By Karen Savage
In the wake of Hurricane Harvey’s climate change-fueled rains and the widespread destruction of Hurricane Irma, a Massachusetts judge has affirmed that an environmental law and advocacy group can sue ExxonMobil for failing to protect its Everett, Mass. oil terminal from the impacts of climate change. The judge also said that while he doesn’t want climate change to turn this into “the Scopes Monkey Trial of the 21st century,” current and imminent climate impacts are a legitimate claim.
The group, Conservation Law Foundation (CLF) , filed its suit last year in the U.S. District Court for the District of Massachusetts, alleging that climate change is already impacting the facility, and as a result, Exxon has discharged oil and other pollutants into the Island End River, a tributary of the Mystic River.
During oral arguments in a hearing on a motion to dismiss filed by Exxon, Judge Mark Wolf was quoted as saying, that he did not want this to become “the Scopes Monkey trial of the 21st century.” He did not include that comment in his written order the following day.
In his written order, the judge partially approved Exxon’s motion by dismissing claims by CLF related to the distant future—after 2050 or beyond the length of Exxon’s Clean Water Act permit— but refused to dismiss claims on impacts that have already occurred or that he said are imminent or likely in the nearer future.
“CLF is quite pleased with the judge’s decision,” said Bradley Campbell, president of CLF. “Our focus in this case has always been on immediate and imminent threats to the communities and waters surrounding the terminal caused by ExxonMobil’s unlawful disregard of weather risks, and that is exactly how the court has framed the issue.”
This is believed to be the first case to challenge the adequacy of a Clean Water Act permit based explicitly on the impacts of climate change. CLF filed a similar suit in August, alleging that Shell failed to protect the Providence River and Rhode Island communities near its terminal from impacts of climate change.
Michael Gerrard, a professor of environmental and climate change law at Columbia University and chair of the faculty at Columbia’s Earth Institute, said the written decision in the Massachusetts case is important.
“I don’t think there’s any particular legal significance in what the judge said orally from the bench,” said Gerrard, who added that climate change will likely come up in the case, but would be limited to current or near future impacts and events and not those that are decades away.
Gerrard said that does not diminish CLF’s case.
“It narrows the focus, but we have known – and now know even better after Harvey and Irma — that extreme weather events are not a thing of the distant speculative future,” Gerrard said.
Gerrard said a more significant part of the decision is that the judge conferred standing—or established the plaintiff’s right to bring forward the case due to harms allegedly caused by Exxon—based on the plaintiff’s aesthetic and recreational interests in the river.
“This means that plaintiffs could be found who could establish standing in most bodies of water, because wherever there are aesthetic or recreational interests they would have standing,” said Gerrard. CLF alleges that because of Exxon’s harmful discharges, its members are unable to boat, swim, fish and otherwise enjoy the river.
“It allows them to press these claims under the Clean Water Act and other laws preventing release of pollutants into the environment,” he said, adding that the case is important in the assertion of claims that industrial facilities need to take precaution against foreseeable extreme weather events and is a significant victory for plaintiffs who might pursue similar cases.
In the written order, the judge also determined that the CLF’s case includes “facts sufficient to prove that the ExxonMobil Everett Terminal is discharging pollutants” in violation of its National Pollution Discharge Elimination System (NPDES) permit and CLF has a “plausible claim that there is ‘substantial risk’ that severe weather events, such as storm surges, heavy rainfall, or flooding” will cause additional discharges in the “near future.”
According to the EPA, heavy precipitation events have increased by 70 percent in the Northeast since 1958. Rising sea levels are eroding protective wetlands, increasing damage from coastal storms. Increased heavy rain events/downpours and rising sea levels are both attributed to climate change.
“As recently as two weeks ago, Exxon was forced to admit that their Texas facility was not prepared for climate change only after the facility was inundated and released toxic chemicals far beyond the legal limit into the atmosphere,” Campbell said. “Exxon has an opportunity to act in Massachusetts before it’s too late, but instead they’re focused on covering up facts and dismissing any fault.”
According to Doug Corb, a NPDES permit writer for EPA Region 1, Exxon’s current permit expired on January 1, 2014, but has since been administratively continued. Corb said all conditions and requirements of administratively continued permits remain in effect and there is no statutory deadline for re-issuing a permit.
Investigative reporting by InsideClimate News and the Los Angeles Times revealed that Exxon knew about the harmful effects of climate change for decades, yet still funded climate denial and cast doubt on the imminent impacts of climate change.
The New York attorney general’s office is investigating whether Exxon deceived its investors by downplaying the risks of climate change and the Massachusetts attorney general is seeking information regarding whether Exxon mislead consumers and investors on the impacts of fossil fuels on climate change and the impact of climate change-related risks.
Exxon officials did not respond to a request for comment.
“It won’t be essential for the plaintiffs in these kinds of cases to prove that climate change is the cause—I think that the increased intensity of these events speaks volumes in and of itself,” said Gerrard.