UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 98-21043
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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.
____________________________________________
Appeals from the United States District Court
for the Southern District of Texas
___________________________________________
April 6, 2000
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.
1
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
1
Burning hydrogen sulfide yields sulfur dioxide.
2
TNRCC is the State agency primarily responsible for
enforcing the CAA in Texas.
2
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 15,0004 hours from May 1992
through March 31, 1998. The refinery has experienced major process
upsets5 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
3
Crown installed monitoring and process control equipment at
a cost exceeding $17,000,000.
4
15,000 hours = 625 days.
5
According to Texans United, Crown’s Pasadena plant’s process
upsets and shutdowns are caused by systemic corrosion in the Sulfur
Recovery Unit. Texans United argue that Crown should emulate other
refineries and install a backup Sulfur Recovery Unit.
6
Sulfur dioxide and hydrogen sulfide are both extremely
hazardous gases with pungent odors often described as similar to
rotten eggs and burnt matches. American Lung Assn. v. EPA., 134
F.3d 388, 389 (D.C. Cir. 1998). The EPA has listed both sulfur
dioxide and hydrogen sulfide as extremely hazardous substances. 40
C.F.R. Part 355, App. A.
3
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.
4
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.
5
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
6
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
7
Texans United’s expert studied two process upsets at Crown,
of the type that Texans United claim occur nearly every month at
the refinery.
7
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 emissions
were detectable in the neighborhood where some of the plaintiffs
reside; and (3) evidence that demonstrated the frequency with which
Crown exceeded the federal limits on sulfur dioxide emissions at
its Pasadena plant. We agree with Texans United that this evidence
sufficiently demonstrates that the injuries Texans United complain
of are “fairly traceable” to Crown’s emissions.
Moreover, we disagree with Crown's assertion that Texans
United must, at this stage, establish that Crown violated the CAA
on the occasions that Affiants suffered harm from the Crown
emissions. Although, Texans United must ultimately establish
causation if they are to prevail on the merits, they need not do so
to establish standing. Therefore, we conclude that Texans United
have demonstrated that their injuries are "fairly traceable" to
Crown's pollution based on plaintiffs’ evidence outlined above.
C. Redressability
Finally, Texans United must demonstrate that the injunction
and penalties they have requested are capable of redressing their
injuries. Crown argues that Texans United's injuries will not be
redressed by an injunction requiring Crown to cease its violations
8
because: (1) an injunction against Crown will not reduce pollution
from other sources not before this Court; and (2) the TNRCC has
already obtained all necessary relief against Crown through its
1998 Agreed Order. Crown argues further that absent a credible
claim for injunctive relief, Texans United’s claims for civil
penalties cannot alone remedy the alleged injuries.
Crown's first argument is not supported by the law in this
Circuit. In Sierra Club v. Cedar Point Oil, 73 F.3d 546, 550 (5th
Cir. 1996), an environmental group filed a citizen suit under the
Clean Water Act (“CWA”) against Cedar Point Oil (“Cedar point”)
seeking to prevent discharges of produced water into Galveston Bay.
Cedar Point challenged whether plaintiff’s injuries were traceable
to Cedar Point’s discharge because of the number of entities
discharging chemicals into the bay. Id. at 558. This Court held
that “it is sufficient for [plaintiff] to show that Cedar Point’s
discharge of produced water contributes to the pollution that
impairs [plaintiff’s] use of the bay.” Id. Moreover, this Court
affirmed the district court’s entry of a modified injunction
against Cedar Point. Id. at 579. Thus, under Cedar Point Oil, an
injunction may be appropriate even if it will not prevent all
discharges of the pollutants affecting the plaintiff.
Texans United vigorously dispute Crown’s second argument that
TNRCC has taken all the necessary action to bring Crown’s refinery
into compliance. Both the EPA and Harris County firmly opposed
TNRCC's settlement with Crown in the 1998 Agreed Order. Moreover,
Texans United produced a detailed expert report demonstrating that
9
TNRCC's remedies were inadequate, as well as affidavits from a
former Crown operator and Harris County engineer demonstrating that
Crown should install and operate a backup sulfur recovery unit to
achieve and maintain compliance. Finally, throughout these
proceedings, Crown has never demonstrated that it has achieved
compliance with the federal emission limits for sulfur dioxide.
Assuming arguendo that Texans United can prove at trial that they
have suffered injuries, an injunction requiring Crown to cease its
violations will--at least in part--redress these injuries.
Texans United also argue that civil penalties will redress
their injuries by deterring Crown from violating federal air
pollution standards. In a recent CWA case, the Supreme Court held
that citizen 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.” Friends of the Earth
v. Laidlaw Envtl Serv’s, Inc., --- U.S. ---, 120 S.Ct. 693, 707-08,
--- L.Ed.2d --- (2000). Texans United’s lawsuit is based on the
premise that the 1998 Agreed Order does not go far enough to ensure
that Crown will not violate federal emissions standards in the
future. The summary judgment evidence supports this premise.
For the above reasons we conclude that Texans United have
produced sufficient evidence to demonstrate standing to seek
injunctive relief and civil penalties under the CAA. See id.
III. STATUTORY PRECLUSION
This Court reviews de novo a district court’s grant of summary
judgment on the issue of statutory preclusion. See Urbano v.
10
Continental Airlines, Inc., 138 F.3d 204, 205 (5th Cir. 1998).
The district court concluded that 42 U.S.C. § 7604 precluded
this action. That statute provides in part that:
No action may be commenced–
(1) under subsection (a)(1) of this Section–
...
(B) if the Administrator or State has
commenced and is diligently prosecuting a
civil action in a court of the United States
or a State to require compliance with the
standard, limitation, or order, but in any
such action in a court of the United States
any person may intervene as a matter of right.
42 U.S.C. § 7604(b)(1)(B) (emphasis added).
In holding that TNRCC’s administrative action precluded the
instant suit, the district court rejected Texans United's argument
that the plain meaning of the terms "civil action" and "court" do
not include administrative or non-judicial proceedings. Instead,
the district court adopted the Third Circuit's interpretation of §
7604(b) and held that the term "court" is not limited to judicial
tribunals; and that an administrative agency can be considered a
"court" under § 7604(b) if it has the power to accord relief that
is the "substantial equivalent" to that available in federal courts
under the CAA. See Baughman v. Bradford Coal Co., 592 F.2d 215,
217-19 (3d Cir.), cert. denied, 441 U.S. 961 (1979).
The district court found substantial equivalence in the remedy
the TNRCC could accord litigators to remedies a court could award
under the CAA. For example, TNRCC could assess a penalty, could
issue compliance orders, and could allow citizen participation
through a written comment period and a public hearing at which the
citizens could speak.
11
Texans United argue that the district court should have
followed the Second and Ninth Circuits which hold that the plain
language of § 505(b) of the CWA gives preclusive effect only to a
“civil action,” brought in a “court.” The relevant language in §
505(b) of the CWA is identical to the language in § 7604(b) of the
CAA.8
In Friends of the Earth v. Consolidated Rail Corp., 768 F.2d
57, 59 (2d Cir. 1985) (“Conrail”), plaintiffs brought a suit under
the CWA alleging that Consolidated Rail Co. violated its discharge
permits. The Second Circuit considered whether enforcement actions
by the New York State Department of Environmental Conservation
against Consolidated Rail Co. precluded citizen suits under §
505(b) of the CWA. Id. at 58. The court disagreed with Baughman
and held that, based on the plain language of CWA § 505(b), it
would be inappropriate to expand “action in a court of the United
States, or a State” to include administrative enforcement actions.
Id. at 62.
The Ninth Circuit in adopting the holding in Conrail, noted
that section 505(b) “does specifically refer to ‘courts,’ and ...
8
Section 505 of the CWA is a citizen suit provision
specifically modeled on CAA section 304. Under CWA section 505(b),
“[n]o action may be commenced ... if the Administrator or State has
commenced and is diligently prosecuting a civil or criminal action
in a court of the United States, or a State ....” 33 U.S.C. §
1365(b)(1)(B). An amendment added a separate provision explicitly
granting preclusive effect to certain administrative penalty
actions. See Pub. L. 100-4 § 314(a), 101 Stat. 7 (Feb. 4, 1987)
(codified at 3 U.S.C. § 1319(g)(6)(A)). Since the Second and Ninth
Circuit decisions discussed above predate the 1987 amendment, the
analysis therein is directly applicable to the interpretation of
CAA § 304.
12
makes no direct or veiled reference to any type of administrative
proceeding.” Sierra Club v. Chevron U.S.A., Inc., 834 F.2d 1517,
1525 (9th Cir. 1987). We agree with the Second and Ninth
Circuits that the plain meaning of “court of the United States or
a State” excludes administrative actions. We therefore reverse the
district court’s judgment dismissing this suit on the ground that
Texans United are precluded, under § 7604, from pursuing this cause
of action against Crown.
IV. CONCLUSION
For the above reasons, we conclude that Texans United have
standing to pursue the suit under the CAA. We REVERSE the district
court’s grant of summary judgment in favor of Crown on the grounds
of statutory preclusion and REMAND to the district court for
further proceedings.
13