Conservation Law Foundation v. Pike Fuels LP

The federal district court for the District of Connecticut denied a motion by the former owner and operator of a bulk petroleum storage terminal in New Haven to dismiss a second amended complaint filed by Conservation Law Foundation (CLF) in a citizen suit alleging that the defendant violated the Clean Water Act by failing to account for the effects of climate change in its operation of the terminal. CLF filed the second amended complaint after the defendant sold the terminal to a nonparty. The court rejected the defendant’s argument that the case was moot, finding that the defendant failed to submit any evidence “to sustain its heavy burden of establishing that the challenged conduct cannot reasonably be expected to recur” and therefore failed to demonstrate mootness with respect to CLF’s request for declaratory relief. The court further concluded that CLF’s request for civil penalties prevented the case from being moot. The court also concluded that CLF had constitutional standing. In addition, the court rejected the defendant’s arguments that CLF failed to state a claim for relief. Although the court questioned whether CLF acted in good faith in alleging “ongoing and continuous” violations at the time it filed its second amended complaint, the court found that the amended complaint sufficiently alleged such a violation because it related back to the original complaint’s adequate allegations. The court declined to rule at this stage of the litigation on whether the “best management practices” provision of the terminal’s National Pollutant Discharge Elimination System (NPDES) permit could be construed to impose climate change-related requirements. The court concluded that a fuller factual record was required to determine the scope of the operative permit, despite the defendant’s argument that the Connecticut Department of Energy & Environmental Protection’s inclusion, for the first time, of “resilience measures” in a 2024 draft and 2025 final version of a NPDES General Permit for the Discharge of Stormwater Associated with Industrial Activities suggested that such measures were not required by the terminal’s operative permit. The court also rejected the defendant’s contention that any such requirements in the permit would render the operative permit impermissibly vague. In addition, the court found that CLF’s allegations that the defendant violated the NPDES permit’s best management practices provision were sufficient to proceed and concluded that the record was not sufficiently developed for it to address whether CLF’s citizen suit impermissibly sought to enforce state standards that exceeded federal standards.

A magistrate judge in the federal district court for the District of Connecticut granted in part Conservation Law Foundation’s (CLF’s) motion to determine the sufficiency of defendant Pike Fuels Limited Partnership’s (Pike’s) answers and objections to CLF’s requests for admission in CLF’s citizen suit asserting that Pike violated the Clean Water Act and an industrial stormwater permit by failing to prepare a bulk petroleum storage terminal in New Haven, Connecticut, for the effects of climate change. The parties previously resolved most of their disputes regarding the adequacy of the defendants’ responses to the requests for admissions, the purpose of which is narrow the scope of issues for trial. The magistrate directed Pike to respond to six requests regarding whether Pike treats storm surge discharges as stormwater discharges and other requests related to how Pike considered the impacts of climate change factors. The court sustained Pike’s objections to six other requests for admissions on the grounds that the requests sought admission of purely legal conclusions or were too vague, imprecise, or speculative, including a request for admission that Pike could “take steps to modify” the New Haven terminal “to withstand the impacts of climate change” and various requests regarding Pike’s awareness regarding climate change factors.

In Conservation Law Foundation’s (CLF’s) citizen suit alleging that Gulf Oil Limited Partnership violated federal environmental laws by failing to prepare a bulk petroleum storage terminal in New Haven for the impacts of climate change, the federal district court for the District of Connecticut granted CLF’s motion to amend its complaint to remedy deficiencies identified by the court when it dismissed certain counts under the Clean Water Act and all counts under the Resource Conservation and Recovery Act for failure to plausibly allege standing. In its earlier decision, the court concluded that CLF’s allegations regarding the “longer-term impacts” of climate change were not sufficient to establish Article III standing, which requires an imminent risk of harm. Although the court found that most of CLF’s proposed new allegations still pertained to climate change’s longer-term impacts, the court ruled that other assertions in the proposed amended complaint and its attachments adequately alleged standing, “albeit just barely.” The court found that the proposed allegations plausibly suggested that a Category 1 or 2 hurricane could be expected to strike the terminal “at virtually any time” and that there was “a substantial risk that such a storm will cause the discharge of pollutants from the Terminal.” The court said these allegations, “coupled with [CLF’s] allegations that climate change is continually increasing the risk that a severe storm will cause a discharge of pollutants from the terminal,” were sufficient to plausibly suggest a substantial risk of harm to CLF’s members in the near term. The court denied CLF’s request to assert a new Clean Water Act claim alleging that Gulf Oil caused or contributed to an exceedance of water quality standards. The court found that CLF failed to show good cause to add this new count.

The federal district court for the District of Connecticut agreed with defendant Gulf Oil LP (Gulf) that Conservation Law Foundation (CLF) failed to allege an injury in fact for purposes of standing in CLF’s citizen suit charging that Gulf failed to prepare its bulk petroleum storage facility in New Haven, Connecticut for the impacts of climate change. The court found that “although the complaint discusses the worsening impacts of climate change on New Haven at great length, Plaintiff does not articulate whether or how such impacts will imminently lead to the discharge of pollutants from Defendant’s Terminal.” The court distinguished the allegations in similar lawsuits in which CLF established standing, finding that the allegations in the other cases concerned not “just the likely future occurrence of major and foreseeable weather events” but “how such weather events would result in the discharge of pollutants, thereby validating Plaintiff’s theory of increased risk of exposure to such pollutants as its near-term injury.” The court also distinguished the other cases based on their allegations that past severe storms had caused pollutant discharges. The court dismissed nine Clean Water Act counts and all Resource Conservation and Recovery Act counts without prejudice, and granted CLF leave to file an amended complaint to address the deficiencies in its standing allegations.

Conservation Law Foundation (CLF) argued that this case was not related to Conservation Law Foundation v. Shell Oil Company (No. 3:21-cv-933) and that transfer to the same judge was not necessary. If the case was transferred, CLF contended that the cases should not be consolidated.

Gulf Oil LP told the court that it agreed that this case was related to Conservation Law Foundation, Inc. v. Shell Oil Company (No. 3:21-CV-933), and that the Shell lawsuit should be transferred to this court. Gulf Oil also contended that the cases could be properly consolidated for discovery and pre-trial purposes only.

On July 7, 2021, Conservation Law Foundation filed two citizen suits asserting that the defendants’ bulk storage and fuel terminals in New Haven, Connecticut violated the Clean Water Act and Resource Conservation and Recovery Act. The complaints alleged that the defendants had not designed, maintained, modified, or operated their terminals to account for “the numerous effects of climate change,” including sea-level rise and more frequent and more severe storms. Conservation Law Foundation sought declaratory and injunctive relief, civil penalties, environmental restoration and compensatory mitigation, and costs of litigation, including attorney and expert witness fees.