The First Circuit Court of Appeals ruled that a federal district court in Massachusetts improperly stayed Conservation Law Foundation’s citizen suit charging Exxon Mobil Corporation (Exxon) with violating its National Pollutant Discharge Elimination System (NPDES) permit as well as the Resource Conservation and Recovery Act by failing to account for climate change factors at a petroleum storage and distribution terminal in Everett, Massachusetts. The district court had granted Exxon’s motion to stay the case under the doctrine of primary jurisdiction to allow the U.S. Environmental Protection Agency (EPA) to issue a decision on Exxon’s application to renew the NPDES permit, which had expired in 2014. The First Circuit found that it had appellate jurisdiction even though the stay order was not a final decision because the stay order rendered Conservation Law Foundation “effectively out of court” due to the length of the stay and its indefinite nature. The First Circuit further found that the stay was unnecessary because abstention under the primary jurisdiction doctrine was improper. The First Circuit concluded that two of the three factors for application of the primary jurisdiction doctrine could weigh in favor of a stay—(1) issuing the permit was “at the heart” of the task assigned to EPA by Congress, and (2) the court assumed for the sake of argument that “agency expertise would be helpful to unravel which climate models most accurately capture the effects of the climate change factors” that Exxon allegedly failed to take into account. The First Circuit concluded, however, that the third factor—whether EPA’s decision would materially aid the court—outweighed the other factors and that EPA’s determination on the permit application “seems to us largely irrelevant to whether ExxonMobil has violated the conditions of the permit currently in effect” and that it was “wholly speculative whether the issuance of the permit will illuminate EPA’s beliefs as to the best climate change models or how good engineers would respond to them.” The court also found that a need for “national uniformity” was not at issue in this case. The First Circuit therefore disagreed with the district court’s determination that EPA’s decision on the permit could render much of the case moot, as well as the district court’s belief that deferring to EPA would not delay resolution of the case. The First Circuit vacated the stay order and remanded to the district court.

Citizen suit alleging violations of RCRA and Clean Water Act for failure to take action to prepare marine terminal for climate change.

Conservation Law Foundation v. ExxonMobil Corp.

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First Circuit Vacated Stay Order in Lawsuit Alleging Exxon Failed to Prepare Petroleum Terminal for Climate Change

Filed

United States of America

Massachusetts

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First Circuit Vacated Stay Order in Lawsuit Alleging Exxon Failed to Prepare Petroleum Terminal for Climate Change

Policy instrument

Risk

Impacted group

Fossil fuel

Economic sector

Adaptation/resilience

Finance