Litigation | March 14, 2019
A federal judge denied ExxonMobil’s motion to dismiss multiple climate change-related claims brought by Conservation Law Foundation. The foundation’s lawsuit, filed in 2016, alleges that Exxon violated the permit requirements for its oil storage terminal in Everett, Mass. by failing to consider the risk of extreme weather events like flooding and storm surge.
The case, CLF v. ExxonMobil, will proceed after U.S. District Court Judge Mark L. Wolf ruled on Wednesday that most of the claims by CLF should not be dismissed. Those include the 10 counts that detail Exxon’s failure to take into account imminent risks from rising seas and extreme weather, especially risks related to climate change.
The hearing on Wednesday in Boston followed one the judge held in November, after which he dismissed several other claims in the suit and ordered the parties to discuss Exxon’s Clean Water Act permit with the Environmental Protection Agency.
CLF subsequently amended its complaint to focus on the short-term climate-related hazards
Exxon’s terminal, located along the Mystic River just north of Boston, regularly discharges toxic pollutants above lawful levels, and CLF argues that a severe storm or flood poses a grave risk to the surrounding community and environment. According to its amended complaint, “the Terminal is likely to discharge and/or release pollutants into surrounding waters, groundwater, the community, and the air because it has not been designed to withstand flooding associated with storm events and storm surge, tides, sea level rise, and increasing sea surface temperatures.”
“Exxon has put vulnerable communities and the harbor at risk as part of its pattern and practice of deceiving regulators and the public about the risks of climate change,” said CLF President Bradley Campbell. “Exxon has known about these risks and its ongoing spills for years and is failing its most important duty under the law: to avoid spills of oil and hazardous substances that threaten public health and the environment.”
Exxon’s attorney Daniel J. Toal argued that CLF’s claims were not supported by facts. “CLF hasn’t alleged any imminent injury due to climate change or severe weather events,” he said, adding that in the three years since the case was filed there have been no severe storm events impacting the terminal.
Wolf was not convinced by this argument, pointing to National Oceanic and Atmospheric Administration models showing the terminal lies in an area vulnerable to storm surge.
“CLF plausibly alleges that severe weather events pose an imminent risk to the terminal,” he said. He also explained that while the facility’s permit does not explicitly require consideration of climate risk, it does require Exxon abide by good engineering practices. He accepted CLF’s assertion that professional engineers working on large civil works projects [now] routinely take climate change effects into account. “Therefore good engineering practices includes consideration of foreseeable extreme events such as those caused by climate change,” he said.
Exxon indicated it will seek a stay on the case and Wolf tentatively set a hearing date on that motion for May 14.
Campbell praised the judge’s ruling and said he is eager for the case to proceed to trial.
“Today’s decision brings us one step closer to safeguarding the families and businesses near the Mystic and Island End Rivers, protecting the public’s investment of billions for a clean Boston Harbor, and ensuring that Exxon is held accountable for years of risk-taking and law-breaking at the expense of public safety,” he said.