Preparing For Environmental Citizen Suits In The Gulf Coast Region: Plaintiff Standing After Environment Texas

After fifteen years, three interim judgments ranging from $0 to $20 million, three appeals, an en banc review, and a writ for cert., Env't Tex. Citizen Lobby, Inc. v. ExxonMobil Corp.¹ has given new meaning to exhaustion in the environmental citizen suit context. The saga came to an end in June 2025, when the United States Supreme Court rejected an appeal from the Fifth Circuit's en banc decision that upheld a $14.25 million civil penalty for violations of the Clean Air Act (CAA).

The Fifth Circuit's decision in this cavalcade of conflict spanned some one hundred pages. Seventeen justices participated in en banc review but agreed only on a per curiam opinion that stated "justice delayed is justice denied" and affirmed the district court's judgment. The en banc decision set no binding precedent, and the competing opinions left many more questions than answers.

The legal implications of the case may remain limited to the parties to the case. But the practical consequences may be broader and have longer-term impacts.

• Environmental non-governmental groups (ENGOs) – already well-funded and committed to continuing the Biden administration's environmental agenda – have incentive to file more citizen suits in Fifth Circuit courts. The Env't Texas decision leaves open pathways to achieve standing for a broader range of prospective injuries to secure high penalties and legal fees. Even in a reputedly conservative jurisdiction that is home to America's oil and gas industry, the judicial forum is uncertain for citizen suit defendants. The outcome of the Env't Texas case was by no means certain during its 15-year tenure. A Fifth Circuit ruling that narrowed citizen standing under the CAA could have been precedential for all federal environmental statutes that include citizen suit provisions with language largely identical to that in the CAA.
• Standing in Fifth Circuit citizen suits remains fraught with uncertainty. Fundamental questions continue to require litigation and appeals, such as the tracing of injuries to the defendant's conduct. Plaintiffs can readily allege scores of violations by cataloging a company's self-reported non-compliance, setting the stage for prolonged litigation alleging harm from these violations. The initial complaint against ExxonMobil alleged more than 16,000 violations following this formula. The case and its mosaic of opinions will be studied by plaintiffs crafting complaints, defendants filing dispositive motions, and any party planning for discovery on standing. Fifth Circuit panels will be composed of widely different viewpoints. Future citizen suit standing outcomes may well depend on the particular justices hearing the case.

What Can A Defendant Do?

• Assess your vulnerabilities to citizen enforcement; know your assets, know your communities, know your compliance risks. Consider whether you have assets that are in focus areas for ENGOs (e.g., the Gulf Region) or targeted initiatives (e.g., LNG sites), if you could improve community presence or relations, or if your facility has high-profile compliance issues covered in the media.
• Definitively address non-compliance. As we have outlined in this B&D article, consider whether to audit facilities. Be sure that corrective actions are completed and documented where non-compliance is discovered.
• Be familiar with the unique aspects of standing in the citizen suit context – whether in the Fifth Circuit or not – and especially traceability issues. Be prepared to defend how a plaintiff may try to tie injuries to a facility's actions.

Environmental citizen suits raise unique standing issues because the injuries are often intangible or prospective. Claims of harm often include a loss of recreational or aesthetic value in addition to traditional physical injuries. The impacts of pollution are often cumulative and latent, making it difficult to isolate a single event's direct result. Still, standing must be established in Article III courts before a case can proceed to the merits. Generally, Article III standing requires plaintiffs to show a personal stake, consisting of: (1) an injury in fact, (2) fairly traceable to the defendant's challenged conduct, (3) that is likely redressable by the requested relief. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992).

This article focuses on three questions that divided the en banc Court on the second prong: traceability.

• First, can a plaintiff establish traceability for prospective injuries?
• Second, must a plaintiff establish traceability for each individual violation alleged?
• Last, is the presumption of traceability from Cedar Point ² applicable to CAA cases?

The answers to these questions may largely depend on the particular justices hearing a case. In the Env't Texas opinions, the Justices arranged themselves into the following groups:

Question 1: Prospective Traceability?

Perhaps the most divisive issue before the Circuit was whether standing in a citizen suit is based on the plaintiff's past harm or continuing and future harm. Central to this question is whether the plaintiff is seeking compensatory or prospective relief. Citizen suits do not provide any compensatory relief to the plaintiff. Instead, the court can impose injunctive relief or civil penalties that are paid to the government. The Justice Davis-led concurrence, influenced by briefing from the then-Solicitor General, was convinced that since the relief was forward-facing, the analysis should be as well. The Justice Jones-led dissent, on the other hand, expressed concern over the speculative task of tracing injuries that had yet to materialize to specific violations.

One wedge-point for the justices was the meaning and applicability of Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc.,³ a Clean Water Act (CWA) case arising from repeated mercury discharges into the North Tyger River. The Laidlaw court considered whether plaintiffs had standing to seek civil penalties (prospective relief) based on past discharges. The defendants argued that plaintiffs had not shown an injury since none of the discharges had yet resulted in health or environmental harm. The court relied on reasoning from an injunction case, which held that a plaintiff has standing if he has a reasonable fear that future harm will occur. The court found it was "more than probable" that the river's future recreational and aesthetic value would be impacted by repeated pollution discharges. This future condition was sufficient to confer standing onto the litigants who used and relied on the river.

To the Justice Davis-led concurrence, Laidlaw established a clear precedent that citizen suit plaintiffs derive standing for civil penalties from ongoing and future violations. The Jones-led dissent pointed out, however, that Laidlaw only addressed the injury-in-fact and redressability elements of standing, not traceability. Justice Jones wrote that the "prospective tracing" theory was an "eleventh-hour" addition to the amicus briefing by the U.S. Government without any precedent. According to Justice Jones, this approach is inconsistent with both Article III and theCAA.

Both the Justice Davis-led and the Justice Jones-led positions should be studied by parties in Fifth Circuit citizen suits, as the timing of the alleged injuries and alleged violations plays a critical role in both the standing analysis and evidentiary battles that follow.

Question 2: Particular Traceability?

The justices also split on whether standing should be assessed on a claim-by-claim or violation-by-violation basis. The opinions ranged from affirming the lower court's determination that plaintiffs had traceable injuries for 3,561 violations (as Justice Davis would have held) to holding that only some of the plaintiffs could trace their injuries to a handful of violations (as Justice Jones would have held). This is a significant distinction for litigants because it impacts the scale of plaintiffs' showing that their injuries are traceable to the defendant's alleged misconduct. Because CAA penalties may be assessed per violation, answering this question is critical to control the scope of the case.

Justice Davis was convinced by the CAA's language that a claim includes a repeated violation of "an emission standard or limitation." In Judge Davis's view, standing only requires plaintiffs to trace their injuries to the at-large breach of an emission standard, rather than each individual violation.

Judge Jones was convinced by the risk that a claim-by-claim approach could confer standing for injuries that would be impossible to arise from a violation. For example, some of the plaintiffs did not live close to the Baytown facility until midway through the enforcement window, so it would be impossible for their injuries to be traced to violations that predated their exposure.

This split of authority will ultimately let each district court pick their standard. In courts following Justice Davis's reasoning, it would be sufficient to show that Exxon's repeated violations of emissions standards contributed to the types of injuries alleged. In courts adopting Justice Jones's opinion, the plaintiff must demonstrate that a specific emission event caused or contributed to a specific injury. This divide will significantly impact how complaints are crafted and dispositive motions are argued, but until the case reaches the Circuit, advocates will be gambling on either approach.

Question 3: Applicability of Cedar Point?

Pollution cases present a particular problem for the traceability analysis because injuries are often latent, cumulative, or attributable to several entities. Traceability does not have the same stringency as a question of causation on the merits, but courts (and this Circuit) divide on the degree of certainty with which plaintiffs must trace their injuries to a defendant's violation. This question has arisen frequently in CWA citizen suits, and the Fifth Circuit has developed a test for traceability in those cases. See Sierra Club, Lone Star Chapter v. Cedar Point Oil Co., 73 F.3d 546 (5th Cir. 1996). The Cedar Point test essentially looks at the geographical nexus between a defendant's violations that could cause a certain type of injury and where the alleged injuries have occurred. In the simplest case, this could mean a discharge of odor-causing pollutants into a waterway where the plaintiffs complain of odors. Upon such a showing, the plaintiffs enjoy a presumption of traceability. In Env't Texas, the Circuit split on the question of whether this test was sufficient and whether it could be applied to CAA emission violations.

Justice Davis's opinion walked through the Cedar Point test and determined that plaintiffs had provided sufficient evidence through lay witness and expert testimony, stipulations, and scientific evidence including toxicological studies. Justice Jones would not have applied Cedar Point because traceability is about whether a violation did, rather than could, cause plaintiffs' injuries. The opinion points out that many of the alleged violations did not involve emissions of sufficient quantities to travel beyond the facility fenceline or cause the types of injuries alleged.

Parties arguing CAA standing cases before either camp's Justices should analyze the facts of the case and prepare arguments as to why they are similar or not to the deciding factors in Cedar Point. Whether this presumption of traceability continues to be applied will make a significant difference in a court's analysis of standing.

Conclusion

As civil and criminal enforcement attenuates under the Trump Administration, ENGOs have more opportunity and incentive to file citizen suits. Suits against facilities in the Fifth Circuit will likely face fundamental ambiguities on standing issues because the justices have wide-ranging views on the traceability element for injuries. For Fifth Circuit litigants, the selection of the three-judge panel may become the most determinative factor in their case. Parties should closely study Env't Texas and be prepared to craft their standing arguments based on the sitting justices.

Footnotes

1. Env't Tex. Citizen Lobby, Inc. v. ExxonMobil Corp, 123 F.4th 309 (5th Cir. 2024), cert. denied, 145 S.Ct. 2845 (2025).

2. Sierra Club, Lone Star Chapter v. Cedar Point Oil Co., 73 F.3d 546 (5th Cir. 1996).

3. 528 U.S. 167 (2000).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.