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

No. 24-982

IN THE

Supreme Court of the United States

_________

EXXONMOBIL CORPORATION; EXXONMOBIL CHEMICAL

COMPANY; EXXONMOBIL REFINING & SUPPLY COMPANY,

Petitioners,

v.

ENVIRONMENT TEXAS CITIZEN LOBBY, INCORPORATED;

SIERRA CLUB,

Respondents.

_________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

_________

BRIEF IN OPPOSITION

_________

Erin Glenn Busby

Lisa R. Eskow

UNIVERSITY OF TEXAS

SCHOOL OF LAW

SUPREME COURT CLINIC

727 E. Dean Keeton St.

Austin, TX 78705

David A. Nicholas

Counsel of Record

20 Whitney Rd.

Newton, MA 02460

(617) 964-1548

dnicholas100@gmail.com

Joshua R. Kratka

NATIONAL ENVIRONMENTAL

LAW CENTER

294 Washington St., Ste. 720

Boston, MA 02108

Counsel for Respondents

QUESTIONS PRESENTED

The questions presented are:

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

in a CAA citizen suit may satisfy Article III’s traceability requirement merely by showing that she suffered the “kinds of injuries” that defendants’ conduct

“could have” caused.

2. Whether this Court should overrule its holding, in

Friends of the Earth, Inc. v. Laidlaw Environmental

Services (TOC), Inc., 528 U.S. 167 (2000), that the

availability of civil penalties paid to the government

can satisfy Article III’s redressability requirement for

private, citizen-suit plaintiffs.

(i)

ii

RELATED PROCEEDINGS

There are no related proceedings beyond those included in petitioners’ Rule 14.1(b)(iii) statement.

iii

CORPORATE DISCLOSURE STATEMENT

Under Supreme Court Rule 29.6, Environment

Texas Citizen Lobby, Inc., and Sierra Club, both nonprofit organizations, state that they have no parent

companies, subsidiaries, or affiliates that have issued

shares to the public in the United States and that no

publicly held corporation owns 10% or more of their

stocks because they have never issued any stock or

other security.

iv

TABLE OF CONTENTS

Page

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

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

CORPORATE DISCLOSURE STATEMENT .......... iii

TABLE OF AUTHORITIES ........................................ v

INTRODUCTION ........................................................ 1

STATEMENT .............................................................. 2

A. Statutory and Regulatory Background ...... 2

B. Procedural History ...................................... 5

REASONS TO DENY THE PETITION ................... 15

I. The First Question Presented Does Not

Warrant Certiorari ............................................ 15

A. The petition offers a terrible vehicle. ....... 15

B. Petitioners do not allege a split, none

exists, and the circuits’ approach aligns

with this Court’s cases .............................. 21

C. There is no pressing need to address the

first question presented ............................ 27

II. The Second Question Presented Does Not

Warrant Certiorari ............................................ 28

CONCLUSION .......................................................... 34

v

TABLE OF AUTHORITIES

Page(s)

CASES:

Arizona v. City & County of San Francisco,

596 U.S. 763 (2022) .............................................. 20

Conservation Law Found., Inc. v. Academy Express, LLC,

129 F.4th 78 (1st Cir. 2025) ........................... 24, 25

Egbert v. Boule,

596 U.S. 482 (2022) .............................................. 31

Food & Drug Admin. v. All. for Hippocratic

Med.,

602 U.S. 367 (2024) ........................................ 25, 26

Friends of the Earth, Inc. v. Crown Cent.

Petroleum Corp.,

95 F.3d 358 (5th Cir. 1996) .................................. 22

Friends of the Earth, Inc. v. Gaston Copper

Recycling Corp.,

204 F.3d 149 (4th Cir. 2000) (en banc) ... 22, 23, 25, 30

Friends of the Earth, Inc. v. Laidlaw Env’t

Servs. (TOC), Inc.,

149 F.3d 303 (4th Cir. 1998)................................ 30

Friends of the Earth, Inc. v. Laidlaw

Env’t Servs. (TOC), Inc.,

528 U.S. 167 (2000) ... 2, 4, 5, 18, 19, 26, 29. 31, 32, 33

Gamble v. United States,

587 U.S. 678 (2019) .............................................. 30

Gwaltney of Smithfield, Ltd. v. Chesapeake

Bay Found., Inc.,

484 U.S. 49 (1987) .............................................. 3, 4

Kimble v. Marvel Ent., LLC,

576 U.S. 446 (2015) .............................................. 32

vi

TABLE OF AUTHORITIES—Continued

Page(s)

Linda R.S. v. Richard D.,

410 U.S. 614 (1973) .............................................. 33

Loper Bright Enters. v. Raimondo,

603 U.S. 369 (2024) .............................................. 30

Michigan v. Bay Mills Indian Cmty.,

572 U.S. 782 (2014) .............................................. 30

Monsalvo Velazquez v. Bondi,

No. 23-929, 2025 WL 1160894 (U.S. Apr. 22,

2025) ..................................................................... 27

Murthy v. Missouri,

603 U.S. 43 (2024) .......................................... 19, 25

Nat. Res. Def. Council v. Sw. Marine, Inc.,

236 F.3d 985 (9th Cir. 2000), cert. denied, 533

U.S. 902 (2001) ..................................................... 23

Pub. Int. Rsch. Grp. of N.J., Inc. v. Powell

Duffryn Terminals Inc.,

913 F.2d 64 (3d Cir. 1990), cert. denied, 498

U.S. 1109 (1991) ....................................... 21, 22, 25

Sierra Club, Lone Star Chapter v. Cedar Point

Oil Co.,

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

811 (1996) ........................................... 11, 16, 22, 25

Spokeo, Inc. v. Robins,

578 U.S. 330 (2016) .............................................. 32

Steel Co. v. Citizens for a Better Env’t,

523 U.S. 83 (1998) ................................................ 30

Summers v. Earth Island Inst.,

555 U.S. 488 (2009) .............................................. 32

Tigner v. Texas,

310 U.S. 141 (1940) .............................................. 33

vii

TABLE OF AUTHORITIES—Continued

Page(s)

TransUnion LLC v. Ramirez,

594 U.S. 413 (2021) ........................................ 26, 33

United States v. Johnston,

268 U.S. 220 (1925) .............................................. 17

United States v. Texas,

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

Utah Physicians for a Healthy Env’t v. Diesel

Power Gear, LLC,

21 F.4th 1229 (10th Cir. 2021) .......... 21, 23, 24, 25

Warth v. Seldin,

422 U.S. 490 (1975) .............................................. 18

Wisniewski v. United States,

353 U.S. 901 (1957) (per curiam) ........................ 28

Youakim v. Miller,

425 U.S. 231 (1976) .............................................. 29

STATUTES AND REGULATIONS:

Clean Air Act

42 U.S.C. § 7401(b)(1) ............................................ 2

42 U.S.C. § 7604(a) .......................................... 4, 18

42 U.S.C. § 7604(a)(1) ............................................ 3

42 U.S.C. § 7604(b)(1)(A) ....................................... 3

42 U.S.C. § 7604(b)(1)(B) ....................................... 3

42 U.S.C. § 7604(c)(2) ........................................ 3, 9

42 U.S.C. § 7604(c)(3) ............................................ 3

42 U.S.C. § 7413(b) ................................................ 4

42 U.S.C. § 7413(e)(1) ........................................ 4, 5

42 U.S.C. § 7413(e)(2) ............................................ 4

viii

TABLE OF AUTHORITIES—Continued

Page(s)

42 U.S.C. § 7661a(a) .............................................. 3

30 Tex. Admin. Code § 101.1(71) ............................. 3

30 Tex. Admin. Code § 101.1(88) ............................. 3

30 Tex. Admin. Code § 101.1(110) ........................... 6

30 Tex. Admin. Code § 101.201 ................................ 3

30 Tex. Admin. Code § 116.10(8) ............................. 3

30 Tex. Admin. Code § 116.715 ................................ 3

30 Tex. Admin. Code § 122.10(6) ............................. 3

30 Tex. Admin. Code § 122.145(2) ........................... 3

RULES:

Fed. R. Civ. P. 52(a)(1) ........................................... 17

Sup. Ct. R. 14.1(a)................................................... 33

Sup. Ct. R. 15.2 ....................................................... 20

OTHER AUTHORITIES:

84 Fed. Reg. 9866 (Mar. 18, 2019) ........................... 6

David Adelman, Setting the Record Straight on

Environmental Citizens Suits, Envtl. Law Prof

Blog (May 31, 2025), bit.ly/4kLm1Q2 ................. 33

David E. Adelman & Jori Reilly-Diakun, Environmental Citizen Suits & the Inequities of

Races to the Top, 92 U. Colo. L. Rev. 377

(2021) .................................................................... 33

EPA, Enforcement and Compliance

History Online, Baytown Plant Detailed Facility Report, bit.ly/baytownecho ............................... 6

EPA, EPA Integrated Science Assessment for

Sulfur Oxides—Health Criteria (Dec. 2017),

bit.ly/4k5tvxq ......................................................... 6

ix

TABLE OF AUTHORITIES—Continued

Page(s)

EPA, Policy on Civil Penalties (Feb. 16, 1984),

bit.ly/4jKrPcn ....................................................... 31

Memorandum from Jeffrey B. Clark, Assistant

Attorney General, Re: Equitable Mitigation in

Civil Environmental Enforcement Cases

(Jan. 12, 2021), bit.ly/430mDvb .......................... 32

News Release, ExxonMobil announces 2024

results (Jan. 31, 2025),

exxonmobil.co/4jKOVzp. ...................................... 28

INTRODUCTION

Petitioners run the country’s largest petrochemical

facility in Baytown, Texas. Their facility is subject to

limits on emissions of numerous harmful air pollutants and to standards that prevent stinging smells,

bright flares, loud noises, and explosions. But petitioners routinely exceed those limits and fail those

standards. The facility’s neighbors—respondents’

members—are the ones who suffer. They stay inside

when it hurts to breathe in chemicals. And they lie

awake as flares light up the night sky and rattle their

homes. After years of enduring these harms, they

sued to abate the violations and gain some peace.

Petitioners responded by tossing out one novel, untested argument after another. This worked initially:

A Fifth Circuit panel adopted an approach to Article

III traceability that “neither [this Court] nor other circuit court[s]” have endorsed, swayed by petitioners’

references to “the unprecedented number and variety

of violations at issue.” Pet. App. 32a-33a (Davis, J.,

concurring). But the defects in petitioners’ theories

were then laid bare: After vacating the prior panel

opinions, the full Fifth Circuit wrestled with petitioners’ novel arguments for nearly two years. It then issued a per curiam decision that merely affirmed the

district court’s latest judgment without an opinion.

Petitioners’ first question presented asks this Court

to wade in and become the first court to address their

arguments. There is no need. The decision below “decides nothing about standing,” leaving the law in the

Fifth Circuit as it was before this case began. Id. at

200a (Oldham, J., dissenting). That settled law follows the uniform approach every other circuit takes to

(1)

2

address Article III’s traceability requirement when

people sue to abate federal pollution limit violations.

That approach traces back 35 years, has proven helpful to lower courts, and reflects this Court’s precedents. And the non-precedential district court judgment at issue rests on a complex, extensive factual

record that would complicate review.

Petitioners’ second request, which asks this Court to

overrule a 25-year-old holding, is also unworthy.

When a person sues to abate ongoing violations of a

pollution limit and Congress has authorized her to

seek civil penalties paid to the U.S. Treasury, that forward-looking relief can deter future violations and

thus redress her injuries. See Friends of the Earth,

Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167,

186 (2000). The petition provides no reason to revisit,

much less overrule, that holding.

The petition should be denied.

STATEMENT

A. Statutory and Regulatory Background

The Clean Air Act exists “to protect and enhance the

quality of the Nation’s air resources so as to promote

the public health and welfare and the productive capacity of its population.” 42 U.S.C. § 7401(b)(1). The

federal and state governments implement the Act together. Broadly speaking, the federal government

sets air pollution standards to protect public health,

and states implement the standards through permit

limits and standards.

Texas’s Commission on Environmental Quality sets

emission limits in that state. Polluters may seek flexible permits (with aggregate emission limits for all

sources at a site) or standard permits (with source-by-

3

source limits). See 30 Tex. Admin. Code § 116.715.

Permits include a “maximum allowable emissions

rate table” listing emission limits and their applicable

time frame for each pollutant. See id. § 116.10(8).

Texas requires permitholders to publicly report certain violations and record others. See id. §§ 101.1(71),

(88), 101.201, 122.10(6), 122.145(2). Any permit violation is a violation of the Act. See 42 U.S.C.

§ 7661a(a).

The Act gives state and federal governments the primary role in addressing polluters’ noncompliance and

also gives the people whom polluters harm by failing

to meet permit obligations a “supplement[al] role” in

securing compliance. Gwaltney of Smithfield, Ltd. v.

Chesapeake Bay Found., Inc., 484 U.S. 49, 60 (1987)

(interpreting parallel Clean Water Act provisions). As

relevant, “any person” may bring “a civil action on his

own behalf” against a polluter “alleged . . . to be in violation of” “an emission standard or limitation under”

the Act or an “order” respecting “a standard or limitation.” 42 U.S.C. § 7604(a)(1).

The Act imposes procedural requirements on these

suits. A person must “give [a violator] an opportunity

to bring itself into complete compliance” and “render

[the suit] unnecessary” by providing 60 days’ notice of

violations of the standard, limit, or order. Gwaltney,

484 U.S. at 59-60; see 42 U.S.C. § 7604(b)(1)(A) (also

requiring notice to the state and federal governments). She may not sue if the government “has commenced and is diligently prosecuting a civil action . . .

to require compliance.” 42 U.S.C. § 7604(b)(1)(B).1 A

1 The federal government must be served, can intervene at any

time, and must receive notice and have a chance to respond before any consent decree enters. See 42 U.S.C. § 7604(c)(2)-(3).

4

person who clears these hurdles may seek relief from

intermittent or continuous “ongoing” violations.

Gwaltney, 484 U.S. at 59; see Laidlaw, 528 U.S. at 185

(interpreting parallel Clean Water Act provisions).

To establish a Section 7604(a)(1) claim on the merits, a person must prove that the emission limit,

standard, or order at issue is “actionable.” To do so,

she must show either (1) “repeated violation[s] of the

same” standard, limitation, or order “before the complaint” or (2) ‘‘violation[s] of the same” standard, limitation, or order “both before and after the complaint.”

Pet. App. 440a (quotation omitted).

If a person does so, the Act lays out the potential

remedies. A court may order injunctive relief. See 42

U.S.C. § 7604(a) (authorizing a court to “enforce” the

“emission standard or limitation, or . . . order”). The

court may also “apply any appropriate civil penalties,”

to be paid into a U.S. Treasury fund. Id.

The Act allows a court to consider the number of

days a polluter has violated the emission standard,

limit, or order at issue to assess an appropriate civil

penalty. A court may assess a penalty “for each day

of violation” of the standard, limit, or order. Id.

§ 7413(e)(2) (explaining how to identify the “days of

violations”); see Pet. App. 297a n.2 (noting agreement

that 42 U.S.C. § 7413(b)’s per-day cap applies). The

court must then consider specified factors to arrive at

any penalty, “in addition to such other factors as justice may require.” 42 U.S.C. § 7413(e)(1). Those are:

“the size of the business, the economic impact . . . on

the business, the violator’s full compliance history and

good faith efforts to comply, the duration of the violation,” “payment . . . of penalties previously assessed

5

for the same violation, the economic benefit of noncompliance, and the seriousness of the violation.” Id.

The Act’s citizen-suit provisions reflect the political

branches’ decision to allow those who are harmed

when permit holders violate emission limits to protect

themselves by suing to “encourage defendants to discontinue current violations and deter them from committing future ones.” Laidlaw, 528 U.S. at 186.

B. Procedural History

1. This case concerns petitioners’ Baytown, Texas facility, the largest petroleum and petrochemical complex in the United States. Pet. App. 476a. The complex consists of an oil refinery, a chemical plant, and

an olefins plant. Id. at 475a. It can process half a

million barrels of crude oil per day. Id. at 476a.

Google Earth image of the Baytown facility and surroundings

6

Neighborhoods, parks, and a nature reserve surround petitioners’ facility. The neighborhoods contain

homes, businesses, schools, playgrounds, and places of

worship. Several thousand people live within a mile

of the facility; nearly 100,000 live within five miles.

See EPA, Enforcement and Compliance History

Online, Baytown Plant Detailed Facility Report,

bit.ly/baytownecho.

Because the facility can emit millions of pounds of

harmful air pollutants, permits limit its emissions

and the associated harm to the facility’s neighbors.

Flexible permits govern the refinery and olefins plant,

and standard permits govern the chemical plant. See

Pet. App. 511a, 513a, 515a.

For example, a permit governing one flare stack (a

structure used to burn off gases) at the chemical plant

limits releases of sulfur dioxide (SO2)—a gas with a

choking, irritating smell—to 2,768 pounds per hour.

See id. at 382a (Permit 36476); Dkt. 253-10 at 6 (Oct.

31, 2016).2 That limit is important: Among other consequences, short-term exposure to even low levels of

SO2 damages lung function. See 84 Fed. Reg. 9866,

9875-877 (Mar. 18, 2019). After as little as five

minutes, exposure can constrict airways, impeding

breathing, exacerbating asthma, and damaging the

lungs. See id. at 9869, 9874-878; EPA, EPA Integrated

Science Assessment for Sulfur Oxides—Health Criteria, 5-116 (Dec. 2017), bit.ly/4k5tvxq.

As another example, the refinery permit bars “upset

emissions,” a prohibition that also serves important

purposes. Pet. App. 426a, 434a; see 30 Tex. Admin.

2 All Dkt. citations are to Environment Texas Citizen Lobby v.

ExxonMobil, No. 4:10-cv-4969 (S.D. Tex.).

7

Code § 101.1(110) (defining term). The gases and liquids throughout the facility are flammable, requiring

precautions to prevent them from escaping, igniting,3

and potentially causing difficult-to-control fires or explosions. 4 Something as seemingly innocuous as a

“smoldering board” is a potential ignition source that

can have disastrous consequences.5

Petitioners repeatedly violate their permits’ restrictions, often by staggering amounts. Between October 2005 and September 2013, petitioners “committed on average more than one permit violation per

day, resulting in the unlawful emission of nearly ten

million pounds of pollutants.” Pet. App. 6a (Davis, J.,

concurring). For example, one violation at the chemical plant flare stack released more than 52,000

pounds of SO2 in just a few hours, nearly 20,000

pounds above the 2,768 pounds-per-hour limit for that

flare. See Pet. App. 210a n.17; Dkt. 253-10 at 6 (Oct.

31, 2016). Petitioners’ modeling showed that the resulting SO2 concentration in a nearby neighborhood

exceeded the federal one-hour safety threshold. See

Pet. App. 65a (Davis, J., concurring).

The Baytown facility’s violations affected its neighbors’ daily lives and health.

For years, Richard Shae Cottar lived a quarter-mile

from the facility. Pet. App. 350a. While home, “he

saw or heard flaring events” that “were audibly disruptive, woke him up, [and] rattled the windows of his

3 Dkt. 199 at 12:7-25 (Apr. 18, 2014); Dkt. 210 at 65:21-66:2

(Apr. 21, 2014); Dkt. 211 at 66:5-14 (Apr. 21, 2014).

4 Dkt. 210 at 88:22-89:21 (Apr. 21, 2014); Dkt. 236-719 (Mar.

11, 2015).

5 Dkt. 199 at 13:6-22 (Apr. 18, 2014).

8

house.” Id. During these events, which sometimes

lasted “for several hours,” he saw “plumes of black

smoke” and “large flames.” Id. He “also smelled

strong, pungent odors” that sometimes “caused him

headaches and awoke him in the night.” Id. He knew

petitioners’ facility was the problem. Some events

were so disruptive that he looked up compliance records and matched petitioners’ reported violations to

the harms he experienced. Dkt. 195 at 119:6-14 (cited

at Pet. App. 494a). The odors “became more intense

the closer he got to the” facility. Pet. App. 350a. And

the next-closest facility was ten miles away. Dkt. 195

at 111:9 (cited at Pet. App. 350a).

This continued even after Mr. Cottar moved another

mile-and-a-half away out of concern for his and his

family’s health. Pet. App. at 351a. The distance

helped, but he still felt the effects of the complex’s

emissions and flares. Id. at 350a-351a. And when he

visits the Baytown Nature Center beside the facility,

“he does not stay if he sees emissions” from the facility. Id. at 351a.

Marilyn Kingman has been similarly affected. She

“shops, banks, attends church, and conducts other activities several times a week” near the facility. Id. at

349a. She has “smelled a chemical smell around [it],

seen flares at the [facility], and seen a gray or brown

haze over the” facility. Id. Because she fears these

emissions’ effects, “[s]he limits her outdoor activities

in Baytown when she smells odors or sees haze.” Id.

Mr. Cottar and Ms. Kingman are not alone. Neighbors routinely call petitioners and local authorities to

complain about the facility’s air pollution and flaring.

See Dkt. 236-549 (Mar. 11, 2015); Dkt. 235-1598 at 12

(Mar. 11, 2015). One incident involving a ground-level

9

mist containing benzene, ethylbenzene, and toluene

spurred multiple complaints. Dkt. 236-549 at 11-12

(Mar. 11, 2015). The chemical odors and flares affected some neighbors so much that they moved away.

See Pet. App. 348a, 352a.

2. Because “[a]bsent an appropriate” court order, petitioners “will continue to violate the Act,” respondents, on behalf of members including Mr. Cottar and

Ms. Kingman, followed the Act’s notice requirements

and sued. Dkt. 1 at 3 (Dec. 13, 2010). Their suit

sought to abate harms from ongoing violations (based

on petitioners’ reporting) of more than 60 separate

emission standards and limitations. 6 Respondents

sought declaratory relief, an injunction, and civil penalties. Pet. App. 474a.7

After the suit, Texas began an enforcement proceeding and negotiated an administrative order with petitioners. The order, among other things, “resolved enforcement for certain past” violations, imposed a penalty, and required petitioners to undertake four projects to reduce future violations. Id. at 341a-342a.

Texas’s action did not preclude respondents’ suit. By

operation of law, the penalties Texas imposed would

offset any civil penalties entered in the suit. See id. at

255a, 405a; cf. 42 U.S.C. § 7604(c)(2).

6 Dkt. 236-49 (Mar. 11, 2015); Dkt. 236-50 (Mar. 11, 2015); Dkt.

236-51 (Mar. 11, 2015); Dkt. 236-52 (Mar. 11, 2015); Dkt. 236-53

(Mar. 11, 2015).

7 Respondents sought $642,697,500 based on the number of violation days multiplied by the per-day maximum. See Pet. App.

540a, 541a n.267 (explaining methodology).

10

After a bench trial, the district court found that petitioners violated the emission standards and limits at

issue thousands of times but did not grant relief.

The district court found that respondents established all of Article III’s requirements for standing.

See Pet. App. 497a-502a. On the merits, it was “undisputed [petitioners] violated some emission standards or limitations.” Id. at 502a. The court thus addressed which claims were “actionable” under Section

7604. See id. at 502a-505a; supra at 4 (describing the

actionability requirement). The district court then

turned to remedy. It denied declaratory relief because

it had “already” found petitioners violated the Act.

Pet. App. 523a-524a. It also declined to award civil

penalties or enter an injunction. Id. at 540a-541a,

544a-545a.

3. Respondents appealed, and the Fifth Circuit vacated and remanded. The panel held that the district

court did not properly identify the full set of actionable

claims. See id. at 441a-442a. It also held that the district court erred in balancing the civil penalty factors.

For example, the district court failed to correctly determine whether petitioners benefited from noncompliance and assumed that the existence of less serious

violations nullified the significance of very serious violations. See id. at 463a, 469a.

4. On remand, the district court reassessed which

claims were actionable, how many violations were associated with those claims, and the appropriate civil

penalty. The court identified 16,386 days of violations

associated with actionable claims. Id. at 414a. The

court also found that petitioners received an economic

benefit of approximately $14.25 million by delaying

implementation of the four facility-wide improvement

11

projects included in the Texas enforcement order, all

of which would have helped prevent the violations at

issue and could have been implemented much earlier.

See id. at 409a, 411a. Finding further that other factors, including the seriousness and duration of the violations, warranted a civil penalty, it set a $19.95 million penalty. Id. at 414a-417a.

5. Petitioners appealed, and the Fifth Circuit again

vacated and remanded.

This time, petitioners challenged respondents’

standing. The panel described “[t]he main legal dispute” as whether respondents “must prove standing

for each violation they alleged.” Id. at 297a. It recognized that Section 7604(a)(1) provides a “cause of action—that is, a claim—only for repeated violations of

a particular emission standard.” Id. And it recognized that “no court” had found standing to seek civil

penalties for some violations relevant to a claim but

not others. Id. at 299a. But it nonetheless required

respondents to show standing for each violation used

to calculate the civil penalty because of “the number

and variety of violations” in the case. Id. at 299a.

The panel then turned to how respondents could establish traceability. It rejected petitioners’ view that

respondents had to prove that a specific member experienced a specific harm at the specific time of a recorded violation (for example, by videotaping a flaring

event in the dead of night, as one of respondents’

members happened to do). See id. at 304a. “Requiring

proof that specific” was not consistent with the requirement that an injury be fairly traceable to a defendant. Id. Petitioners “d[id] not question the vitality of” the Fifth Circuit’s decision in Sierra Club, Lone

Star Chapter v. Cedar Point Oil Co., 73 F.3d 546, 557

12

(5th Cir.), cert. denied, 519 U.S. 811 (1996). Pet. App.

305a n.4. So the panel applied the Cedar Point framework. Respondents had to show “that each violation

in support of their claims ‘causes or contributes to the

kinds of injuries’ they allege” and “a ‘specific geographic or other causative nexus’ such that the violation could have affected their members.” Id. at 307a.

The panel then offered examples of the types of harm,

violations, and nexus showings that would meet these

criteria. See id. at 307a-310a.

Judge Oldham concurred in the judgment. He questioned whether the Cedar Point framework could generate predictable results that satisfied Article III’s

traceability requirements. See id. at 325a-326a.

6. On remand, the district court applied the panel’s

traceability ruling and reassessed the civil penalty.

Applying the panel’s traceability test, the district

court identified the violations for which respondents

showed that the violations caused or contributed to

the kinds of injuries alleged and showed a geographic

or other causative nexus between those violations and

injuries. See id. at 208a-229a. As to the civil penalty,

the court reaffirmed that the statutory factors favored

one. “There were over 1.5 million pounds of pollutants

released from traceable reported violations out of the

refinery alone.” Id. at 251a. The court then reduced

the penalty to $14.25 million. Id. at 255a.

7. Petitioners appealed again, and the Fifth Circuit

affirmed.

Invoking the law of the case, the panel declined petitioners’ request to “revisit [its] approach to standing.” Id. at 261a. Petitioners did not challenge any

specific traceability finding from the district court.

13

And the district court’s analysis was “thorough and

sufficiently explained.” Id. at 270a.

Judge Oldham dissented. In his view, respondents

had not shown “causation in fact.” Id. at 280; see id.

at 284a-285a.

8. Petitioners sought rehearing en banc, which the

Fifth Circuit granted, vacating the two panel opinions

that had addressed standing. See id. at 547a-548a.

Nearly two years later, the Fifth Circuit “affirm[ed]

the judgment of the district court, dated March 2,

2021,” in a one-paragraph per curiam opinion. Id. at

3a. The court did not discuss standing or the merits.

It said only that it would not have granted rehearing

had it known “it would take a year and a half after . . .

argument” to issue an opinion. Id.

The en banc proceedings produced six opinions between 17 judges.

Chief Judge Elrod concurred in the per curiam opinion. She would have affirmed the third panel opinion

which, along with the underlying district court opinion, “got it right.” Id. at 2a n.**.

Judge Ho wrote separately and would have dismissed rehearing as “improvidently granted.” Id. at

77a. As to traceability, he defended the Cedar Point

framework. See id. at 82a. As to redressability, he

stated that he was convinced by the dissent in

Laidlaw, which disagreed with the majority’s holding

that a civil penalty remedy can deter future violations

of emission limits. See id. at 79a. But he accepted

Laidlaw as binding precedent. See id.

Judge Davis concurred, writing for seven judges. Id.

at 3a. He addressed two threshold issues that he saw

as relevant to traceability: (1) how to define a “claim”

14

under the Clean Air Act and (2) whether the standing

analysis for citizen suits seeking civil penalties is prospective or retrospective. See id. at 11a. As to the

first, Judge Davis explained that a claim “arises when

a particular pollutant has been emitted repeatedly in

violation of a permit limit.” Id. at 31a. A claim is for

“ongoing or imminently threatened injuries as a result

of . . . violations”—not, as petitioners argued, to “ ‘secure’ civil penalties as compensation for injuries they

may have suffered for past violations.” Id. at 31a, 32a.

As to the second issue, Judge Davis canvassed this

Court’s precedents and concluded that “plaintiffs may

only pursue prospective forms of relief,” “civil penalties are a form of prospective relief,” and “the standing

analysis for . . . injunctive relief applies equally to

suits seeking civil penalties.” Id. at 17a. Applying

these principles, he would have affirmed the district

court’s earlier judgment containing a $19.95 million

civil penalty award. Id. at 76a.

Judge Jones dissented, writing for seven judges. 8

Id. at 97a. She did not apply a forward-looking approach to assessing respondents’ standing. See id. at

133a. Instead, because civil penalties were at issue,

Judge Jones explained that she would require “traceability to” all of “the polluter’s past illegal discharges”

used to calculate civil penalties. Id. at 134a; see also

id. at 127a. Relatedly, she viewed the relevant cause

of action as one seeking relief “for every single reportable or recordable violation of a permit term or condition” at issue in a case. Id. at 127a. Based on these

8 Judge Richman joined some portions of this dissent but wrote

separately to identify places where Judge Jones’s reasoning was

inconsistent. See Pet. App. 162a.

15

conclusions, she viewed the case as involving “only

about forty days” of traceable violations. Id. at 158a.

Judge Oldham dissented, writing for the same dissenters minus Judge Richman. Id. at 174a. After emphasizing parts of Judge Jones’s dissent, he explained

that the en banc court’s per curiam opinion “decides

nothing about standing.” Id. at 200a.

This petition followed.

REASONS TO DENY THE PETITION

I. The First Question Presented

Does Not Warrant Certiorari.

There is no precedential Fifth Circuit ruling for this

Court to review. Granting review would thus amount,

at best, to error correction of a nonprecedential district court opinion based on a complex, extensive factual record. At worst, review would involve addressing a test not applied below and confronting thorny

antecedent questions. Petitioners ask this Court to

look past all of that because the Fifth Circuit needs

this Court’s guidance. Petitioners are wrong. The

Fifth Circuit has, for nearly 30 years, relied on Cedar

Point’s traceability framework when a person sues to

abate ongoing violations of a pollution limit. Every

other circuit to address this kind of claim applies the

same framework. The only instability in the law arose

when petitioners injected novel Clean Air Act interpretations and standing theories into this case. The

Fifth Circuit’s per curiam en banc opinion resolved

that instability by leaving prior circuit law in place.

This Court should not revive that instability now.

A. The petition offers a terrible vehicle.

1. The petition does not actually implicate the first

question presented. Petitioners state that the “Fifth

16

Circuit has held” that a plaintiff seeking to abate ongoing violations of pollution limits need only show

“that she suffered the ‘kinds of injuries’ that defendants’ conduct ‘could have’ caused.” Pet. i. That is not

the law in the Fifth Circuit. In the Fifth Circuit, both

before and after this case, to show traceability a plaintiff must show: (1) discharges above the permitted

limit; (2) “into a waterway” or other area “in which the

plaintiffs have an interest that is or may be adversely

affected by the pollutant”; (3) of a pollutant that

“causes or contributes to the kinds of injuries alleged.”

Cedar Point, 73 F.3d at 557. That is the law that the

district court applied to reach the judgment that the

en banc Fifth Circuit affirmed without an opinion.

The district court required respondents to show that

any violation supporting their claims for civil penalties “causes or contributes to the kinds of injuries they

allege” and show “the existence of a specific geographic or other causative nexus such that the violation could have affected their members.” Pet. App.

208a (quotation omitted). Petitioners’ first question

presented omits the geographic or other causative

nexus requirement and thus seeks review of a hypothetical test that was not applied below. This Court

should decline that invitation.

2. Whatever else divided the judges below, there was

no disagreement on one front: This case did not produce any precedential Fifth Circuit opinion that addresses standing. See Pet. App. 84a (Ho, J., concurring) (The per curiam en banc opinion “affirm[s] without issuing a precedential ruling on standing.”); id. at

99a (Jones, J., dissenting) (The opinion “necessarily

renders nugatory the earlier Fifth Circuit decisions in

this case.”); id. at 200a (Oldham, J., dissenting) (The

opinion “decides nothing about standing.”). The en

17

banc court vacated the panel opinions that had addressed standing. See id. at 548a. It then issued a per

curiam opinion with just one relevant sentence: “We

accordingly AFFIRM the judgment of the district

court, dated March 2, 2021.” Id. at 3a. There is therefore no legal rule on traceability for this Court to evaluate.

This petition thus asks this Court to review a district court opinion for error-correction purposes, and

all the usual reasons not to do so apply here. To understand how petitioners’ traceability theory might

apply to the different claims at issue here, this Court

would need—at a minimum—to wade into “the stipulated spreadsheet of violations to determine which” violations are and are not traceable under the tests that

the merits briefing may put before the Court. Id. at

271a; see also id. at 143a-145a & n.34 (Jones, J., dissenting) (conducting “[r]esearch” into the record to

discuss traceability). But this Court does not grant

certiorari “to review evidence and discuss specific

facts.” United States v. Johnston, 268 U.S. 220, 227

(1925).

This would be a particularly poor case in which to

depart from that practice. The claims here seek to

abate violations of more than 60 different emission

limits and standards. There is an extensive record

relevant to those claims. See Pet. App. 203a n.2

(“1,148 exhibits that span thousands of pages” and

testimony from “25 witnesses”). Given the procedural

history and its familiarity with the record, the district

court “describe[d] the criteria it used to identify the

traceable violations” but did not “list[] each justiciable

violation individually.” Id. at 270a. Its opinion satisfied Federal Rule of Civil Procedure 52(a)(1), see id. at

271a, but does not contain the kind of filtering of

18

factual questions that this Court normally requires

from an appellate opinion before it grants review.

3. The “smoldering rubble” that petitioners see in

the non-precedential en banc opinions stems largely

from disagreement over the resolution of two novel antecedent disputes, not the basic rules governing traceability. Pet. 4.

To start, “[t]he parties dispute what constitutes a

‘claim’ ” under Section 7604(a)(1) of the Clean Air Act

“for purposes of” assessing standing here. Pet. App.

28a (Davis, J., concurring); see also id. at 126a (Jones,

J., dissenting). Because (as all agree) a plaintiff must

establish standing for each claim she raises, the

standing inquiry “often turns on the nature and

source of the claim asserted” even though it is independent of the merits. Warth v. Seldin, 422 U.S. 490,

500 (1975). This is why the judges below noted the

need to resolve the “interaction between Clean Air Act

claims, violations and penalties” to address traceability in this case. Pet. App. 125a (Jones, J., dissenting)

(quotation omitted); see also id. at 11a-12a (Davis, J.,

concurring).

Respondents, for their part, read Section 7604(a)(1)

the same way that this Court read materially identical language in the Clean Water Act. It allows a person to sue for relief from “ongoing violations” of a specific emission standard or limit. Laidlaw, 528 U.S. at

185 (emphasis added); see also 42 U.S.C. § 7604(a) (authorizing a court “to enforce such an emission standard or limitation”). A plaintiff must therefore prove

standing as to each emission limit or standard for

which she seeks relief (whether injunctive or civil penalties). Past violations may be evidence of the likelihood of ongoing or future injury from violations of that

19

standard or limit. See, e.g., Murthy v. Missouri, 603

U.S. 43, 59 (2024). And past violations may be relevant if a court reaches the remedy stage and calculates an appropriate civil penalty. See supra at 3-5

(discussing how evidence of violations, whether preor post-dating the complaint, factors into a civil penalty). But a plaintiff does not (and cannot) seek relief

under Section 7604(a)(1) for purely past violations.

Petitioners—in contrast—offer a brand-new view of

Section 7604(a)(1). They insist (at 18) that when a

person sues under Section 7604(a)(1) and seeks civil

penalties (but not when she seeks an injunction), her

claim is one for relief for past injuries from past violations that may factor into a civil penalty calculation.

As judges below noted, no other court has embraced

(or, it seems, even addressed) petitioners’ view. Pet.

App. 32a (Davis, J., concurring) (“Exxon recognizes

that neither Laidlaw nor other circuit court . . . cases

have applied a violation-by-violation approach to

standing.”); id. at 299a (“[N]o court appears to have”

adopted petitioners’ view.).

There is also a dispute over the proper time frame to

assess standing in a Section 7604(a)(1) case.

On respondents’ view, “the normal standing requirement[s],” Pet. 24, that apply to all suits seeking prospective relief apply to these suits too. Each part of

the inquiry is forward-looking. A plaintiff must show

an “injur[y] or threatened . . . injury as a consequence

of [the] ongoing unlawful conduct” (continually violating an emission standard or limit). Laidlaw, 528 U.S.

at 186. Civil penalties provide redress because they

can “encourage defendants to discontinue current violations and deter them from committing future ones.”

Id.

20

On petitioners’ view, a court must assess some

standing elements prospectively and one element retrospectively. On injury, petitioners seem to agree that

a court looks forward and asks if future violations of

the emission standard or limit may be likely to cause

injury. But as to causation, petitioners argue that a

court must then switch perspective to look backwards

and require a plaintiff to show that “each violation” of

an emission standard or limitation that might factor

into a civil penalty at the remedy stage “likely caused

them a concrete injury.” Pet. 18 (second emphasis

added). As to redressability, the court then has to go

back to looking at the future and apply Laidlaw’s

holding that civil penalties provide forward-looking

redress. No court has endorsed this approach.

Petitioners do not ask this Court to review either of

those antecedent questions, with good reason. There

is no precedential opinion addressing them, other appellate courts have not discussed them, and there is

certainly no split. Respondents would be free to raise

these issues here, as they did below. See Sup. Ct. R.

15.2. Granting review on the first question presented

thus risks forcing this Court to resolve these antecedent questions first, without guidance from developed

appellate opinions. See Pet. App. 11a-12a (Davis, J.,

concurring) (addressing these “issues first given their

broader impact on” the “standing analysis”). “[T]his

mare’s nest could stand in the way of . . . reaching the

question presented . . ., or at the very least, complicate

[its] resolution,” counseling strongly against review.

Arizona v. City & County of San Francisco, 596 U.S.

763, 766 (2022) (Roberts, C.J., concurring) (explaining

a dismissal as improvidently granted).

21

B. Petitioners do not allege a split, none exists,

and the circuits’ approach aligns with this

Court’s cases.

There are yet more reasons to deny review.

1. Petitioners do not allege any circuit split on traceability. None exists. Each circuit to confront how to

assess traceability in a suit seeking to abate ongoing

violations of emission limits has found the same

framework helpful. To sum up the consensus: “[T]he

view of courts” is that “a person injured by air or water

pollution has standing . . . to seek a remedy from a defendant that emits the injurious pollutant in the geographic vicinity of where the person is injured” but

“may lack standing to challenge actions by a too-distant polluter.” Utah Physicians for a Healthy Env’t v.

Diesel Power Gear, LLC, 21 F.4th 1229, 1245, 1246

(10th Cir. 2021). Applying this basic framework,

courts reach outcomes—sometimes a finding of traceability, sometimes not—that reflect the facts at hand.

In Powell Duffryn, the Third Circuit confronted a facility that “consistently and uninterruptedly” unlawfully “dumped pollutants” into a river also polluted by

other sources. Pub. Int. Rsch. Grp. of N.J., Inc. v. Powell Duffryn Terminals Inc., 913 F.2d 64, 69, 72 (3d Cir.

1990), cert. denied, 498 U.S. 1109 (1991). The court

recognized that the “fairly traceable” requirement

does not demand “scientific certainty that defendants’

effluent . . . alone” caused the harm. Id. at 72. But it

does demand that a plaintiff show a “substantial likelihood” that the defendant is causing her injuries by

“discharg[ing] some pollutant” unlawfully, “into a waterway in which [she has] an interest that is or may

be adversely affected by the pollutant,” and that the

pollutant at issue “causes or contributes to the kinds

22

of injuries alleged.” Id. (quotation omitted). This requires more than permit violations: If a plaintiff alleges, for example, that pollution harms her recreational fishing, but “fail[s] to show that [the] defendant’s effluent contains pollutants that harm aquatic

life,” she has not shown traceability. Id. at 72-73.

The Fifth Circuit found that approach “useful” in Cedar Point when it addressed a facility expelling “between 500 to 1200 barrels” of contaminated water into

Galveston Bay daily without a permit. 73 F.3d at 551,

557. Like the Third Circuit, it recognized that the

fairly traceable requirement does not demand “scientific certainty” that a defendant’s unlawful discharges

are the sole cause of the injury at issue. Id. at 558

(quotation omitted). It also recognized that some waterways “may be so large that plaintiffs should rightfully demonstrate a more specific geographic or other

causative nexus” to meet the traceability requirement. Id. at 558 n.24. In the case before it, the plaintiffs tied their injuries to “that part of Galveston Bay

where [the] discharge is located.” Id. (emphasis omitted). In later cases, the Fifth Circuit has held that the

record did not show traceability under this framework. See, e.g., Friends of the Earth, Inc. v. Crown

Cent. Petroleum Corp., 95 F.3d 358, 361 (5th Cir.

1996) (finding a waterway “too large to infer causation

solely from the use of some portion of it” and plaintiffs

had not shown that discharges reached the part they

used).

In Gaston Copper, the Fourth Circuit joined in this

approach. It addressed a facility that discharged pollutants into a river that fed into a lake just a few miles

downstream on a plaintiff’s property. See Friends of

the Earth, Inc. v. Gaston Copper Recycling Corp., 204

F.3d 149, 152 (4th Cir. 2000) (en banc). Like its sister

23

courts, the Fourth Circuit recognized that the fairly

traceable requirement “means it must be likely that

the injury was caused by the conduct complained of”

but does not require proof “to a scientific certainty.”

Id. at 154, 161 (quotation omitted). Instead of “pinpointing the origins of particular molecules,” a plaintiff must “show that a defendant discharges a pollutant that causes or contributes to the kinds of injuries

alleged in the specific geographic area of concern.” Id.

at 161 (quotation omitted). And like other circuits, the

Fourth Circuit distinguished plaintiffs who lie within

the polluter’s discharge zone from “those who are so

far” away “that their injuries cannot fairly be traced

to that defendant.” Id. at 162 (citing cases). It found

traceability because the plaintiffs showed that the discharge could reach the lake and prior testing of the

lake identified metals of the kind the facility discharged. See id. at 161-162.9

The Tenth Circuit followed these courts in Diesel

Power, where defendants removed or bypassed trucks’

required emission controls, increasing nitrogen oxide

and particulate matter pollution in a specific airshed.

21 F.4th at 1238-239. The court recognized that Article III “require[s] proof of a substantial likelihood that

the defendant’s conduct caused plaintiff’s injury.” Id.

at 1242 (quotation omitted). Adopting “the view of

courts in other circuits,” the Tenth Circuit held that

where a defendant “emits the injurious pollutant in

9 The Ninth Circuit also adopted this approach. See Nat. Res.

Def. Council v. Sw. Marine, Inc., 236 F.3d 985, 995 (9th Cir. 2000)

(finding traceability where plaintiffs recreated in an area next to

the defendant’s shipyard and showed that the area “contained

elevated concentrations of pollutants,” the defendant discharged

those “same pollutants,” and the area was “devoid of life” (quotation omitted)), cert. denied, 533 U.S. 902 (2001).

24

the geographic vicinity of where the person is injured,”

the injury can be “fairly traceable to the polluter.” Id.

at 1244-245 (quotation omitted). Noting that Cedar

Point “persuasively discussed” a “need for geographic

limitations as part of the traceability inquiry,” the

Tenth Circuit declined to find traceability for conduct

that could not have affected the airshed that the plaintiffs lived in. Id. at 1246-247.10

And in Academy Express, the First Circuit adhered

to this uniform approach. There, it addressed claims

that a company serially violated bus idling restrictions, exposing plaintiffs to harmful exhaust.

Conservation Law Found., Inc. v. Academy Express,

LLC, 129 F.4th 78, 87 (1st Cir. 2025). Like all other

circuits, the First Circuit did not “requir[e] a conclusive link” to meet the “fairly traceable” requirement.

Id. at 91. It instead followed the “analogous approaches” of its “sister circuits,” finding that “geographic proximity can satisfy traceability in this type

of case.” Id. The First Circuit explained that a plaintiff very close to an emission source can satisfy traceability even if there are similar pollution sources

nearby. See id. But it remanded for consideration of

“how the pollution travels to, and ultimately affects,”

those farther away. Id. at 92.

All of this belies petitioners’ claims of “an ever-growing mountain” of different approaches or “muddled”

tests. Pet. 20, 22 (quotation omitted). There is one

clear approach. Respondents found additional published opinions following that same approach from

10 Petitioners’ view (at 24) that Diesel Power contains some disagreement with the role a geographic nexus has in assessing

traceability is perplexing in light of the decision’s express endorsement and application of considerations of proximity.

25

two circuits. See supra at 23 n.9, 24 (discussing

Southwest Marine and Academy Express). Petitioners’ only evidence of disagreement is a dissent in the

en banc proceedings below questioning whether the

uniform framework should apply to unlawful air emissions. The upshot is that over 35 years, six circuits

adopted the same approach to traceability.11

2. Petitioners claim (at 17) that the courts of appeals’

consensus approach conflicts with decisions from this

Court. There is no conflict.

The circuits’ uniform approach is faithful to this

Court’s precedents. The traceability standard is a familiar one: A plaintiff must show her injury “likely

will be caused by the defendant’s conduct.” Food &

Drug Admin. v. All. for Hippocratic Med., 602 U.S.

367, 382 (2024); Murthy, 603 U.S. at 57 (An injury

must be “fairly traceable to the challenged” conduct.).

Each of the circuits identified and applied that standard. See Powell Duffryn, 913 F.2d at 70 (laying out

the injury, traceability, and redressability requirements); Cedar Point, 73 F.3d at 556 (same); Gaston

Copper, 204 F.3d at 154 (same); Diesel Power, 21 F.4th

at 1241 (same); Academy Express, 129 F.4th at 86

(same).

These cases reflect how—as this Court said last

Term—“standing principles can develop and solidify”

as courts “identif[y] a variety of familiar circumstances where” a defendant’s actions “may be likely to

11 Citing (at 23) two Third Circuit cases (one unpublished) addressing challenges to labor union dues requirements, petitioners suggest that there is disagreement among lower courts about

the relevance of but-for causation to traceability. Whatever the

citations may say about an intra-circuit disagreement elsewhere,

they provide no reason to review the judgment below.

26

cause injury.” All. for Hippocratic Med., 602 U.S. at

384. They did not “blindly expand[]” (Pet. 22) Powell

Duffryn’s basic insight that harmful, unlawful pollution emitted close to a plaintiff can satisfy the fairly

traceable requirement, even if other polluters exist.

See Laidlaw, 528 U.S. at 184 (finding “nothing ‘improbable’ about the proposition that” “continuous and

pervasive illegal discharges of pollutants into a river”

would cause neighbors “to curtail their recreational

use”); see also Pet. App. 80a-81a (Ho, J., concurring)

(explaining how Cedar Point aligns with “well established” Article III principles). Instead, the decisions

acknowledge the limits of that insight, identify common scenarios in which traceability will and will not

be likely to exist, and reach traceability holdings

based on the evidence. “[T]he causation inquiry can

be heavily fact-dependent” and is often resolved “by

comparing the allegations of [a] particular complaint

to . . . prior standing cases,” which is exactly what

these courts have done. All. for Hippocratic Med., 602

U.S. at 384 (quotation omitted).

The circuit courts’ uniform approach also fully adheres to this Court’s admonition that standing not be

dispensed in gross. Petitioners assert that under that

approach, if a person “shows a single harm resulting

from a single violation,” then “liability follows for essentially all [Clean Air Act] violations of the same

kind.” Pet. 20 (quotations and emphases omitted). Of

course not. Plaintiffs must show “standing for each

claim that they press and for each form of relief that

they seek.” TransUnion LLC v. Ramirez, 594 U.S.

413, 431 (2021). If a person seeks to abate harm from

violations of two different emission limits, each represents a distinct claim for which she must show standing.

27

Petitioners’ charges (at 20) of “standing in gross”

rest, at bottom, on their mistaken understanding of a

Section 7604(a)(1) claim. See supra at 18-19 (discussing antecedent issue). These claims do not seek civil

penalties “as compensation for any injuries.” Pet.

App. 32a (Davis, J., concurring). They seek civil penalties to secure “cleaner air in the future.” Id. Using

past violations of the emission standard or limit the

plaintiff “seek[s] to enforce” to calculate a civil penalty

does not grant relief for past violations, so a plaintiff

need not show that every past violation relevant to

that calculation caused her harm. Id. at 34a.

In the end, it is petitioners who would inject “confusion” (at 20) into this area of law. See Pet. App. 69a

(Davis, J., concurring) (“[S]o many of [petitioners’] arguments . . . are directly incompatible with Supreme

Court precedent.”). Petitioners preview no alternative

of their own for assessing traceability, nor do the opinions below. See id. at 82a n.2 (Ho, J, concurring) (‘Tellingly, neither Defendants nor the dissenters call for

Cedar Point to be overturned.”). Article III’s traceability requirement applies across federal cases, so entertaining petitioners’ novel arguments risks destabilizing all cases. This Court should not do so. Cf.

Monsalvo Velazquez v. Bondi, No. 23-929, 2025 WL

1160894, at *12 (U.S. Apr. 22, 2025) (Thomas, J., dissenting) (describing “[c]aution” as “especially important for jurisdictional matters”).

C. There is no pressing need to address the first

question presented.

The two paragraphs in which petitioners attempt to

identify a “need for this Court’s intervention” (at 3435) do not overcome all of the reasons disfavoring review of the first question presented.

28

Petitioners suggest that the Fifth Circuit cannot resolve the divisions among its judges. That is wrong.

If a similar case arises in the circuit again, a future

panel can address the traceability question anew. If

that case warranted further review, the composition

of the en banc court would be different, leaving every

reason to believe the court would reach a decision. See

Pet. App. 2a n.* (noting that Judge Ramirez did not

participate). In any event, “[i]t is primarily the task

of a Court of Appeals to reconcile its internal difficulties.” Wisniewski v. United States, 353 U.S. 901, 902

(1957) (per curiam).

Petitioners also claim that companies in the Fifth

Circuit are vulnerable. They do not try to prove the

point. Nor could they. The civil penalty here represents just 0.04% of just one petitioner’s $33.7 billion

in earnings last year.12 As to other cases, respondents

looked for the numbers that petitioners failed to provide and identified just 14 Clean Air Act suits to stop

ongoing pollution over the last 15 years within the

Fifth Circuit. That lends no support to petitioners’

claim that they need this Court’s protection from the

very people their pollution harms.

II. The Second Question Presented

Does Not Warrant Certiorari.

Petitioners also ask this Court to overrule Laidlaw’s

holding that civil penalties, “[t]o the extent that they

encourage defendants to discontinue current violations and deter them from committing future ones,”

“afford redress to” those people “injured or threatened

12 See News Release, ExxonMobil announces 2024 results (Jan.

31, 2025), exxonmobil.co/4jKOVzp.

29

with injury because “of ongoing unlawful conduct.”

Laidlaw, 528 U.S. at 186. Review is not warranted.

1. Below, petitioners conceded that Laidlaw’s redressability holding is correct. They told the en banc

court that “[c]ivil penalties may have forward-looking

deterrent consequences that can satisfy redressability

in some cases.” Petrs. Supp. En Banc Br. 56; Pet. App.

19a n.65 (Davis, J., concurring) (noting concession).

“Ordinarily, this Court does not decide questions not

raised or resolved in the lower court.” Youakim v. Miller, 425 U.S. 231, 234 (1976).

Instead, before the Fifth Circuit, petitioners argued

only that a civil penalty in this case may not deter

them from violating their permits. See Petrs. Supp.

En Banc Br. 62-63; see also Pet. App. 312a. The courts

below disagreed. See infra at 31. Petitioners have not

sought review of that fact-bound question, which does

not implicate any split. Indeed, they cite no authority

addressing a similar argument.

2. Petitioners are not alone in refraining from questioning Laidlaw’s redressability holding, which would

leave this Court without guidance if it granted review.

Judge Ho was the only judge below to suggest that

this holding be revisited. Even he gave the issue summary treatment: summarizing and agreeing with the

Laidlaw dissent in four paragraphs. Pet. App. 79a.

Nor did Judge Oldham—despite petitioners’ claim—

call this case “a ‘particularly good vehicle to consider’

whether that holding should remain the law.” Pet. 27

(quoting Pet. App. 289a n.3). What he actually said is

that it “appears to be a particularly good vehicle to

consider the contours of Laidlaw’s redressability holding.” Pet. App. 289a n.3 (Oldham, J., dissenting) (emphasis added). That is, he accepted Laidlaw’s holding

30

that civil penalties can redress future harm but asked

if this case was one where the penalty imposed would

actually have a deterrent effect. See also id. at 184a

(Oldham, J., dissenting) (“Laidlaw requires some

showing that this penalty will deter that harm.”).

There is nothing else to guide this Court on the second question presented. No member of this Court has

questioned Laidlaw’s redressability holding. Nor

have courts of appeals. Petitioners point (at 15) to

three concurrences issued just after Laidlaw. But not

one discusses that holding. See Gaston Copper, 204

F.3d at 164 (Niemeyer, J., concurring) (criticizing

Laidlaw’s injury discussion);13 id. at 164-165 (Luttig,

J., concurring) (not specifying his criticism of

Laidlaw); id. at 165 (Hamilton, J., concurring) (same).

3. In any event, review is not warranted because this

Court should not overrule Laidlaw’s redressability

holding. “[T]his Court does not overturn its precedents lightly.” Michigan v. Bay Mills Indian Cmty.,

572 U.S. 782, 798 (2014). “[E]ven in constitutional

cases, a departure from precedent demands special

justification.” Gamble v. United States, 587 U.S. 678,

691 (2019) (quotation omitted). No such justification

exists here.

As noted, Laidlaw’s redressability holding has not

drawn sustained (really, any) criticism. Cf., e.g.,

Loper Bright Enters. v. Raimondo, 603 U.S. 369, 407

13 Judge Neimeyer did not describe Laidlaw’s redressability

holding as an “abrupt” change in law. Pet. 28. That holding was

the law in the Fourth Circuit until that court (mistakenly) saw

Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 106

(1998), as “a superseding contrary decision.” Friends of the

Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 149 F.3d 303, 306

n.4 (4th Cir. 1998), rev’d, Laidlaw, 528 U.S. at 195.

31

(2024) (noting that several Justices had “long questioned” the overruled doctrine). That is because the

holding is neither unworkable nor inconsistent with

this Court’s decisions.

As to workability, petitioners suggest (at 31) that

Laidlaw did not provide enough guidance for lower

courts to identify “a point at which the deterrent effect

of a claim for civil penalties becomes so insubstantial

or so remote that it cannot support” standing.

Laidlaw, 528 U.S. at 186. Additional guidance was

not needed here. The district court thrice issued findings that the “[c]ivil penalties . . . deter future violations,” including “ongoing violations” that occurred

“both before and after the complaint.” Pet. App. 501a

& n.152; see also id. at 229a & n.74, 358a & n.156. The

now-vacated second panel opinion found it “straightforward that [petitioners’] almost three-year postsuit

continuation of wrongdoing establishes redressability,” especially because they took some steps to reduce

pollution in response to this suit. Id. at 312a-313a. If

guidance is needed in a future case, the lower courts

can offer it. There is no need for this Court to address

Laidlaw’s scope before lower courts do so. Indeed, the

second question presented does not even ask this

Court to do so.

As to consistency, petitioners do not identify any decision that undermines Laidlaw’s view that the “congressional determination” about the function civil

penalties serve “warrants judicial attention and respect.” 528 U.S. at 185. Rather, this Court has reiterated that questions of how a remedy will function

involve policy judgments within the legislature’s competence. See, e.g., Egbert v. Boule, 596 U.S. 482, 491

(2022) (“Congress is far more competent than the Judiciary to weigh such policy considerations.”

32

(quotation omitted)). Laidlaw’s redressability holding

also aligns with the consistent view of the Executive

Branch. See EPA, Policy on Civil Penalties 3 (Feb. 16,

1984), bit.ly/4jKrPcn (“The first goal of penalty assessment is to deter.”); Memorandum from Jeffrey B.

Clark, Assistant Attorney General, Re: Equitable Mitigation in Civil Environmental Enforcement Cases 9 &

n.8 (Jan. 12, 2021), bit.ly/430mDvb (“[P]enalty relief”

is necessary for “deterring future wrongdoing.”); U.S.

En Banc Amicus Br. in Supp. of Resps. 9 (“[C]ourts

should normally presume that . . . civil penalties will

make the defendant less likely to violate.”).

Nor is Laidlaw’s redressability holding inconsistent

with this Court’s later decisions. Article III’s redressability standard remains the same as in Laidlaw. See,

e.g., Summers v. Earth Island Inst., 555 U.S. 488, 493,

(2009) (citing Laidlaw for Article III’s requirements);

Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016)

(same). To say otherwise, petitioners cite (at 32) two

concurring opinions, but both describe the redressability requirement exactly as Laidlaw does. Compare

Laidlaw, 528 U.S. at 180-181, 187 (“[A] plaintiff must

show . . . it is likely, as opposed to merely speculative,

that the injury will be redressed.”), with United States

v. Texas, 599 U.S. 670, 692 (2023) (Gorsuch, J., concurring) (same), and id. at 709 (Barrett, J., concurring) (agreeing with the earlier concurrence).

That leaves petitioners’ disagreement with Laidlaw,

which cannot justify review. See, e.g., Kimble v. Marvel Ent., LLC, 576 U.S. 446, 455-456 (2015) (A party

must do more than claim “that the precedent was

wrongly decided.” (quotation omitted)). Petitioners’

criticisms lack merit in any event, as they rely (at 2931) on arguments fully aired in Laidlaw. The Laidlaw

majority explained why civil penalties deter future

33

violations and noted that crafting remedies is a policy

decision for Congress. See Laidlaw, 528 U.S. at 187;

see also Tigner v. Texas, 310 U.S. 141, 148 (1940) (explaining why “the whole problem of deterrence” involves considerations “within legislative competence”). It also explained why its redressability holding aligned with precedent. Compare Pet. 28-29 (discussing Steel Co., 523 U.S. at 106-107, and Linda R.S.

v. Richard D., 410 U.S. 614, 618 (1973)), with

Laidlaw, 528 U.S. at 187-188, 188 n.4 (harmonizing

its holding with those precedents).

4. Petitioners’ dispute with Laidlaw boils down to a

policy disagreement with Congress’s choice to authorize people to seek civil penalties as a form of relief to

protect themselves from unlawful air pollution that

harms them.14 Their policy argument is appropriately

directed to Congress, not this Court. Even so, their

objections are unfounded. Petitioners’ claims, like

other “misperceptions about citizen suits,” lack an empirical basis. David E. Adelman & Jori Reilly-Diakun,

Environmental Citizen Suits & the Inequities of Races

to the Top, 92 U. Colo. L. Rev. 377, 384 (2021). In reality, practical and procedural barriers make it difficult for people to sue. Id. at 381, 421 (reviewing data

on suits and fee awards from 2001 to 2016); see also

David Adelman, Setting the Record Straight on

14 Petitioners gesture (at 31, 33) at Article II concerns. But

Article III’s case-or-controversy requirement obviates any separation-of-powers issue with the civil penalty remedy in Section

7604(a)(1). Cf. TransUnion, 594 U.S. at 429. To the extent that

petitioners assert otherwise, they have failed to “identify . . . with

particularity” any separate Article II argument within the “questions presented.” Laidlaw, 528 U.S. at 197 (Kennedy, J., concurring). Here, just as in Laidlaw, the case provides no basis to

reach any such arguments. See id.; see also Sup. Ct. R. 14.1(a).

34

Environmental Citizens Suits, Envtl. Law Prof Blog

(May 31, 2025), bit.ly/4kLm1Q2 (estimating, based on

the available data, that from “2018 through 2024, a

total of 23 citizen enforcement suits were filed under

the” Clean Air Act). That reality belies petitioners’

claim of “massive” (Pet. 34) consequences for corporations. It does show that in the suits that do proceed,

the consequences for the ordinary people trying to protect their health despite these barriers are very real.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

Erin Glenn Busby

Lisa R. Eskow

UNIVERSITY OF TEXAS

SCHOOL OF LAW

SUPREME COURT CLINIC

727 E. Dean Keeton St.

Austin, TX 78705

David A. Nicholas

Counsel of Record

20 Whitney Rd.

Newton, MA 02460

(617) 964-1548

dnicholas100@gmail.com

Joshua R. Kratka

NATIONAL ENVIRONMENTAL

LAW CENTER

294 Washington St., Ste. 720

Boston, MA 02108

Counsel for Respondents

June 3, 2025