Amicus Curiae Brief — ExxonMobil Corporation, et al., Petitioners v. Environment Texas Citizen Lobby, Incorporated, et al.

Supreme Court briefApr 16, 2025

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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.

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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

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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.

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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

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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.

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