Judge Narrows Climate Change Citizen’s Suit, But Allows Key Parts To Go Forward

A suit claiming that an ExxonMobil facility has not adequately planned for severe events such as storm surges, heavy rainfall and flooding can proceed regarding current and near future conditions.  The suit cannot proceed as to longer term issues, such as sea levels predicted for 2050 or 2100, according to a federal judge in Massachusetts.

This judge’s reasoning indicates that facility operators should ensure that plans and procedures reflect current and near future conditions, especially as they relate to severe storm events and sea levels.  This is particularly the case for facilities that have had any recent water discharge violations that could be traced to inadequate preparations.

Citizen Suit Claims Inadequate Procedures

Conservation Law Foundation v. ExxonMobil is a citizen suit under the provisions of the Clean Water Act and the Resource Conservation and Recovery Act; CLF seeks civil penalties, injunctive relief and attorneys’ fees.  Among the claims, CLF alleges that ExxonMobil must update its Storm Water Pollution Prevention Plan (“SWPPP”) for its petroleum storage terminal in Everett, Massachusetts, to reflect increased potential for pollution incidents due to climate change related risks, such as sea level rise and greater storm severity.

Standing: Does This Issue Belong in a Court?

ExxonMobil claimed that CLF lacked standing to pursue the case because CLF’s climate change concerns do not belong in court.  The judge agreed with ExxonMobil to a point, and excluded CLF’s claims regarding longer term issues, based on lack of standing.  However, the judge ruled that CLF’s allegations that ExxonMobil’s SWPPP and other procedures do not adequately address current and near future conditions could proceed.  The ruling indicates that allegations of inadequate procedures that create an imminent threat of illegal discharges are proper citizen suit matters.  However, courts will not consider longer term matters, and will try to avoid investigation into climate change and its causes, in these citizen suits.

The judge ordered CLF to file an amended suit, and stated that ExxonMobil would have an opportunity to move to dismiss based on other grounds.  I expect ExxonMobil to claim that CLF has no actual evidence to support its allegations, among other responses to the amended suit.

Suits Can Address Alleged Current Inadequacies, but Not Long Term Policy

Groups such as CLF have argued that industry has tried to minimize its climate change effects.  CLF will argue that ExxonMobil and other industry facilities have inadequate procedures, in part because industry does not want to admit that recent climate change has increased the risks from severe storm events.

This ruling indicates that judges will be reluctant to allow these suits to become a forum on climate change and industry contribution.  However, the suit is a reminder that SWPPPs and other procedures must reflect current conditions.  If flood plains have increased or if storm events are expected to be more severe, regardless of the cause, facility procedures must accurately reflect those conditions.

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