IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-20030

ENVIRONMENT TEXAS CITIZEN LOBBY, INCORPORATED; SIERRA 

CLUB, 

 Plaintiffs - Appellants

v.

EXXONMOBIL CORPORATION; EXXONMOBIL CHEMICAL COMPANY; 

EXXONMOBIL REFINING & SUPPLY COMPANY, 

 Defendants - Appellees

Appeal from the United States District Court

for the Southern District of Texas

Before BENAVIDES, DENNIS, and SOUTHWICK, Circuit Judges.

FORTUNATO P. BENAVIDES, Circuit Judge:

This appeal concerns a Clean Air Act (“CAA”) citizen suit brought by 

Plaintiffs-Appellants Environment Texas Citizen Lobby Incorporated and 

Sierra Club (“Plaintiffs”) against ExxonMobil Corporation, ExxonMobil 

Chemical Company, and ExxonMobil Refining & Supply Company 

(collectively, “Exxon”). Exxon owns and operates an industrial complex (which 

includes a refinery and two petrochemical plants) in Baytown, Texas, and 

Plaintiffs allege that Exxon violated the federal permits governing operations 

at the complex thousands of times over a nearly eight year period. Specifically, 

and as relevant to this appeal, Plaintiffs allege that Exxon (1) repeatedly 

United States Court of Appeals

Fifth Circuit

FILED

May 27, 2016

Lyle W. Cayce

Clerk

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violated a permit condition “stating that emissions from ‘upset’ events are not 

authorized under any circumstances,” (2) repeatedly emitted pollutants at 

rates in excess of the hourly emission limits set forth in permit emission rate 

tables, (3) repeatedly emitted highly reactive volatile organic compounds 

(“HRVOCs”) at rates in excess of a 1,200 lbs./hr. emission limit, (4) repeatedly 

violated a prohibition on visible emissions from flares lasting more than five 

minutes during any two consecutive hours, and (5) repeatedly violated a 

number of other permit requirements, some emissions-related and some nonemissions-related, as reflected in “deviation reports” filed with the Texas 

Commission on Environmental Quality. 

Plaintiffs sued Exxon for these and other alleged violations in the United 

States District Court for the Southern District of Texas. The district court 

conducted a thirteen-day bench trial and issued findings of fact and conclusions 

of law denying most of Plaintiffs’ claims and declining to order any relief. On 

appeal, Plaintiffs contend generally that (1) the district court erred in finding 

a total of only 94 actionable violations of Exxon’s permits, and (2) the district 

court abused its discretion in declining to impose any penalties, issue a 

declaratory judgment, or grant injunctive relief in remediation of the violations 

at issue. We now VACATE the district court’s judgment and REMAND for 

further proceedings.

I. BACKGROUND

 Exxon’s Baytown industrial complex—the subject of the instant 

lawsuit—is comprised of a refinery, an olefins plant, and a chemical plant. 

Overall, the complex is governed by five federal operating permits issued 

pursuant to Title V of the CAA. See 42 U.S.C. §§ 7661a–7661d. These federal 

permits (“Title V Permits”) incorporate various federal and state regulatory 

requirements and also incorporate by reference state permits issued pursuant 

to State Implementation Plan (“SIP”) programs. Each permit at issue in this 

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suit contains a Maximum Allowable Emission Rate Table (“MAERT”), which 

sets the maximum rates at which specific pollutants may be emitted from 

specific sources (or, in the case of “flexible” permits, groups of sources). It is 

also undisputed on appeal that (1) “[t]he permits for all three plants 

incorporate the Texas ‘HRVOC Rule,’ which limits facility-wide emissions of 

highly reactive volatile organic compounds to no more than 1,200 pounds per 

hour,” and (2) “[t]he permits for all three plants incorporate federal regulations 

prohibiting visible” plant flare emissions “for periods exceeding five minutes 

during any two-hour period.” Finally, each incorporated permit involved in this 

case contains a series of additional “special conditions.” For example, and as 

relevant to the present appeal, a permit governing operations at the Baytown 

refinery provides under special conditions 38 and 39 that “[t]his permit does 

not authorize upset emissions, emissions from maintenance activities that 

occur as a result of upsets, or any unscheduled/unplanned emissions associated 

with an upset. Upset emissions are not authorized, including situations where 

that upset is within the flexible permit emission cap or an individual emission 

limit.” 

The state regulatory agency charged with enforcing these permit 

provisions in conjunction with the EPA is the Texas Commission on 

Environmental Quality (“TCEQ”). In order to facilitate TCEQ oversight and 

enforcement, state regulations require regulated entities to document 

“noncompliance and indications of noncompliance” with their permits in 

certain ways. Env’t Tex. Citizen Lobby, Inc. v. ExxonMobil Corp., 66 F. Supp. 

3d 875, 882 (S.D. Tex. 2014). First, regulated entities must submit State of 

Texas Environmental Electronic Reporting System (“STEERS”) reports to the 

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TCEQ documenting “emissions events”1 that result in the release of pollutants 

at or above a threshold quantity. See 30 TEX. ADMIN. CODE § 101.201(a); id. 

§ 101.1(88)–(89). Second, regulated entities must maintain on-site records of 

“emissions events” that result in the release of pollutants below the relevant 

threshold quantity. Id. § 101.201(b). Third, regulated entities must submit 

semi-annual reports to the TCEQ documenting any “deviations”2 from Title V 

permit requirements. Id. § 122.145(2). The TCEQ investigates each 

“reportable” event reflected in a STEERS report, reviews the on-site records of 

all “recordable” events, and has the authority to take enforcement action on 

any event should it deem such action necessary. In the present case, the record 

reflects that the TCEQ pursued enforcement and ultimately assessed over $1 

million in penalties against Exxon based on a number of the “events” set out 

in its reports and records for the period relevant to this appeal. Furthermore, 

in 2012, the TCEQ and Exxon entered an “agreed enforcement order” which, 

among other things, requires Exxon to implement four “environmental 

improvement projects” in order to “reduce emissions at the Baytown Complex, 

including emissions from emissions events . . . .”

As a supplement to the enforcement authority vested in the EPA and 

state regulatory agencies like the TCEQ, the CAA also authorizes “any person 

[to] commence a civil action on his own behalf” against “any person . . . who is 

 

1 An “emissions event” is defined under Texas law as “[a]ny upset event or 

unscheduled maintenance, startup, or shutdown activity, from a common cause that results 

in unauthorized emissions of air contaminants from one or more emissions points at a 

regulated entity.” 30 TEX. ADMIN. CODE § 101.1(28). “Unauthorized emissions” are in turn 

defined as “[e]missions of any air contaminant except water, nitrogen, ethane, noble gases, 

hydrogen, and oxygen that exceed any air emission limitation in a permit, rule, or order of 

the commission . . . .” Id. § 101.1(108).

2 A “deviation” is defined under Texas law as “[a]ny indication of noncompliance with 

a term or condition of the permit as found using compliance method data from monitoring, 

recordkeeping, reporting, or testing required by the permit and any other credible evidence 

or information.” 30 TEX. ADMIN. CODE § 122.10(6).

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alleged to have violated (if there is evidence that the alleged violation has been

repeated) or to be in violation of . . . an emission standard or limitation under 

[the CAA].” 42 U.S.C. § 7604(a)(1). The definition of “emission standard or 

limitation” includes any “standard,” “limitation,” “schedule,” “term,” or 

“condition” in a Title V permit. Id. § 7604(f)(4). Thus, any person may bring a 

so-called “citizen suit” under the CAA against a regulated entity that has 

violated a provision of its Title V permit, so long as the violation has been 

“repeated” or is “ongoing.” See id. § 7604(a)(1). 

In December of 2010, Plaintiffs in the present case sued Exxon under the 

CAA’s citizen suit provision, alleging thousands of violations of Exxon’s 

permits over a period spanning from October of 2005 through the date of suit.3

Plaintiffs raised seven counts in their complaint, five of which are at issue in 

this appeal. Specifically, Plaintiffs alleged (among other things) that Exxon 

(1) committed thousands of violations of the refinery permit condition

providing that “upset emissions” are “not authorize[d]” (Count I); (2) committed 

thousands of violations of the MAERT emission limits for various pollutants in 

the complex’s permits (Count II); (3) committed 18 days of violations of the 

incorporated 1,200 pounds per hour permit limits on emissions of HRVOCs 

(Count III); (4) committed 44 days of violations of the incorporated permit 

prohibitions on visible emissions from flares for periods exceeding five minutes 

during any two-hour period (Count IV); and (5) committed over 4,000 days of 

additional violations of sundry regulatory requirements reflected in “deviation 

reports” that Exxon submitted to the TCEQ (Count VII). Plaintiffs sought the 

maximum statutory penalties for each of the violations, a declaratory judgment 

that Exxon violated its permits (and thus the CAA), a permanent injunction 

 

3 Because Plaintiffs claimed many of the violations were “ongoing,” the period of 

alleged violations ultimately extended through September of 2013. 

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barring Exxon from further permit violations, attorneys’ fees and costs, and 

appointment of a “special master” to monitor implementation of relief. 

As evidentiary support for the alleged violations, Plaintiffs relied 

exclusively on “Exxon’s STEERS reports of reportable emissions events, 

records of recordable emissions events, and Title V deviation reports covering 

the time period at issue.” Env’t Tex., 66 F. Supp. 3d at 882. At the direction of 

the district court, the parties compiled the various reports and records into 

spreadsheets and “stipulated to [their] contents.” Id. The district court 

subsequently conducted a thirteen-day bench trial and issued findings of fact 

and conclusions of law in late 2014. Broadly, the district court concluded that 

only 94 of the thousands of alleged permit violations were “actionable,” and the 

court declined to order any of Plaintiffs’ requested relief. More specifically, 

(1) the district court treated Count I as alleging violations of MAERT hourly 

emission limits (essentially conflating Count I and Count II) and found no 

“actionable” Count I violations; (2) the district court found only 25 “actionable” 

Count II violations based on Plaintiffs’ ostensible failure to show that most of 

the violations were repeated violations of the same hourly MAERT limits; 

(3) the district court found only a handful of Count III and Count IV violations, 

as the rest of the alleged violations were not “corroborated”; (4) the district 

court found no additional Count VII violations, as Plaintiffs had failed to meet 

their burden of showing that the “indications” of noncompliance in the 

deviation reports were actual violations; (5) the district court declined to grant 

declaratory relief, because the court had “already made” findings on Exxon’s 

liability; (6) the district court declined to impose a penalty based, in part, on

the finding that Exxon received no economic benefit from its failure to comply 

with its permits and the view that lengthy/serious violations could be offset by 

less lengthy/less serious violations; and (7) the district court declined to grant 

injunctive relief, finding that the injury to the public from denial of an 

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injunction would not outweigh the damage the injunction would cause Exxon.

Plaintiffs now appeal.

II. DISCUSSION

As noted above, the district court in this case found that 94 of the 

thousands of alleged permit violations were “actionable” under the citizen suit 

provision of the CAA, and the court declined to order any of Plaintiffs’ 

requested relief. Notably, the district court’s judgment on penalties went 

beyond merely concluding that no penalty was warranted for the violations it 

found actionable. Rather, the district court determined that even if every 

alleged violation were actionable, it would not impose a penalty. Env’t Tex., 66 

F. Supp. 3d at 904. We conclude that (1) the district court erred in finding 94

“actionable” permit violations; (2) the district court abused its discretion when 

it weighed less lengthy/less serious violations against more lengthy/more 

serious violations in its assessment of the CAA penalty factors; and (3) the 

district court erred in failing to consider certain evidence of Exxon’s economic 

benefit from noncompliance. We therefore VACATE the district court’s 

judgment and REMAND for assessment of penalties based on the correct 

number of actionable violations. 

A. Liability

The liability claims at issue in this appeal largely hinge on the legal 

significance of undisputed facts. As noted above, the parties stipulated to the 

accuracy of Plaintiffs’ evidence, which consisted of spreadsheets detailing 

Exxon’s reports and records of “emissions events” and Title V “deviation 

reports.” However, the parties dispute nearly every legal conclusion to be 

drawn from the spreadsheets, including whether the spreadsheets—because 

they reflect Exxon’s legally required reports and records of “emissions 

events”—constitute admissions of permit violations. We will address each 

liability count in turn after briefly discussing the standard of review.

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1. Standard of Review

“The standard of review for a bench trial is well established: findings of 

fact are reviewed for clear error and legal issues are reviewed de novo.” Preston 

Exploration Co., L.P. v. GSF, L.L.C., 669 F.3d 518, 522 (5th Cir. 2012) (quoting 

Kona Tech. Corp. v. S. Pac. Transp. Co., 225 F.3d 595, 601 (5th Cir. 2000)).

However, “[t]he clearly erroneous standard of review does not apply to [those] 

factual findings made under an erroneous view of controlling legal principles.” 

Maritrend, Inc. v. Serac & Co. (Shipping) Ltd., 348 F.3d 469, 470 (5th Cir. 

2003) (quoting Lake Charles Stevedores, Inc. v. PROFESSOR VLADIMIR 

POPOV M/V, 199 F.3d 220, 223 (5th Cir. 1999)).

“A finding is ‘clearly erroneous’ when there is no evidence to support it, 

or if the reviewing court, after assessing all of the evidence, is left with the 

definite and firm conviction that a mistake has been committed.” U.S. Bank 

Nat’l Ass’n v. Verizon Commc’ns, Inc., 761 F.3d 409, 431 (5th Cir. 2014) 

(quoting Baldwin v. Taishan Gypsum Co., Ltd. (In re Chinese-Manufactured 

Drywall Prods. Liab. Litig.), 742 F.3d 576, 584 (5th Cir. 2014)). When “the 

district court’s account of the evidence is plausible in light of the record viewed 

in its entirety,” this court “may not reverse it even though convinced that had 

it been sitting as the trier of fact, it would have weighed the evidence 

differently.” Id. (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573–

74 (1985)). Furthermore, if this court “determine[s] that ‘there are two 

permissible views of the evidence,’ then [it] may not conclude that the [district] 

court’s choice between them was clearly erroneous.” Id.

2. Count I: The “No Upset Emissions” Condition

In Count I of their complaint, Plaintiffs alleged that Exxon violated

incorporated provisions of the Title V Baytown refinery permit providing “that 

upset emissions, emissions from maintenance activities that occur as a result 

of upsets, or any unscheduled/unplanned emissions associated with an upset, 

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are not authorized in any amount.” Likewise, in the proposed findings of fact 

and conclusions of law that Plaintiffs submitted to the district court, they

alleged under Count I that “Exxon violated the provisions of the Refinery’s 

Title V permit that prohibit upset emissions,” and Plaintiffs specifically cited 

special conditions 38 and 39 of incorporated refinery permit 18287 in support 

of this allegation. However, Plaintiffs also submitted a summary exhibit of 

Count I violations in which violations of “MAERT limits” were referenced. For 

this reason, the district court concluded that Plaintiffs’ allegations with respect 

to Count I had been “inconsistent,” and because the Count I summary chart 

listed violations “contaminant-by-contaminant,” the district court treated 

Count I as alleging violations “of conditions that apply to separate air 

contaminants,” i.e., MAERT emission limits. Env’t Tex., 66 F. Supp. 3d at 895–

96. In other words, the district court conflated Plaintiffs’ Count I allegations 

with their Count II allegations (addressed infra) and concluded there were no 

actionable violations under Count I for the same reason there were very few

actionable violations under Count II. On appeal, Plaintiffs argue that the 

district court simply applied the wrong permit provisions to Count I; put 

another way, Plaintiffs claim that the court erred by applying the wrong law 

to the events set forth in Plaintiffs’ spreadsheets—a decision to which de novo 

review applies. See Maritrend, 348 F.3d at 470. We agree.

The aforementioned special conditions 38 and 39 state that “[t]his permit 

does not authorize upset emissions, emissions from maintenance activities that 

occur as a result of upsets, or any unscheduled/unplanned emissions associated 

with an upset. Upset emissions are not authorized, including situations where 

that upset is within the flexible permit emission cap or an individual emission 

limit.” An “upset event” (the emissions from which would be “upset emissions”) 

is defined under Texas law as an “unplanned and unavoidable breakdown or 

excursion of a process or operation that results in unauthorized emissions.” 30 

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TEX. ADMIN. CODE § 101.1(110). Thus, because every “emissions event” 

recorded or reported by Exxon in this case also by definition involved 

“unauthorized emissions” as a result of “upset event[s]” or “unscheduled 

maintenance, startup, or shutdown activity,” id. § 101.1(28), Plaintiffs were 

clearly alleging under Count I that every emission of a pollutant during each 

recorded “emissions event” at the refinery was a violation of special conditions 

38 and 39 (and, by extension, one of Exxon’s Title V permits). 

The district court, however, believed it was “unclear exactly which 

standards or limitations Plaintiffs contend were violated under Count I,” 

largely because one of Plaintiffs’ summary exhibits setting forth Count I 

violations listed the violations under a heading for violations of “MAERT 

limits” rather than special conditions 38 and 39.4 Env’t Tex., 66 F. Supp. 3d at 

896. The court thus suggested in a footnote that Plaintiffs were “combining a 

condition incorporated into a flexible permit that does not authorize upset 

emissions with conditions incorporated into the same flexible permit that limit 

separate air contaminants,” and because Plaintiffs’ Count I allegations were 

listed “contaminant-by-contaminant,” the court treated Count I as alleging 

solely violations of MAERT limits. Id. at 896 & n.163.

On appeal, Exxon claims that the district court’s Count I analysis 

stemmed from its “reject[ion]” of “Plaintiffs’ theory that all upset emissions are 

actionable violations” and its “recogni[tion] that these emissions were 

actionable, if at all, only if they exceeded the maximum hourly emission rates.”

But this contention is inaccurate—the district court in fact expressly declined 

to “address whether the sole fact that there are allegedly multiple upset events 

 

4 While Plaintiffs do not offer an explanation for this variance, a simple review of the 

record provides an obvious one: human error. The summary tables for Plaintiffs’ Count II 

violations are identical to the summary tables for the Count I violations, with only the 

numbers and headings changed. Thus, when the Count II tables were used to make the Count 

I tables, it is likely that the “violations” heading was mistakenly left unaltered. 

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makes those upset events actionable under the CAA or whether the condition 

referencing upset emissions constitutes a standard or limitation under the 

CAA.” Id. at 896. Indeed, in the district court’s view, Plaintiffs did “not contend 

every upset event is actionable because the condition that does not authorize 

upset emissions was repeatedly violated.” Id. As should be clear from the 

foregoing discussion, however, this is precisely what Plaintiffs contended, and 

we do not think the district court’s decision to ignore special conditions 38 and 

39 follows from “Plaintiffs’ approach to proving repeated violations under 

Count I contaminant-by-contaminant.” Id. at 896 n.167. Rather, because 

Plaintiffs alleged that each emission of each pollutant during refinery 

emissions events was a violation of the special conditions (regardless of 

MAERT limits), it is unsurprising under Plaintiffs’ actual Count I theory that 

they would list violations in such a manner. 

Nevertheless, Exxon further argues that Plaintiffs’ allegations of permit 

violations in general are based on the fallacious theory that “unauthorized 

emissions” during emissions events violate state permits. Exxon claims, on the 

contrary, that emissions events are simply not governed by permits and are 

instead subject to other regulations. In support of this contention, Exxon cites 

a portion of its 2012 agreed enforcement order with the TCEQ, which provides 

that “[e]missions events and [unplanned] MSS activities . . . are not subject to 

permitting under 30 TEX. ADMIN. CODE Chapters 106 or 116, and are regulated 

under 30 TEX. ADMIN. CODE Chapter 101 and TEX. HEALTH AND SAFETY CODE

§§ 382.0215, 382.0216 and 382.085.” Exxon Mobil Corp., Docket No. 2011-2336-

AIR-E, 2012 WL 780783, at *1 (Tex. Comm’n on Envtl. Quality Feb. 29, 2012).

Based on this language, Exxon claims that “unauthorized” emissions from 

emissions events cannot violate a permit, because such emissions were never 

subject to permits in the first instance. 

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We see at least two problems with Exxon’s argument: first, 

“unauthorized emissions,” by definition, include “[e]missions of any air 

contaminant . . . that exceed any air emission limitation in a permit . . . .” 30 

TEX. ADMIN. CODE § 101.1(108). Second, the language from the TCEQ agreed 

enforcement order, read in conjunction with the regulatory framework it 

references, appears to indicate simply that Exxon cannot be issued a permit by 

rule (under Chapter 106) or a permit for new construction or modification 

(under Chapter 116) that allows for emissions events. See id. §§ 106.4, 116.10–

20. But this does nothing to suggest that emissions from such events are 

incapable of violating a permit, as evidenced by the fact that the TCEQ found 

violations of Exxon’s permits— including state-issued permit 18287 and the 

corresponding Title V permit—stemming from Exxon’s “fail[ure] to prevent 

unauthorized emissions” during several discrete emissions events at the 

Baytown complex. Exxon Mobil Corp., 2012 WL 780783, at *4. 

We accordingly conclude that the district court erred as a matter of law 

in treating Count I as alleging violations of MAERT limits rather than special 

conditions 38 and 39. Furthermore, we note (as did the district court) that the 

alleged “violations under Count I overlap to an extent with hourly emission 

limit violations under Count II,” but we do not agree that this is a reason to 

collapse the MAERT limits with special conditions 38 and 39. Rather, as 

Plaintiffs made clear in the court below, Count I sets forth the alternative 

theory that every “emissions event” at the refinery constitutes a violation of 

the “no upset emissions” provisions incorporated into the refinery’s Title V 

permit. As such, we believe that the district court’s judgment on Count I should 

be vacated and the case remanded for reconsideration of Count I together with 

Count II, which we will now address.

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3. Count II: MAERT Limits

In Count II, Plaintiffs alleged that the “emissions events” set forth in 

Exxon’s reports and records encompassed over 13,000 days of violations of the 

hourly numerical emission limits for specific pollutants contained in the 

Maximum Allowable Emission Rate Tables (MAERTs) of incorporated permits 

governing the Baytown refinery, olefins plant, and chemical plant. The district 

court found that Plaintiffs had not proven any “actionable” MAERT violations 

under the relevant permits for the refinery and olefins plants and had proven 

a total of only 25 actionable violations under the relevant chemical plant 

permits. The court premised its findings on the determination that because the 

CAA citizen suit provision authorizes suits for “repeated or ongoing” violations 

of “an emission standard or limitation . . . in” a Title V permit, Plaintiffs had 

to prove repeated violations of the “same, specific” permit limitations. Env’t 

Tex., 66 F. Supp. 3d at 895, 898. In the district court’s view, this meant that 

Plaintiffs had to show repeated violations of identical numerical emission 

limits from the MAERTs. And because Plaintiffs had categorized the violations 

in their spreadsheets by pollutant, with the applicable numerical limits in the 

spreadsheets often varying wildly for the same pollutants from one entry to 

the next, the district court concluded that Plaintiffs had not shown repeated 

violations of most MAERT limits. On appeal, Plaintiffs contend that the 

district court erred in viewing different numerical limits on emissions of the 

same pollutants from the same sources as distinct “permit limitations” for 

purposes of assessing whether MAERT limit violations were repeated or 

ongoing.

As noted previously, the CAA allows a person to bring a civil action 

“against any person . . . who is alleged to have violated (if there is evidence that 

the alleged violation has been repeated) or to be in violation of . . . an emission 

standard or limitation under [the Act].” 42 U.S.C. § 7604(a)(1). Based on this 

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provision, the district court in this case concluded (and neither party disputes 

on appeal) that for a CAA violation5 to be “actionable” in a citizen suit, “the 

plaintiff must prove by the preponderance of the evidence one of the following”: 

either “repeated violation of the same emission standard or limitation before 

the complaint was filed” or “violation of the same emission standard or 

limitation both before and after the complaint was filed.”6 Env’t Tex., 66 F. 

Supp. 3d at 894; see also Glazer v. American Ecology Envtl. Servs. Corp., 894 

F. Supp. 1029, 1037–38 (E.D. Tex. 1995). Accordingly, because an “emission 

standard or limitation” includes any “standard,” “limitation,” “schedule,” 

“term,” or “condition” in a Title V permit, 42 U.S.C. § 7604(f)(4), Plaintiffs 

 

5 Exxon “[did] not dispute” in the court below that “the alleged violations under 

Count[] II . . . constitute violations of an emission standard or limitation.” Env’t Tex., 66 F. 

Supp. 3d at 893 n.153. Exxon attempts to argue on appeal that it “never admitted” any entries 

under Count II were violations, “and the district court plainly understood that position since 

it did not find liability on all of the allegations in” that count. However, Exxon’s argument—

at least with respect to alleged violations under Count II—clearly runs contrary to its 

clarification at trial that “if Exxon Mobil files a reportable STEERS event, for example, in 

essence, it is making a report of releases that exceed, for example, an hourly limit with 

respect to a particular release.” Furthermore, the fact that STEERS reports and on-site 

records of “emissions events” reflect violations of emission standards or limitations does not 

mean that a defendant is per se liable under the citizen suit provision of the CAA. See 42 

U.S.C. § 7604(a)(1) (providing that violations must be “repeated” or ongoing). Thus, the fact 

that the district court “did not find liability on all of the” events under Count II is not proof 

that the district court believed many of the events counted as violations by Plaintiffs were 

not, in fact, violations. Finally, with respect to Exxon’s argument that specific entries in 

which the emission quantity—standing alone—would appear to fall below the applicable 

listed threshold were not shown to be violative of MAERT limits, we note that we were unable 

to locate in the record any point at which Exxon contested these entries before the district 

court. Rather, Exxon’s proposed findings of fact and conclusions of law focused on whether 

Count II violations were “repeated” or “ongoing,” and when asked directly by the district court 

“which events from the stipulated tables” it “claim[ed] [did] not constitute a violation,” Exxon 

did not mention Count II. Thus, to the extent Exxon asks us to conclude that most of the 

Count II violations, including a number of the violations that the district court found 

actionable, were not violations at all based on an argument it never raised below, we decline 

to do so. See, e.g., Violette v. Smith & Nephew Dyonics, Inc., 62 F.3d 8, 11 (1st Cir. 1995) (a 

defendant may not “evade the scrutiny of the district court” by raising a new defense on 

appeal “in order to create essentially a new trial”).

6 The district court also noted a third alternative: namely, showing a “continuing 

likelihood of recurrence.” However, as the district court recognized, “Plaintiffs do not claim 

satisfaction of the third method of proving actionability.” Env’t Tex., 66 F. Supp. 3d at 894.

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concede that they had to prove by the preponderance of the evidence that 

violations of the same, specific conditions or limitations in Exxon’s permits 

were “repeated” in the past or occurred at least once before Plaintiffs filed suit 

and at least once after. 

Despite this concession, Plaintiffs take issue with the district court’s 

finding that because violations were categorized in the spreadsheets and 

summaries by pollutant, with often-differing numerical limits listed, Plaintiffs 

failed to prove that most violations of specific MAERT limits were repeated or 

ongoing. Plaintiffs devote a significant portion of their brief on this point to the 

question of whether a MAERT limit for a particular pollutant from a particular 

source should be considered a single standard or limitation despite changes to

the actual number of the limit over time. In short, Plaintiffs believe that 

multiple exceedances of MAERT limits on specific pollutants from specific 

emission points (or groups of emission points) should be considered “repeated” 

even if the numbers of the limits vary due to intermittent permit amendments 

or renewals. Yet as Exxon points out, variations in the limits listed in 

Plaintiffs’ spreadsheets may, in at least some instances, be attributable to the 

presence of distinct numerical limits for ordinary conditions and maintenance, 

startup, and shutdown (“MSS”) activity within a single version of a permit. 

E.g., PERMIT NO. 36476 (setting ordinary and MSS limits on chemical plant 

emissions). Nevertheless, the district court in this case did not distinguish 

between different emission limits in the same version of a permit and 

corresponding emission limits in different versions of a permit. Instead, the 

court simply determined that any time the listed “emission limit” in Plaintiffs’ 

tables varied numerically, a new permit “standard or limitation” was at issue.

We conclude that this was error. 

At least with respect to specific limits on particular pollutants from 

particular sources that change numerically due to amendments or renewals, 

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we believe that such limits constitute the same “standard[s] or limitation[s]” 

for purposes of determining whether violations are “repeated” or “ongoing” 

under the CAA citizen suit provision. 42 U.S.C. §§ 7604(a)(1) & (f)(4). This view 

is consistent with the approach taken by courts in assessing “ongoing” 

violations of Clean Water Act (“CWA”) permits. See Allen Cty. Citizens for the 

Env’t, Inc. v. BP Oil Co., 762 F. Supp. 733, 740–41 (N.D. Ohio 1991), aff’d, 966 

F.2d 1451 (6th Cir. 1992) (unpublished table decision).7 In the CWA context, 

courts have focused on pollutants and whether those pollutants have been 

discharged at higher rates than authorized by a permit, not simply on whether 

the same numerical thresholds are at issue. See id. at 740–41. We think this 

approach makes good sense given that, as the Fourth Circuit explained in a 

CWA case, “[t]he entire structure of [The Act] and regulations involves 

identifying specific pollutants and setting a permit limit for each pollutant of 

concern.” Chesapeake Bay Found. v. Gwaltney, 890 F.2d 690, 698 (4th Cir. 

1989). We accordingly hold that limits on emissions of specific pollutants from 

specific emission points (or groups of emission points in flexible permits)

should constitute permit “emission standard[s] or limitation[s]” that may be 

violated repeatedly under the CAA citizen suit provision, regardless of whether 

the numerical values of the limits have been changed through amendments or 

renewals.

In light of our holding, we must vacate the district court’s judgment on 

Count II. On remand, the district court is instructed to determine the correct 

number of actionable Count II violations when treating corresponding limits 

 

7 We acknowledge, as the district court in this case did, that “[t]he ‘to be in violation’ 

provision in the CAA is identical to the ‘to be in violation’ provision in the CWA,” and 

“[i]nterpretations of the CWA provision are instructive when analyzing the CAA provision.” 

Env’t Tex., 66 F. Supp. 3d at 894 n.154; see also United States v. Anthony Dell’Aquilla, Enters. 

& Subsidiaries, 150 F.3d 329, 338 n.9 (3d Cir. 1998). 

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on the same pollutants from different versions of the relevant permits as the 

same “standard[s] or limitation[s]” under the CAA.8

4. Counts III and IV: HRVOCs and Smoking Flares

Under Counts III and IV, Plaintiffs alleged 13 violations (for a total of 18 

days) of the incorporated “HRVOC rule” prohibiting emissions of highly 

reactive volatile organic compounds at a rate exceeding 1,200 lbs./hr. (Count 

III) and 42 violations (for a total of 44 days) of the incorporated “smoking flare 

rule” prohibiting visible emissions from flares for periods exceeding five 

minutes during any two-hour period (Count IV). The district court counted 9 

of the 13 HRVOC rule entries in Plaintiffs’ spreadsheets and 28 of the 42 

smoking flare rule entries as “violations,” finding that the remaining entries 

were not “corroborated” as violations of the rules because they either did not 

explicitly state limits had been exceeded or did not list opacity percentages and 

start/end times to allow for verification. Env’t Tex., 66 F. Supp. 3d at 901–02.

On appeal, Plaintiffs claim that the district court erred in requiring

“corroboration” of these entries, as “Exxon conceded at trial that all of the 

alleged violations under Counts III and IV constituted ‘violations of an 

emission standard or limitation.’”

In an early portion of its order, the district court stated the following: 

“Exxon does not dispute that the alleged violations under Counts II, III, IV, 

and V of Plaintiffs’ complaint constitute violations of an emission standard or 

limitation.” Env’t Tex., 66 F. Supp. 3d at 893 n.153. Exxon argues on appeal 

that this statement referred only to “the actionability of various legal theories 

in general,” but we cannot agree. Far from merely acknowledging Exxon’s 

failure to dispute that Counts II, III, IV, and V involved “emission standards 

 

8 We also note, once again, that on remand, the district court should consider the 

overlap between Plaintiffs’ Count I and Count II claims with respect to refinery emissions.

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or limitations” that might hypothetically be violated, the district court 

expressly found it undisputed that “Exxon violated” standards and limitations 

under those counts. See id. at 893. In making this finding, the court was 

undoubtedly relying on an exchange at trial during which the court directly 

asked counsel for Exxon “which events from the stipulated tables” it claimed 

“do not constitute a violation.” In response, counsel pointed only to events 

under Counts I, VI, and VII. Indeed, even after the court clarified that it was 

“not talking about repeated or ongoing[,] [j]ust talking about the definition of 

violations,” counsel for Exxon replied that “those are the three areas I’ll point 

the court to.” 

On the basis of this exchange, the district court clearly assumed each 

Count II event counted by Plaintiffs was undisputed as a violation, because it 

limited its focus in its findings of fact and conclusions of law to whether 

identical numerical permit limits were present in Plaintiffs’ tables such that 

repeated or ongoing violations of the same limits were “corroborated.”9 See id. 

at 899–900. In other words, the district court appears to have treated the 

statements by counsel for Exxon as judicial admissions that “with[drew]” the 

question of whether specific events were violations “from contention,” and it 

thus assumed the entries at issue under Count II were, factually, MAERT limit 

exceedances. See Martinez v. Bally’s La., Inc., 244 F.3d 474, 476–77 (5th Cir. 

2001). With respect to Counts III and IV, however, the district court concluded 

that a number of specific entries were not actionable because the entries 

themselves were not “corroborated” as violations. We find this differential 

treatment of Counts II, III, and IV irreconcilably inconsistent. If the district 

 

9 Indeed, it is for this very reason that we declined to address Exxon’s argument 

regarding whether specific emissions under Count II exceeded MAERT limits—Exxon never 

contested those emissions as violations below, and the district court rightly understood there 

to be no dispute on the point.

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court believed there was a question as to whether particular events under the

three counts constituted violations in the first instance, it should have 

analyzed each entry to determine whether, as a factual matter, the relevant 

limits were exceeded. If it believed the events under those counts were 

undisputed as violations, it should have analyzed simply whether the 

violations were “repeated” or “ongoing.” What the court did, however, was 

(1) analyze only whether violations, which it believed to be undisputed, were 

“repeated” or “ongoing” under Count II; and (2) analyze only whether specific

entries corroborated violations of the relevant permit requirements under 

Counts III and IV. In light of the court’s analysis of Count II and its express 

finding that violations under Counts II, III, IV, and V were undisputed, we do 

not see how the district court’s treatment of entries counted by Plaintiffs as 

violations under Counts III and IV can be justified. We accordingly conclude 

that the district court erred in requiring “corroboration” for violations that, in 

a different portion of the same order, it explicitly found to be undisputed. On 

remand, the district court is instructed to include in its tally of Count III and 

Count IV violations the entries it rejected as “uncorroborated.”

5. Count VII: Additional Violations in Deviation Reports

Under Count VII, Plaintiffs alleged over 4,000 days of additional Title V 

permit violations based on “Title V deviation reports” that Exxon submitted to 

the TCEQ during the relevant time period. These reports contained entries 

reflecting the “emissions events” that were at issue in the other counts, as well 

as various non-emissions-related incidents (involving, for instance, reporting 

requirements). Plaintiffs asserted at trial that each incident contained in a 

deviation report constituted an actionable permit violation, and Exxon argued 

that none of the entries evinced “violations” at all under the definition of 

“deviation” set forth in the Texas Administrative Code. The district court 

agreed with Exxon, reasoning that (1) Texas law defines a deviation as merely 

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“[a]n indication of noncompliance with a term or condition of [a] permit,” 30 

TEX. ADMIN. CODE § 122.10(6); (2) Federal regulations confirm that “[a] 

deviation is not always a violation,” 40 C.F.R. § 71.6(a)(3)(iii)(C); and (3) given 

Plaintiffs’ decision to rely solely on the deviation reports themselves as 

evidence of underlying actionable violations, Plaintiffs had failed “to show how, 

in light of [the aforementioned] provisions, the Deviations at issue . . . [were] 

actual violations.” Env’t Tex., 66 F. Supp. 3d at 903. 

Plaintiffs contend on appeal that the district court misapplied the 

applicable “standard of proof” in its ruling on Count VII, as the deviation 

reports contained “all of the prima facie evidence needed to establish that a 

permit violation occurred.” They accordingly argue that because Exxon failed 

to rebut the evidence of violations contained in the reports, the district court 

should have ruled that every incident in a deviation report was an actionable 

violation. More specifically, Plaintiffs note that federal regulations allow 

regulated entities to submit “other information” indicating that a “reported 

deviation was not a violation,” and Exxon in this case “submitted no such 

information as part of any of the Deviation Reports at issue, nor did it submit 

any such information at trial.”

We find Plaintiffs’ argument unpersuasive. While their briefing of Count 

VII is devoid of authority in support of their contentions regarding the “burden 

of proof,” Plaintiffs appear to be referring to their earlier reliance on cases

reflecting that “a permittee’s own records of violations are sufficient to 

establish liability.” However, the cases Plaintiffs cite do not support the 

proposition that deviation reports specifically are sufficient to establish 

violations (as opposed to merely constituting “indications” of noncompliance). 

For example, the one CAA case Plaintiffs rely on involved Louisiana’s 

permitting and reporting system, which requires the filing of written reports 

“each time the refinery has an ‘unauthorized discharge.’” St. Bernard Citizens 

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for Envtl. Quality, Inc. v. Chalmette Ref., L.L.C., 354 F. Supp. 2d 697, 706 (E.D. 

La. 2005). These reports would be akin to the STEERS reports mandated by 

the TCEQ, not the deviation reports at issue under Count VII. See also 

Concerned Citizens Around Murphy v. Murphy Oil USA, Inc., 686 F. Supp. 2d 

663, 680 (E.D. La. 2010) (recognizing that “unauthorized discharge reports 

demonstrate that [the defendant] violated emission standards or limitations”). 

Furthermore, to the extent Plaintiffs point to a lack of “other 

information” showing that deviations were not violations, testimony regarding 

the significance of stand-alone deviations and their relationship to compliance 

certification is precisely the type of evidence that could have aided the district 

court in resolving Count VII. See Compliance Assurance Monitoring, 62 Fed. 

Reg. 54,900, 54,937 (Oct. 22, 1997) (providing that a regulated entity “may

include information in the certification to document that compliance was 

achieved”). In the absence of such evidence, however, we see no error in the 

district court’s conclusion that the Count VII deviation reports alone were 

insufficient to meet Plaintiffs’ ultimate burden of proving actionable 

violations.10 See Carr v. Alta Verde Indust., Inc., 931 F.2d 1055, 1064 n.7 (5th 

Cir. 1991) (noting that “the burden [is] on the plaintiff to prove at trial his 

allegations of a continuing or intermittent violation”).

B. Remedies

Under the CAA, district courts have jurisdiction in citizen suits “to 

enforce” emission standards or limitations and “to apply any appropriate civil 

 

10 We do not hold that deviation reports will always be insufficient to prove actual 

permit violations. Indeed, we note that some of the Count IV violations stem from information 

contained in deviation reports. We only conclude that, based on the record before us in this 

case, there was no error in the district court’s refusal to find an actionable violation in every 

Count VII deviation. Because Plaintiffs chose to rely exclusively on the existence of the 

deviation reports, with little attempt to clarify their significance, as proof of hundreds of 

violations of different regulatory requirements, we see no basis (and Plaintiffs have not 

provided one on appeal) to disagree with the district court’s resolution of Count VII.

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penalties.” 42 U.S.C. § 7604(a). For the thousands of days of permit violations 

alleged in this lawsuit, Plaintiffs sought (1) a declaratory judgment that Exxon 

had violated its permits (and thus the CAA); (2) a statutory penalty of over 

$600 million (to be deposited in a special fund for use by the EPA pursuant to 

42 U.S.C. § 7604(g)(1)); and (3) a permanent injunction prohibiting further 

permit violations.11 The district court declined to order any of Plaintiffs’ 

requested relief. Plaintiffs now argue that (1) the district court abused its 

discretion in declining to issue a declaratory judgment, (2) the district court 

committed numerous errors (and thus abused its discretion) in declining to 

impose any penalties, and (3) the district court abused its discretion in 

declining to grant a permanent injunction. We will address each form of relief 

in turn.

1. Declaratory Judgment

The district court in this case refused to issue a declaratory judgment 

that Exxon had violated its permits and the CAA, because while it recognized 

that it was “undisputed Exxon violated some emission standards or 

limitations,” it viewed the more important issue as “whether any such 

violations are actionable under the CAA as a citizen suit”—and the court had 

“already made these findings.” Env’t Tex., 66 F. Supp. 3d at 903. Plaintiffs now 

argue that the district court should have issued a declaratory judgment in 

order to “defin[e] and clarif[y] the nature of Exxon’s liability under the CAA.”

A determination of whether to grant declaratory relief is within the 

district court’s discretion, and a decision to deny declaratory relief is thus 

reviewed only for abuse of that discretion. United Teacher Assoc. Ins. Co. v. 

Union Labor Life Ins. Co., 414 F.3d 558, 569 (5th Cir. 2005). As we have

 

11 Plaintiffs also sought attorneys’ fees and costs and appointment of a “special 

master” to monitor implementation of relief, but these are not at issue in the present appeal. 

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previously explained, “[t]he two principal criteria guiding” the decision of 

whether to render a declaratory judgment “are (1) when the judgment will 

serve a useful purpose in clarifying and settling the legal relations in issue,

and (2) when it will terminate and afford relief from the uncertainty, 

insecurity, and controversy giving rise to the proceeding.” Concise Oil & Gas 

P’ship v. La. Intrastate Gas Corp., 986 F.2d 1463, 1471 (5th Cir. 1993) (quoting 

10A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY K. KANE, FEDERAL 

PRACTICE AND PROCEDURE § 2759 (2d ed. 1987)).

In this regard, we have recognized that a declaratory judgment may not 

serve a “useful purpose” when a fact-finder has already “settl[ed] the legal 

relations in issue.” Id.; see also Am. Equip. Co., Inc. v. Turner Bros. Crane and 

Rigging, LLC, No. 4:13-CV-2011, 2014 WL 3543720, at *3 (S.D. Tex. July 14, 

2014) (“Courts in the Fifth Circuit regularly reject declaratory judgment claims 

seeking the resolution of issues that will be resolved as part of the claims in 

the lawsuit.”). In Concise Oil, for instance, Plaintiffs brought an action for 

breach of contract and sought a declaratory judgment that the contract was 

valid; however, we declined to reverse the district court’s determination that 

such declaratory relief was unwarranted, because “the jury’s verdict and our

affirmance . . . on breach conclusively refute[d]” the contention that the 

contract had been terminated (as the defendants maintained). 986 F.2d at 

1471. In the present case, the district court, sitting as fact-finder, found that 

Exxon had committed over 90 actionable violations of its permits (thus also 

violating the CAA). And while we vacate the district court’s judgment, our 

“affirmance” of the broad conclusion that Exxon committed actionable 

violations of its permits diminishes any “useful purpose” that a declaratory 

judgment on that point might otherwise serve. As such, we find no abuse of 

discretion in the district court’s decision not to grant declaratory relief.

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2. Penalties

As noted previously, the district court in this case went beyond merely 

concluding that no statutory penalties under the CAA were warranted for the 

few violations it found actionable—rather, the district court broadly concluded 

that “even if the Court had found every Event and Deviation in this case is 

actionable, the Court would still find Exxon should not be penalized,” and it 

proceeded to analyze each penalty factor from that perspective. Env’t Tex., 66 

F. Supp. 3d at 904. Plaintiffs argue on appeal that the district court erred in 

its assessment of four of the statutory penalty factors, and thus its ultimate 

refusal to assess a penalty was an abuse of discretion. We will begin by 

discussing penalties under the CAA generally and will then address Plaintiffs’ 

arguments with respect to each penalty factor as the district court applied it 

in this case.

i. CAA Penalties Generally

The CAA provides that in a citizen suit, “[a] penalty may be assessed for 

each day of violation.” 42 U.S.C. § 7413(e)(2). The parties agree on appeal that 

imposition of a civil penalty is not mandatory under the CAA; rather, the 

decision whether to impose a penalty rests in the discretion of the court.12 See, 

e.g., Pound v. Airosol Co., Inc., 498 F.3d 1089, 1094 (10th Cir. 2007) (referring 

to “the penalty, if any, to be assessed for a violation of the Act”). In deciding 

whether to impose a penalty, however, a court must “take into consideration” 

seven statutory factors, “in addition to such other factors as justice may 

require.” See 42 U.S.C. § 7413(e)(1) (providing that the court “shall take [the 

factors] into consideration”); Pound, 498 F.3d at 1097–98 (recognizing that the 

 

12 Exxon expends considerable brief space rebutting what it views as “Plaintiffs’ theory 

that civil penalties are mandatory.” However, it is fairly obvious from Plaintiffs’ briefing that 

they concede the point and do not argue that the district court was required to impose 

penalties as a matter of law. 

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statutory factors “must be considered in a CAA penalty analysis”). These 

factors are: 

(1) the size of the business;

(2) the economic impact of the penalty on the business;

(3) the violator’s full compliance history and good faith efforts to comply;

(4) the duration of the violation as established by any credible evidence;

(5) payment by the violator of penalties previously assessed for the same 

violation;

(6) the economic benefit of noncompliance; and

(7) the seriousness of the violation.

42 U.S.C. § 7413(e)(1).

In the present case, the district court concluded that the “size of the 

business” and “economic impact of the penalty” factors weighed in favor of 

assessing a penalty, as “Exxon [would] only be impacted by a large penalty and 

has the ability to pay the alleged maximum penalty.” Env’t Tex., 66 F. Supp. 

3d at 904. Plaintiffs do not contest this conclusion on appeal, for obvious 

reasons. The district court also concluded that because Exxon had previously 

paid $1,423,632 in penalties for some of the violations at issue (as a result of 

TCEQ enforcement actions), that amount should be “deducted from any 

penalty otherwise warranted.” Id. at 907. Plaintiffs likewise do not contest the 

district court’s resolution of this factor. With respect to the remaining factors, 

however, the district court concluded that each one either weighed against 

assessing a penalty or, at most, weighed neither for nor against assessing a 

penalty, and Plaintiffs vigorously contest the district court’s resolution and 

weighing of these remaining factors. We will accordingly address each penalty 

factor in roughly the same order as the district court, keeping in mind that 

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(1) a district court’s analysis of the penalty factors is subject to review only for 

abuse of discretion, and (2) underlying factual findings are reviewed only for 

clear error. Sierra Club v. Cedar Point Oil Co. Inc., 73 F.3d 546, 573 (5th Cir. 

1996); see also United States ex rel. Adm’r of EPA v. CITGO Petroleum Corp., 

723 F.3d 547, 551 (5th Cir. 2013) (quoting Tull v. United States, 481 U.S. 412, 

427 (1987)) (acknowledging that “the process of weighing” similar CWA 

penalty factors is “highly discretionary,” and thus “[a] court’s determination of 

the amount of a penalty to be assessed is reviewed under the highly deferential 

abuse-of-discretion standard”).

ii. Compliance History and Good Faith Efforts to Comply

The district court in this case determined that Exxon’s compliance 

history and good faith efforts to comply with its permits weighed against 

assessment of a penalty. At the outset, the court noted that “the number of 

[events] at issue in this case [was] high” and might suggest that Exxon’s 

compliance history was “arguably inadequate.” Env’t Tex., 66 F. Supp. 3d at 

904–05. However, the court found that based on the extremely large size of the 

facility, it would not be “possible to” eliminate all emissions events, and thus 

“the number of Events and Deviations alone is not the best evidence of 

compliance history” or “good faith effort to comply.” Id. at 905. Rather, the 

district court concluded that Exxon “made substantial efforts to improve 

environmental performance and compliance” based on (1) the “significant 

reduction” in overall unauthorized emissions at the complex “over the years at 

issue in this case”; (2) Exxon’s agreement to undertake environmental 

improvement projects at the complex in an enforcement order with the TCEQ; 

(3) the lack of “credible evidence” that any of the alleged violations “resulted 

from a recurring pattern”; and (4) the “persuasive and credible” testimony from 

a chemical engineer and a former TCEQ official that Exxon’s “concerted 

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effort[s] to comply” had contributed to the Baytown facility’s reputation as a 

“leader[] in maintenance and operation practices.” Id. at 905–06.

On appeal, Plaintiffs raise several challenges to the district court’s 

analysis of this factor. First, Plaintiffs contend that the district court 

essentially “invok[ed] presumed impossibility of compliance ‘as a reason to not 

impose penalties’” despite clear precedent and regulatory language indicating 

that “‘impossibility is not a defense’” to compliance with one’s permits. In this 

regard, Plaintiffs correctly identify that under Texas law, it is not “a defense 

in an enforcement action that it would have been necessary to halt or reduce 

the permitted activity in order to comply with the permit terms and conditions 

of the permit.” 30 TEX. ADMIN. CODE § 122.143(4). In other words, if a regulated 

entity is incapable of operating in compliance with its permits, the “one simple 

and straightforward way . . . to avoid paying civil penalties” is to “cease[] 

operations until it [is] able to” do so. Atl. States Legal Found., Inc. v. Tyson 

Foods, Inc., 897 F.2d 1128, 1141–42 (11th Cir. 1990). However, as the district 

court in this case plainly noted, its invocation of Exxon’s size and the 

infeasibility of achieving full compliance was not an attempt to raise 

impossibility as a bar to imposing penalties; rather, the district court’s 

discussion on this point was simply a recognition that compliance history and 

good faith efforts to comply should be viewed in the context of the size and 

complexity of the emitting facility at issue, and thus “the number of [emissions 

events] does not alone mean Exxon did not make a good faith effort comply” 

with its operating permits for this particular complex. Env’t Tex., 66 F. Supp. 

3d at 905 n.221. We accordingly reject Plaintiff’s first argument.

Plaintiffs next claim that the district court clearly erred in finding that 

Exxon’s agreement to undertake four environmental improvement projects 

constituted a “substantial effort[]” at achieving compliance that demonstrated 

“good faith.” Plaintiffs argue that the agreement merely imposed toothless and 

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overdue requirements in an attempt by Exxon and complicit TCEQ officials to 

“undercut more stringent citizen enforcement,” as evidenced by the fact that 

the agreement “was negotiated, at Exxon’s instigation, only after” Plaintiffs 

gave notice of their intent to file suit. On this point, we think it is possible that 

the agreement between Exxon and the TCEQ is a sterling example of 

regulatory capture at its worst; however, it is also entirely possible that 

Exxon’s explanation for pursuing the agreement—that it wanted more 

“certainty” in enforcement—is valid and that the company did want to take 

good-faith steps towards reducing future compliance issues. Thus, given that 

there are “two permissible views of the evidence,” the district court was 

entitled to take the view it did, and we cannot second-guess that view now. 

U.S. Bank Nat’l Ass’n, 761 F.3d at 431.

Finally, Plaintiffs argue that the district court “did not consider several 

other factors relevant to Exxon’s compliance history,” including “the number 

of similar violations in the past” and “the prior enforcement lawsuit brought 

by the United States.” We were unable to discern, however, in what way 

Plaintiffs believe the district court’s failure to consider these “factors” was 

erroneous—the authority cited in Plaintiffs’ briefing, a CWA order from the 

Southern District of Mississippi applying that statute’s “history of violations” 

penalty factor, merely recognizes that “courts consider . . . the duration and 

nature of” past and present violations under the Act. United States v. Gulf Park 

Water Co., Inc., 14 F. Supp. 2d 854, 864 (S.D. Miss. 1998). Nowhere does the 

Gulf Park court state that specific consideration of the factors listed by 

Plaintiffs is required (or even appropriate) in all cases, and we have no reason 

to believe it would be. We accordingly conclude that the district court in this 

case did not abuse its discretion in determining that the “compliance history 

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and good faith efforts to comply” penalty factor weighed against imposition of 

a penalty.13

iii. Economic Benefit of Noncompliance

The “economic benefit of noncompliance” factor directs courts to 

“consider the financial benefit to the offender of delaying capital expenditures 

and maintenance costs on pollution-control equipment.” CITGO, 723 F.3d at 

552. We have recognized in the Clean Water Act context that “a district court 

generally must make a ‘reasonable approximation’ of economic benefit when 

calculating a penalty under [the Act],” as a finding on the amount of economic 

benefit is “central to the ability of a district court to assess the statutory factors 

and for an appellate court to review that assessment.” Id. at 552, 554 (quoting 

Cedar Point Oil, 73 F.3d at 576). We have also identified at least two general 

approaches to calculating economic benefit: “‘(1) the cost of capital, i.e., what it 

would cost the polluter to obtain the funds necessary to install the equipment 

necessary to correct the violation; and (2) the actual return on capital, i.e., what 

 

13 Plaintiffs raise two additional arguments in their briefing: first, they argue that 

Exxon’s own calculations regarding the potential for implementation of additional emissionsreducing technologies at the complex demonstrate that at least some of the violations were 

preventable, cutting against Exxon’s “good faith efforts to comply.” However, what Plaintiffs 

fail to mention is that Exxon’s witness merely used calculations done by Plaintiffs as to the 

amount of emissions that could have been prevented by implementation of the relevant 

technology in order to show that even “giving every benefit of the doubt” to “Plaintiffs’ theory,” 

implementation of the technology would not have been economically reasonable. As such, 

Plaintiffs have not shown clear error on this basis. 

Second, Plaintiffs note the inconsistency between the district court’s conclusion that 

no “improvements could have been made to prevent recurrence” and the court’s finding that 

the four TCEQ-mandated environmental improvement projects “will reduce unlawful 

emissions.” For reasons we discuss in connection with the “economic benefit of 

noncompliance” factor, we do perceive a tension between the district court’s finding that the 

projects reflect “substantial efforts to improve . . . compliance” and its finding that no 

improvements could have “prevented” any emissions events involved in this case. Env’t Tex., 

66 F. Supp. 3d at 905. Nevertheless, in light of the district court’s other reasons for weighing 

this factor as it did, we cannot conclude that this tension alone renders the court’s overall 

resolution of the “compliance history and good faith efforts to comply” factor an abuse of 

discretion. See CITGO, 723 F.3d at 551 (referring to our review of penalty factors as “highly 

deferential”). 

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the polluter earned on the capital that it declined to divert for installation of 

the equipment.’” Id. at 552 (quoting United States v. Allegheny Ludlum Corp., 

366 F.3d 164, 169 (3d Cir. 2004)).14 In the present case, the district court 

determined that “the most reasonable estimate of Exxon’s economic benefit of 

noncompliance is $0.” Env’t Tex., 66 F. Supp. 3d at 908. In making this 

determination, the district court appears to have concluded that Plaintiffs 

failed to provide credible evidence of any “pollution-control equipment” that 

would have “correct[ed]” any of the alleged violations under either of the 

approaches to calculating economic benefit previously identified. Indeed, the 

district court rejected testimony from Plaintiffs’ expert on pollution-control 

technology, Mr. Bowers, as “vague and undetailed” and found that “neither 

Bowers nor any other evidence credibly demonstrated that any of Bowers’s 

suggested capital improvements would have prevented any of the [violations].” 

Id. at 907–08. Notably, the court also alluded to the four environmental 

improvement projects from the TCEQ agreed enforcement order15 as “an effort 

to reduce emissions and unauthorized emissions events” and appeared to treat 

 

14 We have also recognized multiple approaches to the related question of how to “set 

the amount of the penalty” overall: “some courts use the ‘top down’ approach in which the 

maximum penalty is set . . . and reduced as appropriate considering the . . . enumerated 

[penalty factors] as mitigating factors, while other courts employ the ‘bottom up’ approach, 

in which economic benefit is established, and the remaining . . . elements . . . are used to 

adjust the figure upward or downward.” Id. In the present case, the district court appears to 

have simply weighed the factors independently without adopting either approach—as it felt 

it had discretion to do—and the court noted that the result would be the same under any 

approach. Env’t Tex., 66 F. Supp. 3d at 912 n.267. Regardless, Plaintiffs do not challenge the 

district court’s overall approach to “set[ting] the amount of the penalty.” 

15 The four improvement projects are (1) plant automation venture—installing 

computer programs to monitor, identify, diagnose, and guide operations, which will help 

identify potential events so they can be addressed proactively; (2) fuels north flare system 

monitoring/minimization: additional monitoring probes and “on-line analyzers” that improve 

sensing and characterizing flaring events; (3) BOP/BOPX recovery unit simulators: 

developing and using “high-fidelity process training simulators” to improve operator training 

and reduce emissions events; (4) enhanced fugitive emissions monitoring: using infrared 

technology to locate leaks. Exxon Mobil Corp., 2012 WL 780783, at *8–*9.

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these projects as an indication that Exxon did not receive any economic benefit. 

Id. at 908. On appeal, Plaintiffs contend that the district court erred in ignoring 

evidence of economic benefit stemming from Exxon’s own admissions and the 

TCEQ’s agreed enforcement order. We agree that the district court erred in 

failing to enter findings on whether the four environmental improvement 

projects from the TCEQ order constitute evidence of economic benefit from 

noncompliance.16

Caselaw makes clear that “economic benefit” in the penalty context can 

be calculated as the “benefit realized by a violator from delayed expenditures 

to comply with the [Act].” Allegheny Ludlum Corp., 366 F.3d at 178 (emphasis 

added) (analyzing the “economic benefit” penalty factor under the Clean Water 

Act). Courts applying this factor thus often “start[] with the ‘costs spent’ or that 

should have been spent to achieve compliance,” then “apply an interest rate to 

determine the present value of the avoided or delayed costs.” Id. (quoting 

United States v. Smithfield Foods, Inc., 191 F.3d 516, 530 (4th Cir. 1999)). In 

other words, the effect of spending money to achieve compliance is often not 

mitigation of economic benefit—rather, plaintiffs may point to such 

expenditures as evidence of the regulated entity’s economic benefit to the 

extent the delay in making those expenditures allowed the regulated entity to 

use the money it saved productively. See United States v. Gulf Park Water Co., 

Inc., 14 F. Supp. 2d 854, 863–64 (S.D. Miss. 1998). For instance, the defendants 

in Gulf Park were alleged to have violated the CWA by discharging pollutants 

into United States waters without a required NPDES permit, and in an earlier 

proceeding, the district court ordered them to pay a deposit necessary to 

connect to a regional wastewater system. Id. at 857. The defendants complied 

 

16 Plaintiffs’ argument about Exxon’s “admissions” regarding implementation of 

emissions-reducing technologies is the same argument that we addressed, and rejected, in 

footnote 13, supra. 

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and connected to the system in 1997—subsequently, in assessing the penalty 

factors under the CWA, the district court concluded there was “no doubt that 

the defendants . . . enjoyed an economic benefit in not having expended the 

funds necessary to connect to the Regional system in 1985, in 1989 or in 1991.” 

Id. at 864. The court also noted that while the plaintiffs had the burden of 

establishing economic benefit, “[t]he determination of economic benefit does 

not require an elaborate evidentiary showing,” as it is incumbent upon the 

court to “endeavor to reach” an estimate that “‘encompass[es] every benefit that 

defendants received from violation of the law’” regardless of the inherently 

“imprecise” or “somewhat speculative” nature of the inquiry. Id. at 863–64 

(quoting United States v. Mac's Muffler Shop, Inc., 25 ERC 1369, 1986 WL 

15443, at *8 (N.D. Ga. Nov. 4, 1986)).

Turning to the present case, the district court rejected Mr. Bowers’ 

expert testimony regarding specific measures that could have been taken to 

achieve compliance as not “credible,” and because we are extremely deferential 

to a district court’s assessment of witness credibility, we conclude that this was 

not clearly erroneous. See Canal Barge Co., Inc. v. Torco Oil Co., 220 F.3d 370, 

375 (5th Cir. 2000) (“We cannot second guess the district court’s decision to . . 

. discount a witness’ testimony.”). However, Plaintiffs also elicited detailed 

testimony from their economic benefit expert, Mr. Shefftz, about the benefit 

stemming specifically from the four environmental improvement projects

contained in the TCEQ agreed enforcement order, and Mr. Shefftz made clear 

in his testimony that the calculation of benefit with respect to these projects 

did not rely on Mr. Bowers’ inputs at all17—rather, Mr. Shefftz took 

 

17 Mr. Shefftz did testify that the improvement projects should be considered a “subset 

of the total amounts” drawn from Mr. Bowers’ testimony, but this does not undercut the 

validity of the TCEQ projects as independent evidence of economic benefit. Mr. Shefftz’s point 

was simply that because Mr. Bowers’ suggested improvements would ostensibly encompass 

every measure needed to bring Exxon’s facility to 0 permit violations, the $11.7 million 

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implementation dates from the order itself and cost estimates from one of 

Exxon’s environmental coordinators and used those figures to calculate the 

overall benefit from delaying implementation of the TCEQ projects between 

2005 and 2012. Mr. Shefftz calculated that this amount was approximately 

11.7 million dollars. Based on Mr. Shefftz’s testimony, Plaintiffs argued in 

their proposed findings of fact and conclusions of law that Exxon gained an 

economic benefit of at least this amount by not implementing the TCEQ 

projects earlier—which, according to testimony from Exxon’s own employees 

in the environmental department at the Baytown facility, it could have done.

Nevertheless, while the district court expressly found that Mr. Shefftz’s 

methodology for calculating economic benefit was reliable, it did not treat the 

TCEQ projects as potentially indicative of Exxon’s economic benefit from 

noncompliance. Rather, it treated the projects as an indication that Exxon did 

not receive an economic benefit. In light of the evidence adduced by Plaintiffs, 

we believe the court should have made findings on the critical question of 

whether Exxon received a benefit from failing to implement the TCEQ projects 

earlier. 18

 

benefit calculated by Mr. Shefftz with respect to the TCEQ projects should not be added on 

to the overall estimate of economic benefit. But this does nothing to suggest that the district 

court’s rejection of Mr. Bowers’ testimony also somehow precludes consideration of the TCEQ 

projects as evidence of economic benefit. Indeed, Mr. Shefftz explained that “[c]onceptually, 

it’s a subset of [the overall estimate], but . . . it’s also independent of [Bowers’] expert opinion.”

18 Two arguments raised by Exxon warrant mention here: first, Exxon insisted at oral 

argument that the TCEQ order represents a regulatory decision to “forgo” maximum 

penalties in favor of other “corrective action,” and allowing a citizen suit to “capitalize” on the 

economic costs in the order by using them as economic benefits would be unfair—but this 

argument about compliance efforts “negating” economic benefit is precisely the argument 

that various courts have rejected under the economic benefit factor. As one district court 

recently stated, economic benefit is not “now negated by the fact that [the defendant] is 

working to remedy the issues . . . ,” because “the fact that [the defendant] must pay to bring 

his facility into compliance . . . does not excuse his history of noncompliance.” Magar, 2015 

WL 632367, at *5. Relatedly, in its response to Plaintiffs’ 28(j) letter, Exxon quoted the 

Supreme Court’s opinion in Gwaltney for the proposition that allowing citizens to “file suit . 

. . in order to seek the civil penalties that [a regulatory agency] chose to forgo” would “curtail[] 

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We acknowledge that both of the approaches to calculating economic 

benefit identified in our caselaw require some showing that delayed 

expenditures would be “necessary to correct” the violations at issue in the suit. 

See CITGO, 723 F.3d at 552. In the present case, the district court found no 

credible evidence to indicate that “any of Bowers’s suggested capital 

improvements would have prevented any of the Events or Deviations,” with 

the necessary implication being that none of those improvements would 

“correct” the violations. Env’t Tex., 66 F. Supp. 3d at 908 (emphasis added).

However, because the district court failed to address Plaintiffs’ evidence that 

Exxon received an economic benefit from delayed implementation of the TCEQ 

projects, it did not consider whether those projects were necessary to correct 

the violations. Looking to the order in which the projects are described, the 

TCEQ has specified that they “will reduce emissions at the Baytown Complex, 

including emissions from emissions events.” Exxon Mobil Corp., Docket No. 

2011-2336-AIR-E, 2012 WL 780783, at *8 (Tex. Comm’n on Envtl. Quality Feb. 

29, 2012). Furthermore, some of the projects appear to be correlated in at least 

a general way with at least some of the violations upon which Plaintiffs have 

sued. For example, one project aims to “more effectively monitor and 

troubleshoot” a refinery flare system in order to “improve the identification and 

 

considerably” the regulator’s “discretion to enforce the Act.” Gwaltney of Smithfield, Ltd. v. 

Chesapeake Bay Found., Inc., 484 U.S. 49, 61 (1987). Exxon’s reference to Gwaltney is 

unhelpful, however, because the Supreme Court’s discussion on this point was in the context 

of interpreting the Clean Water Act’s “to be in violation” language as barring citizen suits 

based on “wholly past violations of the Act.” Id. at 60. Yet as both parties acknowledge, the 

Clean Air Act was amended in 1990 to authorize citizen suits against any person “who is 

alleged to have violated” the Act. 42 U.S.C. § 7604(a)(1) (emphasis added). This amendment 

has been viewed as a direct response to Gwaltney, and indeed, neither party in this case 

disputes that the “to have violated” language authorizes citizen suits based on wholly past 

violations of the CAA. See Atl. States Legal Found., Inc. v. United Musical Instruments, 

U.S.A., Inc., 61 F.3d 473, 477 (6th Cir. 1995) (recognizing that “after Gwaltney, Congress 

amended the Clean Air Act . . . explicitly to allow citizen suits for purely historical violations 

. . . .”). Thus, the proposition to which Exxon’s Gwaltney quotation lends support appears to 

no longer apply in CAA citizen suits.

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characterization of flaring events” (Count IV), and the order estimates that the 

projects will specifically achieve reductions in HRVOC emissions (Count III). 

Id. at *7–*8. Finally, the district court itself recognized in its order that the 

projects reflect “an effort to reduce emissions and unauthorized emissions 

events” at the Baytown complex. Env’t Tex., 66 F. Supp. 3d at 908. Thus, given 

that Plaintiffs adduced evidence regarding the benefit that Exxon received 

from foregoing earlier implementation of these projects, we conclude that the 

district court erred in failing to consider that evidence and enter specific 

findings as to whether the projects demonstrate that Exxon received an 

economic benefit from noncompliance. On remand, the district court is 

instructed to enter such findings, which will entail consideration of whether 

the projects are “necessary to correct” the violations at issue in this suit.19

iv. Duration of the Violation

Under the CAA, courts must consider “the duration of the violation as 

established by any credible evidence” in determining whether and to what 

extent a penalty should be assessed. 42 U.S.C. § 7413(e)(1) (emphasis added). 

The district court in this case determined that the “duration of the violation” 

factor weighed neither for nor against imposition of a penalty, because “the 

duration of each of the [violations] differ[ed] tremendously,” and Plaintiffs 

sought maximum penalties for each emissions event regardless of length. Env’t 

Tex., 66 F. Supp. 3d at 906–07. Significantly, the court found that some of the 

 

19 In making its findings on remand, the court should be mindful that the economic 

benefit estimate must “‘encompass every benefit that defendants received from violation of 

the law’” regardless of the inherently speculative nature of the inquiry. Gulf Park, 14 F. Supp. 

2d at 864 (quoting Mac’s Muffler Shop, 1986 WL 15443 at *8). We thus believe that 

compliance expenditures or projects need not be tied specifically to prevention of each 

violation in order to establish that they are “necessary to correct” the violations overall, 

particularly in a case such as this where the violations are extensive and varied. Rather, we 

believe the inquiry should center on whether the projects will ameliorate the kinds of general 

problems that have resulted in at least some of the permit violations upon which Plaintiffs 

have sued. 

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violations were of “long” duration, but because other violations were “short,” 

the court concluded that the factor was neutral overall. On appeal, Plaintiffs 

argue that the district court abused its discretion in concluding that this factor 

did not weigh in favor of imposing a penalty, because the court essentially 

viewed shorter violations as “offset[ting]” the violations of longer duration.

As Plaintiffs note, there is some authority in support of the proposition 

that, when multiple “intermittent” violations over a span of time are at issue, 

a court may consider the overall length of the period during which the 

violations occurred (rather than assessing each violation individually). See, 

e.g., United States v. Midwest Suspension and Brake, 824 F. Supp. 713, 736–

37 (E.D. Mich. 1993); United States v. A.A. Mactal Construction Co., Inc., No. 

89-2372-V, 1992 WL 245690, at *3 (D. Kan. Apr. 10, 1992). In the present case, 

however, the district court appears to have read the statutory language as 

literally mandating that the duration of each “violation” within a series of 

violations over time be considered. Env’t Tex., 66 F. Supp. 3d at 907 (discussing 

the durations of individual events). We need not resolve whether the “duration 

of the violation” factor requires scrutiny of the length of each individual 

violation or allows for assessment of an overall violation period, as even 

assuming the former approach is a proper one, the district court abused its 

discretion in this case by viewing violations as effectively offsetting each other.

An example serves to effectively illustrate the nature of the district 

court’s error: had Plaintiffs cherry-picked from Exxon’s reports only the 

violations that the district court found to be “long,” the court would have been 

unable to use “variability in duration” as a reason to conclude that this factor

was neutral. Thus, given that Plaintiffs included with these long violations a 

host of other short violations, it would make little sense to say that the 

“duration of the violation” factor somehow applies differently to the lengthy 

violations in light of the inclusion of the short ones. Exxon claims that because 

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it was actually the Plaintiffs who “fail[ed] to differentiate events based on 

duration . . . at trial,” the district court “was free to reject Plaintiffs’ all-ornothing approach.” However, the fact that Plaintiffs sought maximum 

penalties for each violation, regardless of length, has no bearing on whether 

the district court appropriately considered “the duration of the violation” under 

the CAA. See Pound, 498 F.3d at 1097–98 (noting that the court must consider 

each statutory factor in a CAA penalty analysis). Indeed, it is undisputed that 

Plaintiffs’ spreadsheets set forth the individual durations of the events at 

issue, and Plaintiffs’ repeatedly made clear the overall time period within 

which violations were alleged to have occurred. Thus, because the district court 

opted to consider the durations of violations individually, it should have 

considered whether any violation, standing alone, was sufficiently long to 

justify imposition of a penalty. Its failure to do so, and its decision to instead 

view the factor as neutral based on overall duration variability, was an abuse 

of discretion.

v. Seriousness of the Violation

In assessing the “seriousness of the violation” penalty factor, courts 

outside of this circuit have looked to the “risk or potential risk of environmental 

harm” posed by emissions/discharges and have found violations to be serious

“even absent proof of actual deleterious effect.” Pound, 498 F.3d at 1099.

Furthermore, courts have recognized that the overall number and quantitative 

severity of emissions or discharges may properly be relied upon as evidence of 

seriousness. See Pub. Interest Research Grp. of N.J., Inc. v. Powell Duffryn 

Terminals Inc., 913 F.2d 64, 79 (3d Cir. 1990) (holding that the district court 

properly relied upon “the large number of gross exceedances in concluding that 

[the defendant’s] violations were serious”). In the present case, the district 

court began its assessment of this factor by noting that “each of the Events and 

Deviations differ tremendously,” with some of the events being “more serious 

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because they emitted higher quantities of emissions” and “many more” of the 

events being “less serious.” Env’t Tex., 66 F. Supp. 3d at 908–09. Thus, in 

“considering the amount of emissions,” the district court determined there 

were many more violations that were “not serious or less serious than were 

more serious.” Id. at 909. The court then went on to examine whether Exxon’s 

violations “adversely affect[ed] human health or the environment” and

concluded there was no “credible evidence” that any of the events “even 

potentially” did so. Id. As with its analysis of the “duration of the violation” 

factor, we conclude that the district court abused its discretion in using “less 

serious” violations to essentially offset violations of a concededly “more serious” 

nature based on emission quantity alone. 

The CAA instructs a court considering penalties to assess “the 

seriousness of the violation.” 42 U.S.C. § 7413(3)(1). When multiple violations 

are at issue, balancing “more serious” violations against “less serious” ones 

clearly runs contrary to this instruction, with the result being that serious 

violations become less so if accompanied by a sufficient number of insignificant 

violations. In other words, given the district court’s recognition that some of 

the emissions in this case were large enough to be considered “more serious,” 

we think it was an erroneous application of the “seriousness of the violation”

factor to conclude that the existence of thousands of additional, smaller 

violations somehow tipped the scale against assessment of a penalty. If 

anything, the inclusion of many more violations with the most serious ones 

would only increase the overall degree of seriousness, rather than lessening it. 

See Powell Duffryn, 913 F.2d at 79. Thus, in light of the district court’s explicit 

recognition that some of the violations were more serious based on the amount 

of emissions alone, we conclude that it was an abuse of discretion to view this 

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factor as weighing against imposition of a penalty due to the existence of 

thousands of additional, “less serious” violations.20

3. Permanent Injunction

The final point of error asserted by Plaintiffs concerns the district court’s 

refusal to grant a permanent injunction prohibiting Exxon from committing 

further permit violations. “We review a district court’s grant or denial of 

injunctive relief for abuse of discretion.” Aransas Project v. Shaw, 775 F.3d 641, 

663 (5th Cir. 2014). “The party seeking a permanent injunction must . . . 

establish (1) success on the merits; (2) that a failure to grant the injunction 

will result in irreparable injury; (3) that said injury outweighs any damage 

that the injunction will cause the opposing party; and (4) that the injunction 

will not disserve the public interest.” VRC LLC v. City of Dallas, 460 F.3d 607, 

611 (5th Cir. 2006) (citing Dresser-Rand, Co. v. Virtual Automation, Inc., 361 

F.3d 831, 847–48 (5th Cir. 2004)). The district court in this case denied the 

request for an injunction based on its finding that any injury to the public 

would not outweigh the damage an injunction would cause Exxon. Env’t Tex., 

66 F. Supp. 3d at 913. Regarding the injury to the public, the district court 

found that any future unauthorized emissions would not be any “more harmful 

to the public or the environment than past [emissions] were.” Id. With respect 

to the damage to Exxon, the district court found that granting a permanent 

injunction would be “excessively intrusive” because it would “entail continuing 

superintendence of the permit holder’s activities by a federal court.” Id.

(quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 

U.S. 167, 193 (2000)).

 

20 Because the district court acknowledged that for at least some of the emissions 

events, the sheer quantity of pollutants emitted made the violations “more serious,” we do 

not find it necessary to address the other asserted errors raised by Plaintiffs with respect to 

this factor.

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On appeal, and although their argument is rather cursory, Plaintiffs 

appear to contend that the district court abused its discretion by “rel[ying] on 

[the] clearly erroneous factual finding[]” that imposition of an injunction would 

significantly burden Exxon. See Aransas, 775 F.3d at 663 (noting that it is an 

abuse of discretion to “rel[y] on clearly erroneous factual findings when 

deciding to grant or deny the permanent injunction”). Plaintiffs argue that 

Exxon “already tracks and reports compliance with its Title V permits” and 

“has immense financial resources which could be devoted to improving 

compliance,” and thus the district court erred in concluding that “even an 

injunction that did no more than require Exxon to prove it is complying with 

its permits” would be excessively burdensome. However, although it may be 

true that Exxon has the resources to comply with any injunction, we do not 

believe that fact alone establishes clear error in the district court’s finding that 

forcing Exxon to continuously prove its compliance with the CAA would be 

“excessively intrusive.” Thus, we conclude that the district court did not abuse 

its discretion in declining to grant a permanent injunction in this case.

III. CONCLUSION

In sum, we conclude that the district court erred in its analysis of Exxon’s 

liability under Counts I through IV and abused its discretion in assessing three 

of the CAA’s mandatory penalty factors. We accordingly VACATE the district 

court’s judgment and REMAND for assessment of penalties based on the 

violations that are properly considered “actionable” in light of this opinion.21

 

21 We note that the district court declined to address the applicability of any 

affirmative defenses, as it was unnecessary given the decision not to award penalties. 

Because we vacate that decision, however, we recognize that the district court may well be 

called upon to rule on Exxon’s claimed affirmative defenses on remand. See, e.g., 30 TEX.

ADMIN. CODE § 101.222(b) (setting forth an affirmative defense for “[n]on-excessive upset 

events”). 

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