Fifth Circuit Reverses Clean Air Act and MBTA Convictions

On September 4, a Fifth Circuit panel (Davis, Jones, Clement) issued a decision reversing the convictions in a Clean Air Act and Migratory Bird Treaty Act (MBTA) prosecution against CITGO. A March 2002 inspection of a CITGO refinery in Corpus Christi, Texas, found 130,000 barrels of oil floating in uncovered equalization tanks.  Equalization tanks are used to store wastewater temporarily so as to equalize the flow of wastewater to secondary treatment systems.  Under Clean Air Act regulations, if the tanks were oil-water separators, CITGO had to cover them to limit emissions of volatile organic compounds.  Following a trial, CITGO was convicted of two counts of violating the Clean Air Act and three counts of taking migratory birds in violation of the MBTA.

The Fifth Circuit reversed.  With respect to the Clean Air Act counts, the court of appeals held that the district court erred by instructing the jury to find that Clean Air Act regulations for oil-water separators applied if CITGO was using its tanks as oil-water separators.  The court instead interpreted the regulations to define an oil-water separator based on how the equipment is used and on its constituent parts.  Thus, even though CITGO was using the equalization tanks to separate oil from water, the tanks were not necessarily subject to regulation as an oil-water separator.  With respect to the MBTA convictions, the court of appeals—siding with the Eighth and Ninth Circuits and against the Second and Tenth Circuits—held that the MBTA’s prohibition against “taking” migratory birds “is limited to deliberate acts done directly and intentionally to migratory birds.”  The court reasoned that Congress intended to retain a narrow common law definition of “take,” as opposed to more expansive meaning in the Endangered Species Act.

—Todd Aagaard