Conservation Law Foundation, Inc. v. Shell Oil Products US

The federal district court for the District of Rhode Island ruled that whether the terms of a permit for a bulk petroleum storage and distribution facility in Providence required consideration of climate change factors was a question of fact to be decided at trial. The court therefore denied the defendants’ motion for partial summary judgment dismissing three counts in a citizen suit brought by Conservation Law Foundation, Inc. The defendants had argued that the issuance by the Rhode Island Department of Environmental Management of a new Multi-Sector General Permit for Stormwater Discharge Associated with Industrial Activity in 2024 that explicitly imposed climate change-related obligations demonstrated that duties to consider climate change factors did not previously exist. The court concluded, however, that “whether the revised terms clarified a preexisting obligation or instead introduced an entirely new requirement is not a strictly legal exercise.” Instead, the court found that the answer to the question would depend on “facts surrounding regulatory practice, industry expectations, and what conditions were reasonably understood to fall within expected operational parameters of ‘Good Engineering Practices’ and ‘Best Management Practices’ at the time” (which were operative terms for the stormwater pollution prevention plan required by the facility’s permit). The defendants therefore failed to meet the initial burden of demonstrating no genuine dispute of material fact.

In Conservation Law Foundation’s (CLF’s) citizen suit alleging that Shell defendants failed to prepare a bulk storage and fuel terminal in the Port of Providence (Providence Terminal) for the impacts of climate change, the federal district court for the District of Rhode Island granted in part and denied in part each side’s motion to compel discovery. The court ruled that Shell must provide factual responses to questions regarding the defendants’ “knowledge and intent in designing, constructing and operating the Terminal with regard to specified flood/storm risks,” rejecting the argument that the documents and admissions sought were more appropriate for expert discovery. The court also rejected the Shell defendants’ contention that requested documents related generally to climate change and not restricted to the Providence Terminal were not relevant. The found, however, that CLF’s request for admissions about what is “possible” called for “irrelevant speculation.” Regarding the Shell defendants’ requests for documents related to “CLF’s institutional knowledge, fundraising, advocacy and communications,” the court found that the discovery was not relevant to the claims and defenses in issue and that to the extent it was “peripherally relevant” was “hopelessly overbroad,” though the court left open that possibility that such information could be relevant and proportional in a different circumstance. The court said both CLF and the Shell defendants could not refuse to respond based on the purported vagueness of requests, finding that the parties must respond based on their reasonable understandings of the requests.

A magistrate judge in the federal district court for the District of Rhode Island ruled on four motions to compel discovery in Conservation Law Foundation’s (CLF’s) citizen suit seeking to hold Shell Oil Products US and certain affiliates liable for failing to prepare a bulk storage and fuel terminal in Providence for the effects of climate change. The court noted that it viewed “thorough and thoughtful” discovery rulings by the District of Connecticut in a similar lawsuit related to a New Haven facility as “relevant to the scope of discovery in the instant case.” The Rhode Island court allowed CLF to conduct a deposition of a Shell “metocean engineer” who had authored a case study regarding climate impacts on a facility in Louisiana on the Gulf of Mexico coast. The court agreed with the plaintiff that the engineer “likely possesses relevant information regarding the issue of best industry practices” and found that the defendants did not show any undue burden, and also rejected the defendants’ contention that CLF improperly sought an unretained expert opinion. The court denied CLF’s motion to compel more responsive answers to interrogatories that CLF said were relevant to their operator liability claims, and found that many of CLF’s requests for additional production of documents from non-party Shell affiliates were “overly broad and disproportionate to the needs of the case,” as were eight other document requests. The court did, however, order production of non-duplicate documents in response to some requests for documents from non-parties as well as production of documents in response to four “more narrowly tailored” requests regarding “relatively narrow subject matters.”

The federal district court for the District of Rhode Island issued an order setting forth the course of discovery in Conservation Law Foundation’s citizen suit alleging that Shell Oil Products US and affiliates failed to prepare a bulk storage and fuel terminal in Providence, Rhode Island, for the impacts of climate change. The court noted that Conservation Law Foundation sought “far-reaching discovery”—including requests for documents concerning other Shell facilities and Shell’s knowledge of climate change—that was likely to be “very time consuming and expensive.” The defendants argued that they had agreed to provide some documents regarding corporate policies and that a deposition of the East Coast Lead Facility Engineer would be a more efficient discovery mechanism. The court concluded that “a more measured approach is warranted” before “potentially going down th[e] path” sought by the plaintiffs. The court therefore directed the defendants to continue producing documents they had agreed to produce and to produce the engineer for a deposition regarding how the Providence Terminal manages precipitation and flooding risks and who makes decisions for the terminal. The court further directed that the parties should use the results of this discovery “to continue to confer in good faith regarding the scope of document production” and said that if disputes remained, they could refile their motion to compel and cross-motion for protective order.

A magistrate judge in the federal district court for the District of Rhode Island recommended that the district court deny a motion for judgment on the pleadings dismissing claims against non-owner/operator defendants in Conservation Law Foundation’s lawsuit alleging that Shell Oil Products US and related companies violated environmental laws by failing to prepare a bulk storage and fuel terminal in Providence, Rhode Island, for climate change impacts. The magistrate found granting the motion would requiring contradicting an earlier ruling on a motion to dismiss, which was the law of the case. The magistrate further found that the plaintiff stated plausible claims that the non-owner/operator defendants were directly liable under the Clean Water Act and the Resource Conservation and Recovery Act.

Conservation Law Foundation (CLF) filed a motion to compel production of documents in its lawsuit asserting that Shell Oil Products US and related entities (Shell) violated the Clean Water Act and Resource Conservation and Recovery Act (RCRA) by failing to prepare a bulk storage and fuel terminal in Providence, Rhode Island, for climate change impacts. CLF described the parties’ primary dispute as related to the relevance of documents that do not expressly refer to the Providence facility, such as “corporate policies that set standards for the resilience of its infrastructure to severe weather risks and climate change, as well as analyses of pollution discharges from other Shell facilities during major storms.” CLF argued that such documents were relevant because Shell had represented to the public and to regulators that it had a “centralized approach and process” to evaluating and addressing physical risks at its facilities while arguing in this litigation that management at individual facilities conduct climate change and severe weather risk analyses. CLF said the documents sought were relevant to the issue of whether defendants satisfied their obligation to adequately prepare the facility for severe weather and also to other issues, including what actions are required under the “good engineering practices” standard in the facility’s permit. The motion also addressed other disputes, including a disagreement over a time period limitation.

The federal district court for the District of Rhode Island for the most part denied a motion to dismiss a citizen suit asserting that Shell Oil Products US and other defendants (Shell) failed to prepare a terminal in Providence for the impacts of climate change. Although the court found that the plaintiff, Conservation Law Foundation (CLF), lacked standing to the extent its claims relied on “future harms,” the court concluded that CLF had asserted “certainly impending harm” as to “near-term harms from foreseeable weather events.” In particular, the court found that the complaint “makes clear that a major weather event, magnified by the effects of climate change, could happen at virtually any time, resulting in the catastrophic release of pollutants” due to Shell’s alleged failure to adapt. The court further found that CLF’s members’ alleged injuries to their use and enjoyment of waters and roads in the terminal’s vicinity flowed from the alleged failure to prepare the terminal for the impacts of climate change. For the same reasons, the court found that the case was ripe for adjudication. The court also concluded that the complaint stated claims under the Resource Conservation and Recovery Act (RCRA), except to the extent the claims were based on federal, instead of state, RCRA regulations. The court found that CLF pleaded facts satisfying the “imminent and substantial endangerment” standard on the theory that the alleged failure to prepare the terminal for foreseeable weather events was an imminent endangerment. The court also found that the complaint stated claims under the Clean Water Act related to the terminal’s National Pollutant Discharge Elimination System permit. The court said the plaintiff’s claims required interpretation of the permit, including whether its requirement of “good engineering practices” required preparing the terminal for catastrophic weather. In addition, the court declined to exercise its discretion to abstain or to apply the doctrine of primary jurisdiction.

On August 13, 2020, a federal district court in Rhode Island will hear oral argument on the motion to dismiss the citizen suit brought against Shell Oil Products US and other defendants (Shell) regarding the defendants’ alleged failure to prepare a terminal in Providence for the impacts of climate change. At the court’s invitation, Rhode Island submitted an amicus brief asserting that doctrines of primary jurisdiction and abstention generally were not appropriate in citizen suits and that neither doctrine provided a basis for the court to stay this case or decline to adjudicate the claims.

On January 12, 2018, Shell Oil entities (Shell) moved to dismiss the citizen suit brought by Conservation Law Foundation (CLF) in the federal district court for the District of Rhode Island alleging that Shell violated the Clean Water Act and the Resource Conservation and Recovery Act (RCRA) at a bulk storage and fuel terminal in Providence. CLF alleged in an amended complaint filed in October 2017 that Shell had not taken information about climate change risks into account in designing, constructing, and operating the terminal. CLF asserted that Shell’s disregard of the risks and continuing failure to protect the terminal from the risk made Shell liable for violations of the Clean Water Act and RCRA. In the motion to dismiss, Shell argued that CLF lacked standing because the alleged injuries were “highly speculative, remote, or hypothetical” and also flowed from severe precipitation and flooding events that were “wholly unrelated” to the defendants. Shell also asserted that the complaint’s adaptation claims were not ripe and that CLF failed to state a claim under either the Clean Water Act or RCRA because its “failure to adapt” allegations amounted to “conclusory legal statements.” Shell also said the court should defer to Rhode Island—which Shell said was “actively evaluating new measures for controlling the flow of stormwater discharges attributable to potential severe precipitation and flooding related to climate change”—and abstain from considering the Clean Water Act adaptation claims. Shell further asserted that the RCRA claim should be dismissed under the doctrine of primary jurisdiction because Rhode Island’s environmental agency was overseeing cleanup of the facility and was obligated by statute to take climate change impacts into account. In addition, Shell said the court did not have subject matter jurisdiction over the terminal’s former owner/operator.

Conservation Law Foundation (CLF) filed a citizen suit against Shell Oil entities (Shell) alleging that they had failed to comply with the Clean Water Act and a Rhode Island Pollutant Discharge Elimination System permit at their bulk storage and fuel terminal in Providence, Rhode Island (Providence Terminal). CLF alleged that the Providence Terminal was “at risk from coastal flooding caused by sea level rise, increased and/or more intense precipitation, increased magnitude and frequency of storm events, and increased magnitude and frequency of storm surges—all of which will become, and are becoming, worse as a result of climate change.” CLF also alleged that the terminal’s location, elevation, and lack of preventative infrastructure made it “especially vulnerable to these risks” and that Shell Oil had not taken action to address these vulnerabilities at Providence Terminal, despite having “long been well aware” of climate change’s impacts and risks and having incorporated such risks in “ongoing company investments,” including projects off the coast of Nova Scotia and in the North Sea. CLF asserted that Shell’s “knowing disregard of the imminent risks” of climate change and failure to fortify the Providence Terminal against such risks constituted violations of the Clean Water Act. CLF identified 19 separate causes of action for violation of the Clean Water Act and sought civil penalties, environmental restoration and compensatory mitigation to address past violations, and declaratory and injunctive relief to prevent future violations.