Texans United v. Crown Central Petroleum

• Decision Date: 06 April 2000
• Docket Number: No. 98-21043,98-21043
• Citation: 207 F.3d 789
• Parties: (5th Cir. 2000) TEXANS UNITED FOR A SAFE ECONOMY EDUCATION FUND; NATURAL RESOURCES DEFENSE COUNCIL INC; THE SIERRA CLUB; RANFORD DENOON; RON VAN OSDOL Plaintiffs - Appellants-Cross Appellees, v. CROWN CENTRAL PETROLEUM CORPORATION Defendant - Appellee-Cross Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

Page 789

207 F.3d 789 (5th Cir. 2000)

TEXANS UNITED FOR A SAFE ECONOMY EDUCATION FUND; NATURAL RESOURCES DEFENSE COUNCIL INC; THE SIERRA CLUB; RANFORD DENOON; RON VAN OSDOL Plaintiffs - Appellants-Cross Appellees, v. CROWN CENTRAL PETROLEUM CORPORATION Defendant - Appellee-Cross Appellant.

No. 98-21043

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

April 6, 2000

Appeals from the United States District Court for the Southern District of Texas

Before POLITZ, GARWOOD, and DAVIS Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Two individuals and three environmental organizations (collectively "Texans United") brought this citizens suit under the Clean Air Act, 42 U.S.C. 7401, et seq., seeking declaratory and injunctive relief, civil penalties and costs against Crown Central Petroleum Corporation ("Crown") for violations of emission standards for hydrogen sulfide and sulfur dioxide that occurred at its Pasadena, Texas refinery. The district court granted Crown's motion for summary judgment on grounds that an administrative proceeding instituted by a Texas agency precluded their suit. For the reasons that follow, we reverse and remand.

I. FACTUAL AND PROCEDURAL BACKGROUND

Texans United allege that Crown violated the Clean Air Act ("CAA") by exceeding the federally-prescribed limits for releases of sulfur dioxide into the atmosphere and for burning fuel gas containing hydrogen sulfide. ¹ Specifically, Texans United's complaint alleges that Crown violated the federal emissions standards for sulfur dioxide and hydrogen sulfide, 40 C.F.R. 60.104(a)(1) and (a)(2), as well as a number of operating and record keeping requirements. Texans United also complain that Crown has failed to comply with an administrative order and certain permits issued by the Texas Natural Resource Conservation Commission ("TNRCC").²

Crown operates a petroleum refinery in Pasadena, Texas. Those parts of Crown's refinery that emit sulfur dioxide must comply with Subpart J of the New Source Performance Standard ("NSPS"), which regulates sulfur dioxide and other emissions from refineries. 40 C.F.R. Subpart J. Among other things, Subpart J limits the concentration of sulfur dioxide that a refinery may emit and the concentration of hydrogen sulfide that can be present in gas burned at a refinery. 40 C.F.R. 60.104(a)(1) and 60.104(a)(2)(i).

For many years, Crown's refinery regularly exceeded the emissions limits. In 1995, Crown, without admitting any violations, signed an Agreed Order ("1995 Agreed Order") that settled and concluded a TNRCC administrative enforcement action. That order required Crown to pay a penalty of $110,000 for violations from March 31, 1991 through August 8, 1993, and to implement measures to comply with the law.³

According to Texans United, Crown's own certified monitoring reports indicate that Crown has exceeded the federal limits on sulfur dioxide and hydrogen sulfide for 15,000 ⁴ hours from May 1992 through March 31, 1998. The refinery has experienced major process upsets ⁵ nearly every month, which resulted in the release of hundreds of tons of excess sulfur dioxide into the air at its Pasadena plant. Texans United reside and travel near Crown's refinery, breathe the air that contains Crown's emissions, and complain about the odors and other effects of these emissions.⁶

In May 1997, Texans United notified Crown and TNRCC of their intent to sue Crown for continuing violations. On July 10, 1997, TNRCC wrote a letter to Crown stating its intent to commence an enforcement action if Crown did not comply. Texans United filed their complaint in the district court on July 21, 1997, alleging violations from May 16, 1992 through December 14, 1996. In September 1997, Texans United notified Crown of their intent to allege additional violations for the period after December 14, 1996.

TNRCC commenced an administrative action on November 25, 1997, because of Crown's violations of the 1995 Agreed Order and other regulatory requirements. In December 1997, the citizens filed an amended complaint in the district court alleging additional violations from December 14, 1996 through September 30, 1997. On August 25, 1988, TNRCC and Crown reached a negotiated administrative consent order ("1998 Agreed Order") that required Crown, inter alia, to pay penalties of $1,055,425 and retain two independent expert consultants to review the operations of the entire plant, evaluate the causes of historic violations, and to recommend to the TNRCC additional remedial actions that Crown should take.

Crown filed two different motions for summary judgment based upon: (1) statutory preclusion; and (2) the standing requirements of Article III of the U.S. Constitution. Texans United filed a cross motion for summary judgment. The district court granted Crown's statutory preclusion motion on the ground that TNRCC's administrative enforcement actions against Crown precluded Texans United's suit. The court denied as moot Crown's motion for summary judgment predicated on Texans United's lack of standing. The court also denied Texans United's cross motion for summary judgment.

Texans United appealed and Crown filed a "conditional" notice of appeal challenging the court's denial as moot of its motion for summary judgment on standing.

II. STANDING

The district court dismissed Texans United's suit on the grounds of statutory preclusion without resolving the issue of Texans United's standing. As a threshold matter of jurisdiction, however, we must determine whether Texans United have standing. Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 101-02, 118 S.Ct. 1003, 1016, 140 L. Ed.2d 210 (1998) (holding that a court must not "resolve contested questions of law when its jurisdiction is in doubt.").

An association has standing to bring a suit on behalf of its members when: 1) its members would otherwise have standing to sue in their own right; 2) the interests it seeks to protect are germane to the organization's purpose; and 3) neither the claim asserted nor the relief requested requires the participation of individual members. Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977); Friends of the Earth, Inc. v. Chevron Chemical Co., 129 F.3d 826, 827-28 (5th Cir. 1997). The individual plaintiffs can satisfy their constitutional requirement of standing by demonstrating that: 1) they have suffered an actual or threatened injury; 2) the injury is "fairly traceable" to the defendant's action; and 3) the injury will likely be redressed if the plaintiff prevails in the lawsuit. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992); Friends of the Earth, Inc., v. Crown Central Petroleum, 95 F.3d 358, 360 (5th Cir. 1996). We address each of these requirements below.

A. "Injury in Fact"

Texans United submitted a number of affidavits, from the individual plaintiffs and its organizational members who reside in the Pasadena area (collectively "Affiants"). These Affiants state that they have suffered repeated exposure to sulfurous odors while in the home, in the yard, or driving through town. They generally describe these sulfurous odors as overpowering and capable of inducing physical discomfort. Based on these affidavits, Texans United argue that their enjoyment of their surroundings has been severely diminished and that, therefore, they have demonstrated a cognizable injury.

The Ninth Circuit has held that breathing and smelling polluted air is sufficient to demonstrate injury-in-fact and thus confer standing under the CAA. See NRDC v. EPA, 507 F.2d 905, 910 (9th Cir. 1974) (holding that there is no doubt that a plaintiff will suffer injury if compelled to breathe air less pure than that mandated by the Clean Air Act). Crown, although it does not concede that Texans United have suffered injury-in-fact, has cited no contrary authority nor has it offered persuasive analysis that challenges Texans United's assertions of injury-in-fact. We therefore conclude that Texans United have satisfied the "injury in fact" requirement for standing.

B. Traceability

Texans United argue that eyewitness and expert evidence demonstrates that their injuries are traceable to Crown's sulfur dioxide pollution in the community. Texans United's eyewitness accounts of traceability include testimony by the Affiants that they are able to trace the sulfur pollution they smell to Crown based on their direct observations of smoke and on their familiarity with Crown and other industries in the area. In addition, Texans United assert that these observations are confirmed by Crown's own personnel who conducted surveys of sulfur odors during periods of admitted noncompliance when they detected sulfur odors in the plaintiffs' community on at least four occasions. Finally, Texans United presented expert evidence relating to two process upsets at Crown. ⁷ According to the results of the expert's model, both upsets released several tons of sulfur dioxide into the ambient air and produced pollution concentrations that would have been detectable by some of the plaintiffs at their residences.

Crown argues that the "fairly traceable" standard cannot be satisfied in this case unless Texans United's injuries are linked to the exact dates where violations of regulatory standards are known to have occurred.

We disagree with Crown's proposed test for traceability because it conflates the issue of standing with the issue of actual liability. No relevant case law supports Crown's argument that Texans United must connect the exact time of their injuries with the exact time of an alleged violation by Crown. Texans United presented circumstantial evidence, that includes: (1) Affiants' testimony that they observed smoke from Crown's plant in their neighborhood at the same time that they smelled sulfurous odors, (2) expert evidence that demonstrates that on certain days when Crown experienced process upsets, excess sulfur dioxide...