Updated, Wednesday, 2:45 p.m.:
U.S. District Judge Walter Smith of the Western District of Texas ruled against the Sierra Club from the bench in Waco on Wednesday. The Sierra Club was suing Luminant Generation Company for allegedly overpolluting at its Big Brown coal plant in Fairfield. Smith's office said that a written conclusion would be filed at a later date.
Starting Monday, a federal judge in Waco will hear arguments from the Sierra Club that Luminant Generation Company, the state’s largest electric generator, has been spewing far more pollution into the air from an East Texas coal plant than is allowed by federal and state law.
The case is one of at least three high-profile lawsuits that are being heard in federal court this year in which environmental groups in Texas have taken matters into their own hands. They are suing industries for excess pollution directly, rather than relying on the government to take action. And although such “citizen suits” have been permitted since the beginning of environmental regulation in the United States decades ago, they could become more common as agencies like the Environmental Protection Agency are increasingly scrutinized by politicians and the industry, and they continue to suffer from budget cuts.
“Historically, there has been an uptick in citizen suit filings when there is something of a slowdown in enforcement,” said Matthew Morrison, an environmental lawyer based in Washington, and a former counsel for the EPA. If the agency is not aggressive enough on its own, Morrison said, “citizen suits may happen more often.”
In Texas, frustration from environmental groups stems from what they say is inaction on the federal and state level. Luke Metzger, director of Environment Texas, said the group decided to sue ExxonMobil after “years and years” of asking the Texas Commission on Environmental Quality to take action. “Going through the courts is our best option. It’s kind of our last option,” Metzger said. The trial for that case began in Houston this month and is continuing.
In court filings, defendants in each case say they are allowed to emit excess pollution during exceptional events. ExxonMobil also said it has been fined about $100,000 for violations in recent years by the Texas commission. Environment Texas and the Sierra Club, which is also a plaintiff in the suit, are demanding that ExxonMobil pay far more — as much as $37,500 for each day that excess emissions occurred. The Sierra Club has made the same demand in another lawsuit against Luminant for its operation of a second coal plant. That trial will begin in Texarkana later this year.
More transparency from the state has also made a difference. While Metzger’s group says that ExxonMobil’s Baytown complex has over-polluted for decades, a lawsuit against the company became more feasible after the Texas agency began posting emissions reports on its website a few years ago, he said.
Luminant declined to comment for this article, and an ExxonMobil spokesman said the company has invested more than $1.3 billion in environmental upgrades at its Baytown facilities since 2000. According to court filings, neither company disputed the data on emissions that was presented in the lawsuits — after all, it comes from their own reports to the state — but the companies vehemently denied that they were violating the law.
Both argued that such emissions breaches were allowed during what are called maintenance, start-up and shutdown events. The companies said they had done everything necessary under federal and state law to minimize breaches, which they said were unavoidable.
Such an argument, which is known as affirmative defense, is commonly used to avoid penalties for excessive emissions. But after decades of broadly allowing the use of such an argument, the EPA has proposed eliminating the opportunity for industries to use it during “planned” start-up and shutdown operations. They would only be able to use that argument for “unplanned” periods of malfunction.
“It’s now become kind of an enforcement priority for the agency to look at cases where there is noncompliance and there may not be an exception that protects them,” said Morrison, the former EPA lawyer. “At some point, the agency will say, ‘You know what, buddy? That’s not a malfunction. If you’re having them that frequently, it’s probably unfair for you to keep calling them that, and we’re going to come after you.’”
The idea has prompted outrage from companies like Luminant, which say they would be forced to spend tens of millions of dollars on pollution control equipment, which is notoriously difficult to keep operating while also starting up or shutting down a facility. Environmentalists are not happy either, in part because states can get around the change by imposing higher emissions thresholds for such events.
The EPA has postponed making a final decision on the proposal until June, and is almost sure to be challenged in court, no matter what it decides. Both Luminant and environmental groups have already sued the EPA for imposing similar changes just to Texas law. While a federal judge rejected both plaintiffs’ arguments last year, and the Supreme Court declined to hear an appeal, the agency is now considering making sweeping changes in dozens of other states. The heads of Texas’ utility regulatory and environmental agencies have said in public comments that the proposal does not take into account its possible effect on the reliability of the state’s electric grid.
In the meantime, citizen suits challenging exceptions to pollution limitations are likely to continue — and both plaintiffs and defendants may be more aggressive. While the vast majority of citizen groups reach a settlement before reaching the bench, that is not the case with any of the three lawsuits that federal judges are to hear in Texas in the coming months. All are going to trial.
“I’m really surprised to hear that,” said Thomas McGarity, a professor of environmental law at the University of Texas at Austin. Defendants usually settle because “it’s usually so obvious that they’ve been violating the law, and they don’t want to take the hit.”
In recent years, Chevron Phillips and Shell have agreed to settle, rather than go to trial, after environmental groups in Texas filed citizen suits against them for pollution violations. Al Armendariz, a former EPA official who resigned after a two-year-old video surfaced of him telling a group of Texans that the EPA should “crucify” polluters as a deterrent, said he hopes ExxonMobil and Luminant decide to do the same.
“These facilities are all enjoying the Texas economic boom,” said Armendariz, who now works for the Sierra Club. “You can make the investments, clean up the environment, comply with the law and still make lots of money for your shareholders.”