Article published in Texas Observer
Earlier this month, a federal appeals court dealt Corpus Christi residents a harsh blow, overturning the criminal conviction of Citgo Petroleum Corp. for violations of the Clean Air Act. The ruling by a three-judge panel of the U.S. Fifth Circuit Court of Appeals is the latest in a legal drama that has dragged on for more than a decade.
The Citgo conviction in 2007 marked the first time a major oil company was found guilty of criminal air pollution by a jury. It was also the first time that victims of air pollution were recognized under the Crime Victims’ Rights Act. Prosecutors established that two mammoth oil-water separator tanks lacked emission controls and were exposing residents of Hillcrest, a neighborhood adjacent to the Citgo refinery, to dangerous levels of benzene, a known carcinogen.
Last summer, the federal judge in the case, after seven years of delay, finally reached a sentence, fining the multibillion oil giant a mere $2 million. The judge also denied restitution to the victims, including reimbursements for medicals costs or moving away from the refinery. The decision by the Fifth Circuit panel removes even a symbolic victory.
“The most disappointing thing is we fought so hard to get the victims victim status, and this just wipes that away,” said Melissa Jarrell, a criminal justice professor at Texas A&M-Corpus Christi. “[The panel decided that] not only are they not victims, but Citgo did not commit a crime and that to me is just impossible given the evidence.”
The unanimous Fifth Circuit decision turned on a technical point: the definition of oil-water separator tanks. Such tanks must be covered to prevent significant emissions. During Citgo’s trial, the court instructed the jury that any tank used to separate oil and water should be construed as, you got it, an oil-water separator tank. But the Fifth Circuit said that oil-water separator tanks are only those that are used for that purpose and have certain physical components. Those at Citgo lacked the components and therefore were not subject to the pollution controls, the justices found.
“Whatever technicality they’re claiming doesn’t change the fact that they had benzene in those tanks,” said Daniel Peña, a Hillcrest resident. “Whatever they called the tanks doesn’t matter — the fact is they had benzene there and it was an open container in the neighborhood.”
But according to the Fifth Circuit, if the tanks weren’t oil-water separators, Citgo didn’t violate the Clean Air Act by keeping them uncovered.
“That is an extremely contorted analysis of the English language,” said Bill Miller, a former EPA attorney who was on the original prosecution team. In its analysis, he said, the three-judge panel failed to consider the evidence that Citgo removed tens of thousands of gallons of oil from the top of the two tanks each time inspectors came by, passing them off as equalizer tanks.
The tanks at issue are each 240 feet in diameter, making them wider and nearly as long as a football field. They’re each 30 feet tall, or three stories high. When Texas Commission on Environmental Quality inspectors showed up at the Citgo refinery for a surprise inspection in May 2002, they found 130,000 barrels of oil in the uncovered tanks, triggering the protracted legal battle.
“At times [the tanks] contained oil eight to 10 feet deep, oil that constantly emitted hazardous fumes,” Miller said. During the trial, the prosecution showed that Citgo’s own internal experts advised the company to put emissions controls on the tanks. The Department of Justice demonstrated that the tanks remained uncovered for at least a decade.
“I think this Fifth Circuit opinion says a lot about how Citgo did its best,” DeGuerin said. “It’s just a truth that refineries are dirty and smelly and they’re dangerous, but we’ve gotta have ‘em and Citgo has a terrific record for safety and being a good corporate member of the community.”
The ruling could also have implications for the protection of migratory birds. Besides the felony Clean Air Act violations, Citgo was found guilty of three misdemeanor counts of violating the Migratory Bird Treaty Act after 35 birds were found in the two tanks. In its opinion, the panel wrote that the act was intended to protect against intentional attacks, such as poaching. The judges compared Citgo’s “taking” of the birds to a driver accidentally running over a bird or power lines zapping fowl.
Miller said the EPA should encourage the Department of Justice to appeal the decision and request that a larger panel of Fifth Circuit judges consider the case. The EPA didn’t return requests for comment, and a DOJ representative told the Observer only that they are “considering next steps.” The deadline for filing an appeal is October 16.
The Fifth Circuit’s decision sends the message that the rules don’t apply to big corporations, Jarrell said. “Corporations have the power to fight these every step of the way and why would the government want to take on a case like this if this is what it’s going to look like?”