A federal court in Massachusetts declined to dismiss claims asserted by Conservation Law Foundation (CLF) against ExxonMobil Corporation (Exxon) for allegedly violating a marine terminal’s Clean Water Act permit by failing to take into account the impacts of climate change. The court—which issued its decision orally—concluded that CLF’s amended complaint included new allegations of imminent harm sufficient to allege standing and that the complaint alleged sufficient facts to state claims that Exxon violated the Clean Water Act permit by failing to consider weather events induced by climate change in its Storm Water Pollution Prevention Plan (SWPPP). Regarding standing, the court pointed to the complaint’s allegations of severe weather events induced by climate change that were already occurring or would occur in the near future in Massachusetts. In considering whether CLF had stated a claim, the court held that the Clean Water Act permit required consideration of foreseeable severe weather events, including climate change-induced weather events, because the permit required Exxon both to develop a SWPPP using “good engineering practices” and also to proactively address potential discharges of pollutants. The court found that U.S. Environmental Protection Agency (EPA) guidance and allegations of engineers’ practices in the field were sufficient to establish a claim that “good engineering practices” should include consideration of foreseeable severe weather events. The court was not persuaded by Exxon’s arguments that the permit shield doctrine barred CLF’s claims because EPA was aware of climate change when it issued the permit for the terminal; the court also said CLF allegations were sufficient to allege that Exxon had not taken foreseeable severe weather events into account in the SWPPP and in designing the terminal. The court also allowed CLF’s Resource Conservation and Recovery Act claim to proceed, except to the extent that it was based on discharges from point sources covered by the permit, because CLF plausibly alleged an imminent threat of harm. In addition, the court dismissed two claims and allowed two non-climate change claims to proceed, as it had previously indicated it would do, and also dismissed a third claim that it deemed to be subject to the permit shield doctrine. The court set a schedule for Exxon to file a motion for a stay under the doctrine of primary jurisdiction, with oral argument to be held on May 14. The court directed Exxon to issue any subpoena for EPA testimony by April 5 to allow EPA an opportunity to move to quash the subpoena.

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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Massachusetts Federal Court Let Claims Proceed Against Exxon for Failing to Consider Foreseeable Severe Weather Events at Marine Terminal

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