United States v. CITGO Petroleum Corporation
801 F.3d 477
| 5th Cir. | 2015Background
- CITGO’s Corpus Christi refinery used CPI oil-water separators upstream of large uncovered equalization Tanks 116 and 117; CPIs removed ~70% of separable oil but Tanks 116/117 were uncovered and accumulated oil.
- State inspection (2002) found 130,000 barrels of oil on the uncovered equalization tanks; Texas authorities treated Tanks 116/117 as oil-water separators under EPA’s Subpart QQQ and cited CITGO.
- A grand jury indicted CITGO on Clean Air Act (Subpart QQQ) counts for operating oil-water separators without required controls and on MBTA counts for "taking" migratory birds that died in the uncovered tanks; trial was bifurcated with mixed results at district court.
- The district court instructed the jury that an oil-water separator is defined by use (functional definition) and convicted CITGO on two Subpart QQQ counts; the court also convicted CITGO (nonjury) of three MBTA misdemeanor counts based on birds found in the tanks.
- On appeal, the Fifth Circuit reviewed whether Subpart QQQ’s definition of "oil-water separator" includes equalization tanks and whether the MBTA criminalizes unintentional/omissive bird deaths.
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument (CITGO) | Held |
|---|---|---|---|
| Whether Subpart QQQ covers equalization tanks (i.e., definition of “oil-water separator”) | Subpart QQQ is functional: any equipment primarily used to separate oil from water (including Tanks 116/117) is covered | The regulation defines oil-water separators by constituent parts (separation tank + skimmers, weirs, grit chambers, sludge hoppers); equalization tanks lack these parts and are governed by Subpart Kb, not QQQ | Reversed: Subpart QQQ requires specified constituent parts; equalization tanks 116/117 are not oil-water separators under QQQ; jury instruction was erroneous |
| Whether the MBTA criminalizes unintentional or omission-based deaths of migratory birds (scope of “take”) | MBTA is strict liability; courts may convict for indirect/accidental takings where deaths are foreseen or proximately caused by defendant’s activity | “Take” retains common-law meaning—intentional, affirmative acts aimed at birds; MBTA lacks ESA/MMPA terms (e.g., “harm,” “harass”) that would expand liability to negligent omissions or incidental deaths | Reversed: “Take” limited to deliberate, direct actions toward birds; MBTA does not criminalize purely unintentional/omissive bird deaths in this context |
Key Cases Cited
- United States v. Williams, 610 F.3d 271 (5th Cir. 2010) (standard for reviewing jury instructions)
- United States v. Clark, 412 F.2d 885 (5th Cir. 1969) (regulations imposing criminal penalties must be strictly construed)
- Corley v. United States, 556 U.S. 303 (2009) (interpretive canon to give effect to all provisions)
- Sweet Home Chapter v. Babbitt, 515 U.S. 687 (1995) (discussion of the word “take” in wildlife statutes and statutory interpretation principles)
- United States v. FMC Corp., 572 F.2d 902 (2d Cir. 1978) (broad reading of MBTA liability for accidental killings—in contrast with this court’s view)
- United States v. Apollo Energies, 611 F.3d 679 (10th Cir. 2010) (upholding MBTA convictions for birds killed in oilfield equipment; court distinguished and declined to adopt this broad approach)