Louisiana Environmental Action Network et al v. Exxon Mobil Corp.

Filing 140

RULING denying 92 Motion for Summary Judgment on Standing and granting 96 Second Motion for Summary Judgment on Standing. Signed by Chief Judge Shelly D. Dick on 8/9/2018. (SWE)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

LOUISIANA ENVIRONMENTAL
ACTION NETWORK AND
STEPHANIE ANTHONY

CIVIL ACTION

VERSUS

16-144-SDD-RLB

EXXON MOBIL CORP. d/b/a
EXXONMOBIL CHEMICAL CO.

RULING
This matter is before the Court on the Motion for Summary Judgment on Standing1
filed by Defendant Exxon Mobil Corp. d/b/a ExxonMobil Chemical Co. (“Defendant” or
“ExxonMobil”) and the Second Motion for Summary Judgment on Standing2 filed by
Plaintiffs, Louisiana Environmental Action Network (“LEAN”) and Stephanie Anthony
(“Anthony”) or (“Plaintiffs”). Each party has filed an Opposition3 to the respective crossmotions, and Plaintiffs filed a Reply.4 Plaintiff previously moved for summary judgment
on standing,5 and the Court denied the motion finding that, while Plaintiffs had
demonstrated injury-in-fact that was fairly traceable to Defendant’s alleged conduct,
Plaintiffs failed to carry their burden of demonstrating redressability.6 Thus, the crossmotions now before the Court are limited to the issue of redressability. For the following

1

Rec. Doc. No. 92.
Rec. Doc. No. 96.
3
Rec. Doc. Nos. 103 & 108.
4
Rec. Doc. No. 113.
5
Rec. Doc. No. 43.
6
Rec. Doc. No. 83.
2

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reasons, the Court finds that Plaintiffs have carried their burden of demonstrating
redressability and are entitled to summary judgment on standing.
I.

FACTUAL BACKGROUND
This lawsuit was brought by Plaintiffs pursuant to the Clean Air Act’s citizen suit

provision.7 The Defendant has operated a chemical manufacturing facility in Baton
Rouge, Louisiana since the 1940s which is regulated by the CAA.

The Louisiana

Department of Environmental Quality (“LDEQ”) has issued to the facility several operating
permits pursuant to Louisiana’s Part 70 permitting program which implements Title V of
the CAA.
Between 2008 and 2013, the LDEQ issued Consolidated Compliance Orders and
Notices of Potential Penalties and initiated administrative enforcement proceedings
pursuant to the Louisiana Environmental Quality Act (“LEQA”) against Defendant based
on alleged violations of federal and state environmental statutes, regulations, and permits
at Defendant’s facility, including the CAA and LEQA permits issued. On December 31,
2013, the Defendant and the LDEQ entered into a $2.3 million Settlement Agreement and
Stipulated Penalty Agreement (“Settlement Agreement”)8 which resolved the orders and
established stipulated penalties for future violations occurring on or after January 1, 2013.
Defendant contends the alleged violations in this action are subject to the terms of this
Settlement Agreement. Defendant points specifically to the following provisions:
Respondent, in addition to the payment of civil penalties, performance of
injunctive relief (i.e. SPCC projects), and implementation of the beneficial
environmental projects (BEPs) required by this agreement, agrees that for
any violation(s) occurring on or after January 1, 2013, and which are not
resolved through this Settlement Agreement, such violations shall be
7
8

42 U.S.C. § 7604(a)(1).
Rec. Doc. Nos. 49-1, 49-2, 49-3, & 49-4.

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subject to and resolved pursuant to the terms and conditions of the "LDEQ
and ExxonMobil Stipulated Penalty Agreement" (Attachment O).9
* * *
For failure to conduct routine testing, monitoring, and/or sampling per site
per equipment per analyzer: $100 per specified period beyond the
scheduled testing or monitoring date, but may not exceed $1,000 per event.

For failure to submit test results within the required time frame specified in
the applicable Title V permit and/or the applicable federal/state regulations:
$100 per test result submitted beyond the required time frame.
For failure to include all required information on testing and/or monitoring
records: $100 per item omitted.10
Plaintiffs filed this suit asserting two causes of action: (1) the Facility emitted air
pollutants in excess of permitted limits; and (2) the Defendant submitted unauthorized
discharge reports (“UAD”s) that did not contain all of the information required by Louisiana
law.

The Parties now move for summary judgment on standing with respect to

redressability.
II.

LAW AND ANALYSIS
A. Summary Judgment Standard
“The court shall grant summary judgment if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.”11 “When assessing whether a dispute to any material fact exists, we consider all
of the evidence in the record but refrain from making credibility determinations or weighing
the evidence.”12 A party moving for summary judgment “must ‘demonstrate the absence

9

Rec. Doc. No. 49-1, p. 50.
Rec. Doc. No. 49-4, p. 50; Attachment O, p. 11 of 17.
11
Fed. R. Civ. P. 56(a).
12
Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008).
10

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of a genuine issue of material fact,’ but need not negate the elements of the nonmovant’s
case.”13 If the moving party satisfies its burden, “the non-moving party must show that
summary judgment is inappropriate by setting ‘forth specific facts showing the existence
of a genuine issue concerning every essential component of its case.’”14 However, the
non-moving party’s burden “is not satisfied with some metaphysical doubt as to the
material facts, by conclusory allegations, by unsubstantiated assertions, or by only a
scintilla of evidence.”15
Notably, “[a] genuine issue of material fact exists, ‘if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.’”16 All reasonable factual
inferences are drawn in favor of the nonmoving party.17 However, “[t]he Court has no
duty to search the record for material fact issues. Rather, the party opposing the summary
judgment is required to identify specific evidence in the record and to articulate precisely
how this evidence supports his claim.”18 “Conclusory allegations unsupported by specific
facts … will not prevent the award of summary judgment; ‘the plaintiff [can]not rest on his
allegations … to get to a jury without any “significant probative evidence tending to
support the complaint.”’”19

13

Guerin v. Pointe Coupee Parish Nursing Home, 246 F.Supp.2d 488, 494 (M.D. La. 2003)(quoting Little
v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)(en banc)(quoting Celotex Corp. v. Catrett, 477 U.S.
317, 323-25, 106 S.Ct. at 2552)).
14
Rivera v. Houston Independent School Dist., 349 F.3d 244, 247 (5th Cir. 2003)(quoting Morris v. Covan
World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998)).
15
Willis v. Roche Biomedical Laboratories, Inc., 61 F.3d 313, 315 (5th Cir. 1995)(quoting Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
16
Pylant v. Hartford Life and Accident Insurance Company, 497 F.3d 536, 538 (5th Cir. 2007)(quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).
17
Galindo v. Precision American Corp., 754 F.2d 1212, 1216 (5th Cir. 1985).
18
RSR Corp. v. International Ins. Co., 612 F.3d 851, 857 (5th Cir. 2010).
19
Nat’l Ass’n of Gov’t Employees v. City Pub. Serv. Bd. of San Antonio, Tex., 40 F.3d 698, 713 (5th Cir.
1994)(quoting Anderson, 477 U.S. at 249).

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B. Redressability
For a party to have standing to sue in federal court, the Constitution requires that
three elements be met. A plaintiff must have suffered an injury in fact, that injury must be
fairly traceable to the defendant, and “it must be ‘likely,’ . . . that the injury will be
‘redressed by a favorable decision.’”20
The CAA provides that no civil suit “may be commenced. . . if the Administrator or
State has commenced and is diligently prosecuting a civil action in a court of the United
States [ ] to require compliance . . .”21 In its prior Ruling, the Court questioned whether
the Settlement Agreements between Defendant and LDEQ fell within this provision,
rendering Plaintiffs’ claims precluded and thus not redressable. However, Fifth Circuit
precedent states that administrative settlements are not encompassed within this
provision of the CAA: “[T]he plain meaning of ‘court of the United States or a State’
excludes administrative actions.”

22

Following this rationale, the Court finds that the

Settlement Agreements in this case do not preclude Plaintiffs’ claims as they are only
administrative actions rather than “a civil action in a court of the United States or a
State.”23
In the present case, Plaintiffs seek injunctive and declaratory relief and civil
penalties to be used for a beneficial mitigation project.24

Plaintiffs argue that the

20

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (quoting Simon v. Eastern Kentucky Welfare
Rights Org., 96 S. Ct. 1917 (1976)).
21
42 U.S.C. § 7604(b)(1)(B).
22
Texans United for a Safe Econ. Educ. Fund v. Crown Cent. Petroleum Corp., 207 F.3d 789, 795 (5th Cir.
2000)(holding that the environmental group, Texans United, was not statutorily precluded from its civil
claims notwithstanding an administrative settlement between a Texas state environmental agency and the
defendant which predated the suit and further administrative actions undertaken after suit was filed).
23
42 U.S.C. § 7604(b)(1)(B).
24
Rec. Doc. 103, p. 5-6.

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Settlement Agreements constitute “penalties previously assessed for the same violation”
to be considered by the Court in determining a penalty amount after ruling on the merits.25
This provision of the CAA clearly contemplates the possibility of redressability in spite of
an administrative settlement because the statute instructs the Court to consider these
types of settlements when deciding what remedies to grant in an enforcement action like
this one.
The forms of relief Plaintiffs seek herein would be “sanction[s] that effectively
abate. . .[illegal] conduct and prevent its recurrence.”26 Plaintiffs have offered proof that
Defendant continues to violate the CAA, and they seek additional penalties and injunctive
relief outside of the Settlement Agreements with LDEQ. While Defendant cites numerous
cases for the proposition that LDEQ would be undermined by allowing citizen suits such
as Plaintiffs’, these cases do not address the issue of redressability and often do not
involve the CAA or the sort of continuous violations alleged in this case.
Ultimately, the Defendant cannot escape the Fifth Circuit’s decision in Texans
United v. Crown Central Petroleum Corporation,27 wherein several environmental
organizations brought a citizen suit under the Clean Air Act. The defendant argued that
the plaintiffs' injuries were not redressable because a state agency had already obtained
all necessary relief through an agreed order.28 The Fifth Circuit noted that the lawsuit
was based on the premise that the agreed order did not “go far enough to ensure that
[the defendant would] not violate federal emissions standards in the future,” and that the

25

42 U.S.C. § 7413(e)(1).
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 185-86 (2000).
27
207 F.3d 789.
28
Id. at 793.
26

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evidence presented by the plaintiffs supported that premise.29 The court held: “[C]itizen
suitors have standing to seek civil ‘penalties for violations that are ongoing at the time of
the complaint and that could continue into the future undeterred.’”30 Thus, the plaintiffs
had standing to sue, regardless of the state agency's prior enforcement action.31
The Court finds that the same reasoning and analysis apply here. Plaintiffs’ suit is
premised upon the theory that LDEQ’s actions are insufficient to ensure that the
Defendant will not continue to violate the CAA.

Further, based on the Settlement

Agreement,32 which contemplates future violations, and the unauthorized discharge
reports Defendant has submitted, the Court finds that unauthorized discharges have
continued since the settlement and could potentially continue in the future. Accordingly,
the Court finds that Plaintiffs have demonstrated standing to bring this citizens suit.
III.

CONCLUSION
For the reasons set forth above, the Defendant’s Motion for Summary Judgment

on Standing33 is DENIED.

Plaintiffs’ Second Motion for Summary Judgment on

Standing34 is GRANTED.
IT IS SO ORDERED.
Baton Rouge, Louisiana, this 9th day of August, 2018.

S

________________________________
SHELLY D. DICK, CHIEF DISTRICT JUDGE
MIDDLE DISTRICT OF LOUISIANA
29

Id. at 794.
Id. (quoting Friends of the Earth, 528 U.S. at 169).
31
Id.
32
Rec. Doc. No. 49-4, Attachment O.
33
Rec. Doc. No. 92.
34
Rec. Doc. No. 96.
30

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