Pre-emptive strike?: Attorney: Valero may have asked AG to intervene in Port Arthur suit

Published 12:17 am Saturday, July 27, 2019

An attorney for the National Environmental Law Center said this week he suspects the Texas Attorney General’s Office was drawn into a lawsuit against Valero Refinery Port Arthur in order to soften restrictions and penalties against the San Antonio-based energy company.

Environment Texas, Sierra Club and the Port Arthur Community Action Network announced May 22 their intention to sue Valero Port Arthur for hundreds of emissions and flaring violations over the past five years.

Under the federal Clean Air Act, the state of Texas had 60 days to either file suit itself or let the environmental groups proceed in their suit. On Day 58 of that waiting period, the state Attorney General’s Office sued, pre-empting the environmental groups from moving forward with the legal action.

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Josh Kratka, senior attorney for the National Environmental Law Center, said there’s still a burden on the attorney general, Ken Paxton, to demonstrate his office is vigorously pursuing the case.

If the AG’s office does little or nothing in the next year, or if they settle with Valero with negligible action and penalties, the environmental groups may file their suit again, Kratka said.

“There is no history of the attorney general taking action” in such suits, Kratka said. Environmental groups have filed court actions in Texas against Shell, ExxonMobil, ChevronPhillips and Pasadena Refining. Neither the Attorney General’s Office nor the Texas Commission on Environmental Quality joined those suits or contacted the environmentalists to help.

Kratka said he suspects ExxonMobil tried to get the Attorney General’s Office to sue them and pre-empt more vigorous legal action from the environmentalists.

“That’s probably the case here,” he said. “In my experience, that happens with some frequency. There are many instances in which the polluter runs to the government and asks to be sued.

“We will try to find out if that’s the case here. We will watch to see what the attorney general does with the suit. If it slaps Valero on the wrist or lets the lawsuit languish,” he said, the environmental groups would go to court to intervene.

A spokeswoman for the Attorney General’s Office said Wednesday she believed that TCEQ had asked the office to file suit.

Valero through its spokespersons did not respond when asked if they had asked the attorney general to sue the company.

Kratka said there is “no particular timeline” for action in the case.