parties were timely notified of the intent to file this brief.
3
interests of American farmers and ranchers. To that end,
AFBF regularly participates in litigation, including as
amicus curiae in this and other courts.
The American Fuel & Petrochemical Manufacturers
(“AFPM”) is a national trade association whose members
comprise most U.S. refining and petrochemical manufacturing capacity. AFPM is the leading trade association
representing the makers of the fuels that keep us moving,
the manufacturers of the petrochemicals that are the essential building blocks for modern life, and the midstream
companies that get our feedstocks and products where
they need to go.
The National Association of Manufacturers (“NAM”)
is the largest manufacturing association in the United
States, representing small and large manufacturers in all
50 states and in every industrial sector. Manufacturing
employs nearly 13 million men and women, contributes
$2.93 trillion to the U.S. economy annually, has the largest
economic impact of any major sector, and accounts for
over half of private-sector research and development in
the Nation. The NAM is the voice of the manufacturing
community and the leading advocate for a policy agenda
that helps manufacturers compete in the global economy
and create jobs across the United States.
The National Mining Association (“NMA”), based in
Washington, DC, is a national trade association that
serves as the voice of the mining industry. The NMA represents over 250 members involved in every aspect of mining, from producers and equipment manufacturers to service providers. The NMA’s members produce most of
America’s coal, metals, and industrial and agricultural
minerals. America’s mining industry supplies the essential materials necessary for nearly every sector of our
economy—from technology and healthcare to energy,
transportation, infrastructure, and national security—all
4
delivered under world-leading environmental, safety, and
labor standards. The NMA works to ensure America has
secure and reliable supply chains, abundant and affordable energy, and the American-sourced materials necessary for U.S. manufacturing, national security, and economic security. A core mission of the NMA is working
with Congress and regulators to advocate for public policies that will help America fully and responsibly utilize its
vast natural resources. The NMA also has a long history
of representing the mining industry in front of the judiciary.
The Texas Chemical Council (“TCC”) is a statewide
trade association of chemical manufacturers in Texas.
TCC represents approximately 70 member companies
who own and operate over 200 manufacturing and research facilities across the state. The business of chemistry is a major economic engine in Texas and has manufactured vital products that sustain our quality of life in Texas
for nearly 100 years. The business of chemistry provides
employment for approximately 500,000 Texans. The products of chemistry are the state’s top non-energy export
with over $50 billion in state exports annually to customers
around the world.
The Texas Oil & Gas Association (“TXOGA”) is a
statewide trade association representing every facet of the
Texas oil and gas industry including small independents
and major producers. Collectively, the membership of
TXOGA produces approximately 90 percent of Texas’
crude oil and natural gas and operates the vast majority of
the state’s refineries and pipelines. In fiscal year 2024, the
Texas oil and natural gas industry supported over 490,000
direct jobs and paid $27.3 billion in state and local taxes
and state royalties, funding our state’s schools, roads and
first responders.
5
Like Petitioners, many of amici’s members are regulated under the Clean Air Act (“CAA”) and the Clean Water Act (“CWA”) by the Environmental Protection Agency
(“EPA”) and its state counterparts—including the Texas
Commission on Environmental Quality (“TCEQ”). As a
result, these members are subject to self-reporting requirements under state and federal law of the kind that
generated the reports on which the citizen-plaintiffs here
relied to show violations of the CAA. The Fifth Circuit’s
conception of standing, along with similarly relaxed rules
from other circuits, would vastly expand the ability of
plaintiffs to bring citizen suits beyond the bounds of the
Constitution. Its irrebuttable, per se rules eliminate the
need for plaintiffs to prove that they were injured by each
violation, providing a roadmap for a flood of citizen-suit litigation by unharmed plaintiffs against a wide range of defendants. State and federal regulators, not private plaintiffs, are charged with the primary enforcement of environmental statutes. Amici seek to preserve constitutional
limits on the role citizen suits play in enforcing environmental laws.
SUMMARY OF ARGUMENT
Amici agree with petitioners that certiorari is warranted to resolve the important questions presented and
address confusion in the lower courts regarding environmental citizen-suit standing requirements. This brief
elaborates on the legal and practical issues created by the
Fifth Circuit’s relaxed standing rules in environmental citizen-suit actions.
Under Congress’s statutory design, state regulatory
agencies and the EPA play the primary role in implementing and enforcing the CAA and the CWA. Duty-bound to
act in the public interest, these regulatory agencies enjoy
broad-ranging powers to enforce these enactments’ requirements, including the power to seek penalties and
6
injunctive relief. Those penalties can be substantial; the
CAA, for example, carries a maximum penalty of $121,275
per violation. See 40 C.F.R. § 19.4. The CAA and CWA
also authorize citizens to bring civil actions in federal court
to seek redress for violations of those statutes in certain
circumstances. 42 U.S.C. § 7604; 33 U.S.C. § 1365. Citizen
suits, however, play a limited and interstitial role in enforcing these statutes—a role that must supplement and
not supplant the primary role of regulatory agencies.
Article III of the Constitution constrains the range of
claims that a citizen-plaintiff may assert, even where the
claim is authorized by statute. Article III restricts federal
courts to adjudicating cases or controversies between parties. To that end, courts may decide only claims for which
a plaintiff has suffered a concrete injury, fairly traceable
to the defendant’s wrongdoing, that can be redressed by
judicial action. Moreover, a plaintiff who has standing for
one claim may not leverage that claim to litigate myriad
other claims for legal violations that caused that individual
no concrete injury.
This case exemplifies a citizen suit that transgressed
these constitutional limits. Filing a complaint that appended the self-reports that ExxonMobil submitted to the
TCEQ, plaintiffs sued for thousands of violations across an
almost eight-year period, seeking hundreds of millions of
dollars in civil penalties. Disregarding the fundamental
Article III requirement that plaintiffs prove injuries
traceable to each violation, the Fifth Circuit crafted a
standing test that irrebuttably presumes traceable injuries for certain types of violations. That approach, along
with similarly loose approaches adopted by other circuits,
contradicts this Court’s precedent and would transform
citizen suits from civil actions, limited to concrete controversies, into regulatory vehicles for dictating environmental policy. Allowing the Fifth Circuit’s fractured en banc
ruling to stand would be particularly troublesome because
7
the Fifth Circuit is home to a disproportionate number of
refining and chemical facilities that, under the decision below, are sitting targets for citizen-suit actions threatening
massive penalties, even without any effort to trace alleged
harms to any legal violation.
Amici urge this Court to repudiate the Fifth Circuit’s
per se standing test, along with similar tests applied by
other courts of appeals, lest this case become a national
roadmap for interest groups using citizen suits to create a
de facto regime of private-regulator enforcement. Amici
and their members work hard to comply with a complex
web of regulatory provisions under the Nation’s environmental laws. Members of the state and federal executive
branches enforce those laws daily. Citizen suits should not
be allowed to supplant this ongoing regulatory process by
substituting private persons and federal judges for the
duly assigned law enforcers.
ARGUMENT
I.
THE FIFTH CIRCUIT DEPARTED FROM ARTICLE III’S
LIMITS ON ENVIRONMENTAL CITIZEN SUITS
In the decision below, and in other decisions, the Fifth
Circuit—like other circuits—has allowed citizen suits to
grow far beyond their intended, supplementary role into
sprawling and burdensome regulatory-enforcement programs. Purporting to adjudicate thousands of violations
of disparate environmental requirements over nearly a
decade, these decisions now resemble 1970s-era institutional-reform litigation more than ordinary civil practice.
Allowing individual citizens and federal courts to displace
the Executive Branch’s enforcement functions creates serious tension with Article II. It also flatly violates Article
III when citizen-plaintiffs sue over numerous violations
without establishing that each violation caused them harm
traceable to the defendant and redressable by judicial relief. This Court should grant certiorari to instruct lower
8
courts that bedrock standing principles apply to citizen
suits just as rigorously as to any other case in federal
court.
A. Citizen suits were designed to supplement, not
supplant, agency enforcement of environmental
statutes
Under the CAA and other environmental statutes,
State and federal executive-branch authorities enjoy
broad, primary power to enforce the law. Ohio v. EPA,
603 U.S. 279, 283 (2024). The CAA also authorizes any person to commence a civil action for repeated or ongoing violations of an “emission standard or limitation,” including
a permit “term” or “condition.” 42 U.S.C. § 7604(a)(1), (f);
see also 33 U.S.C. § 1365(a)(1) (similar CWA provision).
Given this statutory context, citizen suits serve a defined
and specific purpose. They are “meant to supplement rather than to supplant governmental action.” Stringer v.
Town of Jonesboro, 986 F.3d 502, 506 (5th Cir. 2021).
Thus, citizen suits play an “interstitial” role in enforcing
environmental statutes, and this Court has warned against
applications of the CWA citizen-suit provision that would
“potentially intru[de]” on the “discretion of state [and federal] enforcement authorities.” Gwaltney of Smithfield,
Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 61
(1987).
Consistent with these principles, state regulators and
the EPA are the authorities empowered to determine enforcement priorities and balance the costs and benefits
that relate to the public interest. State and federal regulators have expertise continuously supervising enormous
facilities like Petitioners’ Baytown plant. Citizen suits, by
contrast, adjudicate and redress concrete injuries to individual plaintiffs. This dual structure affords regulated
businesses a unified approach to the interpretation and enforcement of environmental statutes. And this framework
9
is critical to the regulated community because compliance
with environmental laws can require years of planning and
millions of dollars in capital expenditures, even for a single
project.
As this Court has recognized, “the choice of how to prioritize and how aggressively to pursue legal actions
against defendants who violate the law falls within the discretion of the Executive Branch, not within the purview of
private plaintiffs (and their attorneys).” TransUnion
LLC v. Ramirez, 594 U.S. 413, 429 (2021). Private plaintiffs “are not accountable to the people and are not
charged with pursuing the public interest in enforcing a
defendant’s general compliance with regulatory law.”
Ibid. Consequently, courts should decline private litigants’ invitation to exercise “continuing superintendence”
over a company’s or industry’s regulatory compliance.
Friends of the Earth, Inc. v. Laidlaw Env’t Servs., 528
U.S. 167, 193 (2000).
B. Citizen-suit plaintiffs must demonstrate Article III standing for each claim
Article III standing doctrine reinforces the limited role
of citizen suits. Acting as sovereigns, regulatory agencies
may bring enforcement actions to pursue statutory violations without the need to prove individualized injuries or
to show that judicial relief would redress those injuries.
See 42 U.S.C. § 7413 (granting EPA the power to bring
civil actions to enforce the CAA); 33 U.S.C. § 1319 (similar
CWA provision). But standing doctrine imposes strict
constraints on the scope of citizen suits in federal court.
Article III helps ensure that “[f]ederal courts do not exercise general legal oversight of the Legislative and Executive Branches, or of private entities.” TransUnion, 594
U.S. at 423-424.
“Congress cannot erase Article III’s standing requirements by statutorily granting the right to sue to a plaintiff
10
who would not otherwise have standing.” Spokeo, Inc. v.
Robins, 578 U.S. 330, 339 (2016); see TransUnion, 594
U.S. at 425. Article III permits a plaintiff to litigate only
those statutory violations that she has standing to challenge.
To establish standing, a citizen-suit plaintiff must
demonstrate the “irreducible constitutional minimum” of
(1) a concrete and particularized injury-in-fact that (2) is
fairly traceable to the violation and (3) will be redressed
by a favorable decision. Lujan v. Defs. of Wildlife, 504
U.S. 555, 560-561 (1992). Even statutory violations that
directly relate to the plaintiff are insufficient, unless the
plaintiff also shows that the violation concretely injured
her. For example, in TransUnion many plaintiffs lacked
standing even though the defendant had allegedly violated
the Fair Credit Reporting Act by placing an inaccurate
alert on each plaintiff’s credit report. 594 U.S. at 417. This
Court concluded that only plaintiffs whose credit files
were provided to third parties had suffered a concrete
harm and therefore had standing. Id. at 431-433. Thus,
potential injury or even an increased likelihood of injury is
not enough for standing to sue for monetary relief. See id.
at 436-439.
Citizen-suit plaintiffs must also establish that their injury is “fairly * * * trace[able] to the challenged action of
the defendant.” Lujan, 504 U.S. at 560-561. An injured
plaintiff provides only one side of the case or controversy.
The other side is fulfilled by a defendant that allegedly
caused the claimed injury.
Moreover, “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.”
TransUnion, 594 U.S. at 431. The same requirements apply no matter how many violations are alleged. See id. at
417 (holding, in case where class of 8,185 individuals sued
11
TransUnion, that only 1,853 class members had standing
to assert a reasonable-procedures claim). Traceability
works in conjunction with the bar on standing in gross to
prevent a plaintiff who has an injury traceable to one violation from suing for another violation for which he did not
suffer a traceable injury.
C. The Fifth Circuit’s per se rules are insufficient
to ensure that citizen-suit plaintiffs have standing
Amici agree with Petitioners that normal standing requirements—including the requirement of showing that
the defendant’s violation likely harmed a plaintiff—must
apply with equal force in environmental citizen-suit cases.
The Fifth Circuit’s per se rules for establishing standing
fall short of Article III’s requirements in multiple ways
and warrant review by this Court.
1. Even though the Fifth Circuit recognized that
plaintiffs must prove standing for each violation, in ETCL
II and III the court of appeals adopted a test and created
a set of per se rules that largely nullify Article III’s injury
and traceability requirements. The traceability standard
set forth in those opinions was applied by the district
court, whose judgment was affirmed by the en banc Fifth
Circuit. Pet. 15.
In ETCL II, the Fifth Circuit correctly recognized that
plaintiffs alleged a large number and variety of violations
rather than “the same injury resulting from a series of
similar discharges,” as was the case in Laidlaw. Pet. App.
300a. Moreover, unlike in prior cases, there is “doubt [in
this case] that the pollutant emitted could cause the alleged injury.” Ibid. But despite these cautionary signs
that counseled a rigorous application of Article III, the
court nonetheless adopted a standing test from Sierra
Club, Lone Star Chapter v. Cedar Point Oil Co., 73 F.3d
546 (5th Cir. 1996), that conflicts with the requirement
12
that plaintiffs prove traceable injuries for each actionable
violation.
Applying its interpretation of Cedar Point, the Fifth
Circuit reasoned that plaintiffs need only make two showings to demonstrate traceable injuries: (1) “each violation
in support of their claims ‘causes or contributes to the
kinds of injuries’ they allege,” and (2) “the existence of a
‘specific geographic or other causative nexus’ such that the
violation could have affected their members.” Pet. App.
307a (emphases added); see id. at 265a (applying this test
in ETCL III).
2. The per se rules the Fifth Circuit applied are incompatible with the principle that a plaintiff must establish a traceable, concrete injury for each claim on which he
seeks relief. As Judge Jones correctly noted in her en
banc dissent, traceability requires proof that the defendant’s conduct is a cause-in-fact of the plaintiff’s injury. Id.
at 103a. The Fifth Circuit’s rule, however, provides that a
regulatory violation will automatically satisfy the injury
prong of Cedar Point if it “(1) created flaring, smoke, or
haze; (2) released pollutants with chemical odors; or (3) released pollutants that cause respiratory or allergy-like
symptoms.” Id. at 307a. The court of appeals further instructed the district court to find the geographic-nexus
prong of the test automatically met if the emission “violated a nonzero emissions standard” or “had to be reported under Texas regulations.” Id. at 311a. The Fifth
Circuit allowed factfinding by the district court regarding
traceable injuries only as to emissions that violated a zeroemissions standard. Ibid. Only for that limited class of
emissions were plaintiffs required to prove ExxonMobil’s
emissions reached the areas where plaintiffs’ members
live and recreate.
Put simply, the Fifth Circuit’s rules assume that because plaintiffs experienced some traceable injuries
13
during the relevant period, a traceable injury must also
have arisen each time other similar specified violations occurred. These judicially constructed assumptions “eliminate[] traceability altogether,” id. at 320a (Oldham, J.,
concurring in part and dissenting in part); see id. at 140a141a (Jones, J., dissenting), as they dispense with the need
to prove that a defendant’s conduct is a cause-in-fact of a
plaintiff’s injury.
As this Court explained, “[a] plaintiff who has been
subject to injurious conduct of one kind [does not] possess
by virtue of that injury the necessary stake in litigating
conduct of another kind, although similar, to which he has
not been subject.” Blum v. Yaretsky, 457 U.S. 991, 999
(1982) (emphasis added); see DaimlerChrysler Corp. v.
Cuno, 547 U.S. 332, 335, 352 (2006) (rejecting the argument that standing to assert one claim also confers standing to assert other claims that “derive from a common nucleus of operative fact”). Nor can a court grant standing
to plaintiffs based on speculation that someone must have
been injured by the bulk of defendants’ violations. Blum,
457 U.S. at 999. Rather, “the judicial power conferred by
Art. III may not be exercised unless the plaintiff shows
‘that he personally has suffered some actual or threatened
injury as a result of the putatively illegal conduct of the
defendant.’” Ibid. (emphases added).
The Fifth Circuit’s test replaces the plaintiff’s evidentiary burden with an irrebuttable judicial presumption
that broadly similar violations will necessarily lead to further traceable injuries. Under that approach, plaintiffs
can automatically establish standing to litigate violations
from which they may have suffered no injury. And that
violates Article III, which “grants federal courts the
power to redress harms that defendants cause plaintiffs,
not a freewheeling power to hold defendants accountable
for legal infractions.” TransUnion, 594 U.S. at 427.
14
3. A few examples suffice to illustrate why the Fifth
Circuit’s test violates Article III’s requirement that at
least one of plaintiffs’ members must have suffered a concrete injury traceable to each violation.
First, take Judge Oldham’s hypothetical of a plaintiff
with asthma who lived in Baytown but was away during
three emission events that (1) could have reached into
Baytown, (2) were of reportable quantities or exceeded
non-zero emissions limits, or (3) could have caused or contributed to flaring, smoke, or haze. Pet. App. 326a; see
also TransUnion, 594 U.S. at 427-428 (providing a similar
example). This plaintiff plainly lacks Article III standing
as to those violations. Yet this scenario satisfies both the
injury and geographic-nexus prongs of the Fifth Circuit’s
test.
Second, the Fifth Circuit provided a scenario in which
there was “obvious[ly]” no Article III standing. Pet. App.
299a. If a citizen moved from Florida to Baytown in 2005,
the court acknowledged he would not have standing to sue
for violations that occurred in 2004. Ibid. Yet the Fifth
Circuit’s test contains no such limiting principle. The test
contains a per se geographic-nexus component, but it contains no temporal requirements.
Moreover, the violations for which plaintiffs sued occurred between October 2005 and September 2013. Id. at
258a. Yet not all plaintiffs lived in Baytown during this
entire period, and plaintiffs suffered different injuries
from one another. Id. at 302a-303a. Nonetheless, the
Fifth Circuit’s per se rules irrebuttably presume that
some plaintiff was in Baytown and suffering all the specified injuries throughout the entire period, even when this
is plainly counterfactual. For instance, the only two plaintiffs who testified to suffering injuries after September
2012 did not even live in Baytown, and one of those members stopped visiting Baytown regularly after March 2013.
15
Id. at 491a-496a. By irrebuttably presuming that all specified emissions gave rise to traceable injuries, the Fifth
Circuit effectively assumed, without any evidentiary basis,
that at least one of those two members must have been
visiting Baytown near the facility during the times of all
the relevant alleged violations in late 2012 and 2013. This
goes beyond even conjecture.
4. Article III requires still more than a plaintiff who
is temporally present and geographically close enough to
potentially experience a violation; the plaintiff must show
that he was actually injured by the violation. The Fifth
Circuit’s per se rules, however, presume injury for certain
categories of violations from the mere fact of proximity.
The court stated, for example, that plaintiffs could “undoubtedly see” flares from their homes and other areas
outside the Baytown complex and reasoned that plaintiffs’
testimony that they saw flares on one or more occasions
was “evidence * * * enough” to support standing for all
flaring violations. Id. at 310a. But even assuming merely
seeing a flare constitutes an injury-in-fact, no evidence
supports the inference that seeing one flare equals seeing
all flares, and there is good reason to doubt it. Weather
conditions such as clouds, fog, or rain could obscure the
flaring. Additionally, plaintiffs would need to be in view of
the portion of the “massive” facility, id. at 292a, from
which the flare emanated. Judicial assumptions cannot
substitute for evidence of injury.
Similarly, the Fifth Circuit’s test irrebuttably assumes
without evidence that every emission of a reportable quantity or in violation of a non-zero limit would have reached
at least one of plaintiffs’ members in an amount sufficient
to cause an injury. Once again, no evidence explains why
this would be so, and there is reason for doubt. For one
16
thing, air emissions are affected by wind.2 If the wind were
blowing away from a member’s location on given days,
emissions may not reach the member in sufficient quantities to cause chemical odors or allergy symptoms. In fact,
one of plaintiffs’ members testified that “when the wind
was blowing towards the Complex away from him during
flaring events, he did not smell the odors.” Pet. App. 350a.
Plaintiffs must present evidence to establish each violation
for which they can reasonably trace an injury. There is no
basis for lessening plaintiffs’ standing burden in citizen
suits, not least because plaintiffs control the number of violations alleged in their complaint.
TransUnion strongly supports this conclusion. While
this Court acknowledged the class members’ “serious argument” that many of their credit reports were likely sent
to third parties outside of the period covered by a relevant
stipulation, it held that plaintiffs “had the burden to prove
at trial that their reports were actually sent to third-party
businesses.” 594 U.S. at 439 (emphasis added). Plaintiffs’
argument about probabilities simply did not “demonstrate
that the reports of any particular number of the 6,332
class members were sent to third-party businesses.” Ibid.
(emphasis added). Likewise, the Fifth Circuit’s test
amounts to relying on “inferences” that are “too weak to
demonstrate” injury-in-fact, traceability, and redressability for any particular number of alleged violations. Ibid.
By substituting per se presumptions for specific proof tied
to each alleged violation, the Fifth Circuit undermined Article III.
See Wisconsin v. EPA, 938 F.3d 303, 309 (D.C. Cir. 2019) (“Air pollution, once emitted, drifts with the wind * * * .”)).
2
17
D. Per se standing rules convert citizen suits from
discrete cases and controversies into sprawling
regulatory-enforcement actions
1. By adjudicating alleged legal violations in citizen
suits without evidence that such violations satisfy Article
III, the Fifth Circuit and likeminded courts have improperly converted such suits to vehicles for broad-scale regulatory enforcement, unconstrained by the separation of
powers. Without a concrete, traceable injury, plaintiffs’
abstract interest in environmental enforcement does not
differ from that of the public at large. Such abstract interests in ensuring legal compliance must be vindicated by
the government, not private citizens. As this Court affirmed, “[a]n uninjured plaintiff who [brings a citizen suit]
is, by definition, not seeking to remedy any harm to herself
but instead is merely seeking to ensure a defendant’s
‘compliance with regulatory law’ * * * . Those are not
grounds for Article III standing.” TransUnion, 594 U.S.
at 427-428 (internal citations omitted). The Fifth Circuit’s
failure to apply this constitutional filter transformed what
should have been a relatively narrow case into a wholesale
relitigation of regulators’ enforcement decisions concerning events at a large industrial complex over almost eight
years.
Unless plaintiffs are required to prove that a defendant’s conduct was a cause-in-fact of a concrete injury to
establish standing, the standing-in-gross strategy pursued by the plaintiffs here will serve as a handbook for future citizen-suit plaintiffs unhappy with their states’ regulatory-enforcement decisions. Such a result effectively
converts the federal courts into “virtually continuing monitors of the wisdom and soundness of Executive action,” a
role this Court has always rejected. Lujan, 504 U.S. at
577. “A regime where Congress could freely authorize unharmed plaintiffs to sue defendants who violate federal
law not only would violate Article III but also would
18
infringe on the Executive Branch’s Article II authority.”
TransUnion, 594 U.S. at 429. Under the Fifth Circuit’s
approach, the only limits on a citizen suit’s reach are the
statute of limitations and the number of alleged violations
plaintiffs can identify that fall into the Fifth Circuit’s per
se rules.
Worse still, confusion from relaxed standing rules in
environmental citizen suits has expanded to other circuits. The problem began with the Third Circuit’s decision
in Public Interest Research Group of New Jersey, Inc. v.
Powell Duffryn Terminals Inc., 913 F.2d 64 (3d Cir. 1990),
which introduced a relaxed traceability framework in
CWA cases. Id. at 72. The Fifth Circuit adopted that
framework in Cedar Point, and other circuits have followed suit. Pet. 21-23. In the weeks since the petition was
filed, the First Circuit held for the first time that “in lieu
of requiring a conclusive link” between a plaintiff’s injury
and a defendant’s unlawful conduct, “a showing of geographic proximity can satisfy traceability” in CAA
cases. Conservation Law Found., Inc. v. Acad. Express,
LLC, 129 F.4th 78, 91 (1st Cir. 2025). This Court’s review
is necessary to prevent yet more courts from embracing
the Fifth Circuit’s error.
2. Even when standing rules are enforced, “citizen
CAA suits” have the “potential to usurp the Executive
Branch’s principal prosecutorial responsibility under Article II.” Pet. App. 139a n.32 (Jones, J., dissenting). That
is because citizen suits “rais[e] ‘[d]ifficult and fundamental
questions’ about ‘the delegation of Executive power.’”
Dep’t of Transp. v. Ass’n of Am. R.Rs., 575 U.S. 43, 62
(2015) (Alito, J., concurring) (quoting Laidlaw, 528 U.S. at
197 (Kennedy, J., concurring)). “Under our Constitution,
the ‘executive Power’—all of it—is ‘vested in a President,’
who must ‘take Care that the Laws be faithfully executed.’” Seila Law LLC v. CFPB, 591 U.S. 197, 203 (2020)
(quoting U.S. Const. art. II, § 1, cl. 1; id. § 3). Yet the
19
President can ensure that the laws are faithfully executed
only when he “oversee[s] the faithfulness of the officers
who execute them.” Id. at 484. Citizen-suit provisions sit
uneasily within that constitutional framework because
they redelegate core executive power vested exclusively in
the President to unaccountable private attorneys general.
See Abell, Ignoring the Trees for the Forests: How the Citizen Suit Provision of the Clean Water Act Violates the
Constitution’s Separation of Powers Principle, 81 VA. L.
REV. 1957, 1964 (1995).
The absence of accountability in private-enforcement
actions presents well-recognized dangers. “Virtually none
of the checks on executive enforcement discretion apply to
private parties.” Grove, Standing as an Article II Nondelegation Doctrine, 11 U. PA. J. CONST. L. 781, 818 (2009).
And with citizen suits, there is a complete “lack of political
accountability for important policy decisions” as to
whether, where, how, when, and whom to sue. Pierce,
Agency Authority to Define the Scope of Private Rights of
Action, 48 ADMIN. L. REV. 1, 12 (1996).
Adding a diluted standing test to this mix compounds
the acute separation-of-powers concerns that already attend citizen suits. Allowing plaintiffs to exercise executive
authority where they have suffered traceable injuries is
questionable at best under Article II. Allowing them to
sue for years of regulatory violations, without even proving traceable injuries, eliminates all constraints and allows
individual citizens to supplant executive agencies. “Regulated parties should not be placed in the position of bowing
to both government and private masters, the latter of
whom are under no democratic restraints and indeed
whose attorneys reap significant benefits from prevailing.” Pet. App. 139a n.32 (Jones, J., dissenting). Rigorously enforcing Article III boundaries will at least lessen
the profound tension with Article II created by environmental citizen suits.
20
Article II principles likewise offer a reason for this
Court to reexamine its problematic holding in Laidlaw
that civil penalties paid to the government—not to citizenplaintiffs—provide redress by “encourag[ing] defendants
to discontinue current violations and deter them from
committing future ones.” 528 U.S. at 185-186. As Justice
Scalia observed in dissent, “[b]y permitting citizens to pursue civil penalties payable to the Federal Treasury, the
Act does not provide a mechanism for individual relief in
any traditional sense, but turns over to private citizens the
function of enforcing the law.” Id. at 209. The citizen-suit
plaintiff becomes “a self-appointed mini EPA” and these
suits proceed “without meaningful public control.” Ibid.
By departing from bedrock Article III principles, Laidlaw
helped lay the groundwork for sprawling cases that bear
little resemblance to discrete controversies that aim to
remedy a citizen’s individual harms. See Pet. App. 185a186a n.3 (Oldham, J., dissenting) (remarking on the “constitutional tension” in finding standing where civil penalties are payable to the Government and noting the “substantial arguments” that such a regime “is inconsistent
with Article II” (quoting United States ex rel. Polansky v.
Exec. Health Res., Inc., 599 U.S. 419, 449 (2023) (Thomas,
J., dissenting))).
3. Citizen-suit litigation is not only constitutionally
anomalous; it is also uniquely burdensome, heightening
the need for courts to enforce Article III guardrails. Citizen-suit litigation is already “frequent and aggressive.”
Zinn, Policing Environmental Regulatory Enforcement:
Cooperation, Capture, and Citizen Suits, 21 STAN. ENVTL. L.J. 81, 139 (2002). Citizen enforcers “generally follow[] a much more vigorous enforcement policy than the
responsible government agencies in at least two respects:
in the number and kinds of cases brought, and in the level
of penalties sought.” Ibid. (quoting Boyer & Meidinger,
Privatizing Regulatory Enforcement: A Preliminary
21
Assessment of Citizen Suits Under Federal Environmental Laws, 34 BUFF. L. REV. 833, 893 (1985)). Their “damage figures reportedly run ten to one hundred times
higher than the amounts the EPA customarily receives in
settled cases.” Ibid. (quoting Boyer & Meidinger, supra,
at 924). Because civil penalties are payable to the Treasury, they provide citizen-suit plaintiffs no financial incentive to settle; indeed, non-financial motivations may lead
such plaintiffs to insist on exorbitant penalties that government regulators would never try to impose.
Environmental citizen suits are also particularly expensive to litigate due to their “inherent” “scientific and
legal complexity.” Lang, Citizens’ Environmental Lawsuits, 47 TEX. ENV’T L.J. 17, 22 (2017). Parties often must
obtain specialized attorneys experienced in environmental
litigation, and sometimes “a team of PhD consulting and
testifying experts, and a budget for laboratory testing of
environmental samples.” Ibid.
The en banc Fifth Circuit’s fractured decision in this
case, after years of proceedings bouncing back and forth
between the district court and the court of appeals, promises to supercharge this costly breed of litigation. And the
Fifth Circuit’s jurisdiction over a disproportionate number of the nation’s refining and chemical facilities means
that citizen-plaintiffs will view the en banc court’s failure
to correct misguided circuit precedents as a green light to
launch multi-year regulatory-enforcement lawsuits
against plants throughout the Gulf Coast. Of the 132 U.S.
petroleum refineries, 52 are within the Fifth Circuit’s jurisdiction. U.S. Energy Information Administration,
Number and Capacity of Petroleum Refineries (June 16,
2024).3 If the decision below stands, nothing prevents environmental groups from finding residents near each
plant, establishing injury-in-fact from a handful of
3
https://www.eia.gov/dnav/pet/pet_pnp_cap1_dcu_STX_a.htm.
22
violations, and becoming de facto enforcement authorities
supervising much of the Nation’s industrial base.
4. The task of identifying alleged violations is eased
by the comprehensive self-reporting and recordkeeping
requirements that govern regulated businesses. For example, businesses with CAA operating permits are required to self-report every six months all “indications of
noncompliance” with CAA requirements, regardless of
whether they involve emissions that exceed limits. 30 Tex.
Admin. Code §§ 122.10(5); 122.145(2). Similarly, under the
CWA, businesses holding Texas Pollution Discharge
Elimination System permits are required to periodically
report their compliance with the conditions of permits and
relevant statutes. 30 Tex. Admin. Code § 319.1.
Under the per se standing rules embraced by the Fifth
Circuit and similar rules adopted by other courts, any time
a report reveals an emission exceeding a permit limit that
falls within the court-designated categories, citizen-suit
plaintiffs could use the report to establish standing without proving they were injured by the alleged violation.
Amici’s members take their reporting obligations seriously. But these reports are primarily designed to facilitate decision-making by executive-branch regulators
about whether and how to address potential violations.
They should not be weaponized to allow interest groups to
pursue their own policy agendas in federal court against
companies that faithfully comply with environmental-reporting duties.
CONCLUSION
The Court should grant the petition as to both questions presented.
23
Respectfully submitted.
ANDREW R. VARCOE
STEPHANIE A. MALONEY
U.S. CHAMBER LITIGATION CENTER
1615 H Street, NW
Washington, D.C. 20062
(202) 463-5337
Counsel for Amicus Curiae Chamber of Commerce of the United
States of America
ELLIOTT ZENICK
AMERICAN CHEMISTRY
COUNCIL
700 2nd Street, NE
Washington, D.C. 20002
(202) 249-6744
Counsel for Amicus Curiae American Chemistry Council
ELLEN STEEN
TRAVIS CUSHMAN
AMERICAN FARM BUREAU FEDERATION
600 Maryland Ave., SW,
Suite 1000W
Washington, D.C. 20024
(202) 463-2600
AARON M. STREETT
Counsel of Record
MATTHEW KURYLA
HARRISON REBACK
ELISABETH C. BUTLER
BAKER BOTTS L.L.P.
910 Louisiana Street
Houston, TX 77002
(713) 229-1234
aaron.streett@bakerbotts.com
Counsel for Amici Curiae
RICHARD S. MOSKOWITZ
TYLER KUBIK
AMERICAN FUEL & PETROCHEMICAL MANUFACTURERS
1800 M Street, NW, Suite 900N
Washington, D.C. 20036
(202) 457-0480
Counsel for Amicus Curiae American Fuel & Petrochemical Manufacturers
ERICA KLENICKI
MICHAEL A. TILGHMAN II
NATIONAL ASSOCIATION OF MANUFACTURERS
733 10th Street, NW, Suite 700
Washington, D.C. 20001
(202) 637-3100
Counsel for Amicus Curiae NaCounsel for Amicus Cutional Association of Manufacturriae American Farm Bu- ers
reau Federation
24
TAWNY BRIDGEFORD
NATIONAL MINING ASSOCIATION
101 Constitution Avenue, NW, Suite
500E
Washington, D.C. 20001
(202) 463-2600
Counsel for Amicus Curiae National Mining Association
April 2025
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.