Imagine that, every day for eight years, you wake up to find yourself coughing. It’s not because you keep getting sick. It’s because, just down the road, an ExxonMobil refinery is emitting thousands of pounds of toxic pollutants into the air every year. Between 2005 and 2013, this was reality for those living in Baytown, Texas. 

That is why residents of Baytown turned to the Clean Air Act to sue ExxonMobil. Citizens have exercised their powers given to them under the Clean Air Act (CAA) to enforce the CAA’s permitting requirements and emission restrictions upon ExxonMobil. 

Despite the pollution in Baytown and the lawsuit, ExxonMobil is avoiding responsibility or compensating Baytown residents for the harm inflicted. How? Well, ExxonMobil is trying to get the case thrown out of the courtroom, claiming that Baytown residents lack legal standing. 

What is legal standing? 

To have a case heard in court, parties need to have a valid reason for litigation. What does that mean? Basically, you need to have a legitimate reason to bring someone to court. You can’t just sue anyone. 

To establish legal standing, there is a requirement that plaintiffs have to sustain direct injury or harm that is redressable. This means that the plaintiff needs to be the person or group who were adversely affected.

At the federal level, three elements define legal standing. 

The Lujan vs. Defenders of Wildlife case in 1992 established three elements to meet legal standing in environmental cases. The first is that an injury against the plaintiff has to occur. In Lujan, the Supreme Court outlined that the injury must be concrete and actual or imminent. This has been established as “injury-in-fact”. 

The second element is that a causal connection between the injury and the action causing the injury is made. Thus, the injury must be traceable back to the defendants alleged action. 

Finally, the third element that needs to be met is redressability, meaning the court can make up for or correct the injury to the plaintiff. The court must find that the plaintiff’s injury has the ability to be redressed by the court. To meet this element, the court must have the ability to meaningfully address the problem by requiring the entity inflicting harm to change procedures and/or compensate for damages.

What are hurdles to the current requirements around legal standing? 

The courts have the potential to be a powerful avenue for advancing environmental justice. But, without legal standing, the doors to the courtroom close.

First, it can be difficult to establish that a harm has occurred. Many environmental contaminants harm people over time and space. This means people can be harmed by pollution emitted in the past or in a different location. Thus, establishing that an injury is concrete or imminent can be difficult. 

What if victims know that they have or will suffer injuries due to contamination? Well, there is some uncertainty about the effects of certain pollutants. Because of this, the plaintiffs might fail to meet the first criteria. 

The second element is also very difficult to meet. There needs to be a reasonable connection between the injured and the polluter. This is hard to establish. 

Say someone develops cancer due to environmental carcinogens. Standing requires that you show it is likely that a particular factory’s emissions are to blame. But what if the carcinogens came from a factory in the neighboring state? Or a different country? With pollution moving over space, it becomes increasingly difficult to establish a reasonable connection between the injured and the polluter.

Additionally, the current Supreme Court is a hurdle to environmental justice cases. Currently, we have a majority conservative Supreme Court that favors setting precedent based on their strict interpretations of the law. 

Standing has traditionally focused on economic injury with a clear perpetrator of the injury. But environmental justice cases aren’t as clear cut under the law. When the courts are made of judges with quite strict interpretations of the law, there is concern for their ability to codify their conservative interpretations for future generations.  

What is the future for legal standing in environmental justice cases?

The ExxonMobil case is the future for legal standing in environmental justice cases. This case could raise the bar for establishing standing in environmental cases. 

In May, 2023, the Fifth Circuit Court found in favor of the plaintiffs in Environment Texas Citizen Lobby v. ExxonMobil Corp, prompting Exxon to pay $14 million in penalties to the Clean Air Act. Exxon appealed to the Fifth Circuit Court of Appeals to rehear the case. 

Exxon claims that the plaintiffs could not trace their injuries directly back to the violations. This case can be detrimental to the future of environmental justice lawsuits. 

The Fifth Circuit Court of Appeals agreed and a panel will hear arguments over the fine itself and if the plaintiffs have reached legal standing. 

The Fifth Circuit Court could side with Exxon. This could set the bar for meeting the second element of legal standing much higher for future cases. 

Or, if ExxonMobil is not content with the decision, they could appeal to the Supreme Court. Historically, the current bench of Supreme Court Justices have argued that the bar for legal standing is higher for environmental organizations and individuals suing under environmental regulations. If Environment Texas Citizen Lobby v. ExxonMobil Corp. goes to the Supreme Court, the Court can solidify the higher bar for these cases in precedent. 

Either way, this case can be damaging to the future of environmental justice cases. 

In 2023 alone, Earthjustice, a major environmental law advocacy firm, had 34 court victories. All of these victories were made possible by legal standing. Environment Texas Citizen Lobby vs. ExxonMobil Corp. has the potential to close the doors to environmental plaintiffs in courtrooms around the country.