United States v. CITGO Petroleum Corporation
45 Envtl. L. Rep. (Envtl. Law Inst.) 20166, 801 F.3d 477, 81 ERC (BNA) 1018 (2015)
Sections
Rule of Law:
Under the Clean Air Act regulations, an equipment definition using the phrase 'consisting of' is exhaustive and requires the presence of listed components to apply; under the Migratory Bird Treaty Act, the term 'take' is limited to intentional affirmative acts directed at wildlife, such as hunting or trapping, and does not cover unintentional bird deaths caused by industrial activity.
Facts:
- CITGO operated a petroleum refinery in Corpus Christi, Texas, which utilized a wastewater treatment system.
- The system included two 'CPI' oil-water separators that removed approximately 70% of the oil from the water, followed downstream by two large equalization tanks (Tanks 116 and 117).
- These equalization tanks were used to manage the flow of wastewater to secondary treatment systems and to skim excess oil during unpredictable discharges.
- While the upstream CPI separators had roofs, Tanks 116 and 117 were open-topped, allowing oil to pool on the surface.
- A surprise inspection revealed approximately 130,000 barrels of oil floating in the uncovered equalization tanks.
- Various migratory birds, including pelicans and ducks, landed on the open, oil-covered tanks and died after becoming coated in oil.
- Federal regulations (Subpart QQQ) mandated that 'oil-water separators' must have roofs to limit emissions, but the regulations defined such separators as equipment 'consisting of' specific parts like weirs and grit chambers, which Tanks 116 and 117 lacked.
Procedural Posture:
- The United States indicted CITGO in the Southern District of Texas for violations of the Clean Air Act and the Migratory Bird Treaty Act.
- The case proceeded to a jury trial for the Clean Air Act counts and a bench trial for the Migratory Bird Treaty Act counts.
- The jury found CITGO guilty on two counts of knowingly operating oil-water separators without emission control devices.
- The District Court judge found CITGO guilty of three counts of 'taking' migratory birds.
- CITGO filed motions to set aside the verdict and vacate the convictions, arguing erroneous jury instructions on the Clean Air Act and misinterpretation of the MBTA.
- The District Court denied CITGO's motions and entered judgment against them.
- CITGO appealed the convictions to the U.S. Court of Appeals for the Fifth Circuit.
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Issue:
Does a wastewater equalization tank qualify as a regulated 'oil-water separator' under the Clean Air Act if it lacks specific components listed in the regulation's definition, and does the Migratory Bird Treaty Act's prohibition on 'taking' birds criminalize unintentional bird deaths caused by passive commercial operations?
Opinions:
Majority - Jones
No, an equalization tank is not an 'oil-water separator' under the Clean Air Act if it lacks the statutorily listed components, and the Migratory Bird Treaty Act does not criminalize unintentional bird deaths resulting from lawful commercial activity. regarding the Clean Air Act (CAA) convictions, the Court applied strict statutory interpretation. The relevant regulation, Subpart QQQ, defines an oil-water separator as equipment used to separate oil from water 'consisting of' a separation tank, skimmers, weirs, grit chambers, and sludge hoppers. The phrase 'consisting of' introduces an exhaustive list. Because CITGO's equalization tanks lacked weirs, grit chambers, and sludge hoppers, they did not fit the regulatory definition, regardless of whether they functionally separated oil from water. The Court rejected the government's argument that the definition was purely functional, noting that such an interpretation would conflict with other regulations (Subpart Kb) specifically governing storage vessels. Regarding the Migratory Bird Treaty Act (MBTA), the Court held that the term 'take' must be read according to its common law origin, which defines it as reducing animals to human control (e.g., hunting, trapping). The Court distinguished the MBTA from the Endangered Species Act, which includes broader terms like 'harass' or 'harm.' The Court reasoned that 'taking' requires an affirmative, intentional act, not a passive omission or accidental result of commercial activity. Expanding the definition to include strict liability for all foreseeable bird deaths would lead to absurd results, criminalizing owners of cats, cars, and buildings with windows.
Analysis:
This decision significantly limits the scope of federal environmental criminal liability for industrial operators in the Fifth Circuit. By strictly construing the phrase 'consisting of' in the Clean Air Act regulations, the court signaled that agencies must draft precise definitions if they intend to regulate specific equipment; functional similarity is insufficient for criminal liability. More broadly, the ruling on the MBTA created a distinct circuit split. While the Second and Tenth Circuits have upheld strict liability for incidental bird deaths (like those in oil pits), the Fifth Circuit joined the Eighth and Ninth Circuits in limiting the MBTA to intentional acts like hunting. This interpretation protects businesses from criminal prosecution for accidental bird deaths caused by normal operations, such as wind turbines, power lines, or open tanks, provided there is no specific intent to capture or kill the wildlife.
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