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

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An aim to achieve a quantifiable outcome within a given time-frame, set by an institution such as a national government.

Policy instruments are techniques or tools used by governing authorities to promote certain policies in order to achieve predetermined goals. Put simply, instruments are how a government tries to achieve its goals, with this taxonomy being focused on national policy instruments.

Risk is the potential for adverse consequences resulting from the dynamic interplay between (climate-related) hazards, exposure, and vulnerability of affected human or ecological systems.

Groups  of people who are adversely affected by climate change or the response to it

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Justice is the ethical and political framework that addresses fairness, including issues of responsibility, rights, and structural inequity.

Renewable energy means all forms of energy produced from renewable sources in a sustainable manner.

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Molecules in the atmosphere that play a key role in the greenhouse effect by trapping heat radiating from Earth’s surface.

Area of the economy in which actors engage in identical or related activities.

In human systems, the process of adjustment to actual or expected climate change and its effects, in order to moderate harm, increase resilience or exploit beneficial opportunities. In natural systems, the process of adjustment to actual climate change and its effects; human intervention may facilitate adjustment to expected climate change and its effects.

The management and allocation of funds, assets and investments to meet various objectives

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Either money or something of monetary value is transferred between two or more organisations, people or countries.

Conditions that enhance the feasibility of adaptation options. Enabling conditions include finance, technological innovation, strengthening policy instruments, institutional capacity, multi-level governance and changes in human behaviour and lifestyles.

Actions or measures to adapt freshwater systems to climate change.

Actions to adapt human health, healthcare systems and well-being to climate change.

Actions or measures to adapt freshwater, coastal and marine systems to climate change.

Extreme weather refers to events where a weather variable exceeds (or falls below) a threshold. Meaning it is significantly different from the average or usual weather pattern.

Oil is a combustible liquid fossil fuel composed mainly of hydrocarbons, occurring as crude oil and refined into petroleum products such as petrol, diesel and kerosene.

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This sector involves the wholesale and retail selling of goods.

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This sector provides communication services, software development, and IT solutions.

This sector includes firms and individuals offering specialised expertise in fields such as law, accounting, consulting, science and engineering.

This sector involves the distribution, treatment, and conservation of water resources.

Climate change can have a range of impacts on technological system. Extreme weather events can cause infrastructure failures like power outages or damage to roads and bridges, as well as the impacts from waste following natural disasters. Human activities also cause technological impacts, such as the risks posed by oil spillage and leaks.

Any substance with chemical properties that can cause physical harm to people or damage the environment, including ammonia, carbon monoxide, phosphine, chlorine, arsenic, cadmium, mercury, pesticides, dioxins, microplastics, benzene, asbestos, aflatoxins, fluoride, methanol, and toxins from marine sources.

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