The Clean Air Act is a little bit of an odd one. See, for instance, the Fifth Circuit’s fascinating and excellent panel opinion in Environment Texas Citizens’ Lobby v. ExxonMobil, where the Fifth Circuit - judge Costa writing, who is just always outstanding at elucidating complex stuff - explained how people can sue even though they can’t get damages, subject to limitations.
Judge Costa’s opinion is wonderful. Judge Oldham’s dissent is also wonderful. One quote, to tell you what’s up:
I write separately to emphasize that our precedents in this area are a mess. The majority admirably attempts to make sense of them. But I’m afraid that task is too big for any panel. Eventually, our en banc court should clean up this confusion.
And then there’s Shrimpers and Fishermen of the RGV v. Texas Commission on Environmental Quality.
The Texas Commission on Environmental Quality, which is responsible for making these types of decisions, approved a liquid natural gas facility in Texas. The shrimpers and fishermen of the Rio Grande Valley didn’t like that, so they fought it, first with the TCEQ, then with the Fifth Circuit. The shot to the Fifth Circuit was a long shot, but interestingly, the Fifth Circuit didn’t dispose with it on that basis. It reached standing, and held that the fishermen hadn’t shown that they may be adequately harmed by the LNG facility that they could bring a claim in the first instance:
Even if we charitably construe this argument as claiming that individuals living, working, and driving within a roughly fourteen-mile radius of the proposed facility (i.e., Petitioners’ members) will suffer an increased risk of harm that those living further away will not suffer, these claims are too generalized and Petitioners have not produced enough evidence to show an actual or imminent harm.