Did the 5th Circuit Just Make Standing Much More Difficult?

Last week, the 5th Circuit Court of Appeals vacated a $20M penalty imposed on ExxonMobil for Clean Air Act violations at its Baytown facility, remanding the case for a more particularized review by the District Court regarding whether the plaintiffs have demonstrated that they have standing with respect to all of the violations committed by ExxonMobil.  The Court held that it is not enough to show that each of the claims in the complaint are traceable to ExxonMobil’s conduct.  Instead, the plaintiffs must demonstrate that they have suffered harm traceable to the violations committed by ExxonMobil.

As an initial matter, I think that the Court erred when it rejected the plaintiffs argument that the law of the case precluded the court from reexamining standing.  In the first go-round, the District Court declined to impose a penalty and 5th Circuit reversed.  This time around, the plaintiffs pointed out that, since standing is jurisdictional, the prior 5th Circuit panel must have made a finding that plaintiffs have standing.  The current panel concluded that this was too thin a read on which to make a law of the case finding.  To me, given the black letter nature of the rule that a Court must always determine that whether it has jurisdiction, even if not raised by the parties, the only way that the recent panel could rule against the plaintiffs was by concluding that the original panel had essentially committed judicial malpractice.  I would be loath to do so were I an appellate judge.

In any case, Inside EPA (subscription required) is now speculating as to how high the Court has “raised the bar” for standing.  The jury, as they say, is still out on that one.  The Court took great pains to emphasize that it was not requiring an individualized finding for every single violation.  For example, it noted that any violation resulting from flaring would support standing, because flaring is visible from outside the facility; plaintiffs need not provide that they actually witnessed any particular flaring event.

Overall, I think that the Court struck a reasonable balance.  It may be difficult to establish standing for some truly trivial violations, but plaintiffs here – and, more importantly, future plaintiffs – should be able to establish standing for any significant CAA violations.  Plaintiffs’ bigger concern has to be whether a 5th Circuit now heavily salted with Trump appointees might at some point take up the suggestion of the concurrence that the court in the right case should meet en banc and clean up the “mess” that is the 5th Circuit’s standing jurisprudence.

Until then, I think that environmental plaintiffs should treat this case as sui generis.  As I previously asserted, Baytown is just “too big to comply.”