Description: Citizen suit alleging that Shell Oil violated the Clean Water Act by failing to prepare a bulk storage and fuel terminal in Providence, Rhode Island, for climate change impacts.
Conservation Law Foundation, Inc. v. Shell Oil Products US
Filing Date Type File Action Taken Summary 09/28/2020 Memorandum and Order Download Motion to dismiss granted in part and denied in part. Federal Court in Rhode Island Allowed Failure-to-Adapt Claims to Proceed. 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. 09/10/2020 Response Download Response filed by defendant to brief of amici curiae State of Rhode Island and Rhode Island Department of Environmental Management. 07/30/2020 Amicus Brief Download Brief filed by Rhode Island and the Rhode Island Department of Environmental Management as amici curiae to address questions posed by the court's June 30, 2020 order. Rhode Island Weighed in to Support Adjudication of Claims in Climate Change Adaptation Suit Against Shell. 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. 06/30/2020 Order Text order issued by court. The court invited the State of Rhode Island and the Rhode Island Department of Environmental Management to file amicus curiae briefs, particularly with respect to the doctrines of abstention and primary jurisdiction. 11/13/2019 Reply Download Reply memorandum filed in support of motion to dismiss. 11/01/2019 Objection Download Objection filed by Conservation Law Foundation to defendants' motion to dismiss. 10/11/2019 Motion to Dismiss Download Motion to dismiss filed. 10/08/2019 Complaint Download Third amended complaint filed. 08/02/2019 Complaint Download Second amended complaint filed. 07/23/2019 Order Motion for leave to amend complaint granted. Rhode Island Federal Court Allowed Plaintiff to Amend Complaint in Lawsuit Challenging Shell Terminal’s Climate Readiness. The federal district court granted Conservation Law Foundation’s (CLF’s) motion for leave to amend its complaint in its lawsuit asserting that Shell Oil Products US and other defendants failed to prepare the Shell Terminal in Providence, Rhode Island for the impacts of climate change. The court allowed CLF to add an additional cause of action under the Resource Conservation and Recovery Act and also to add two additional defendants. Defendants must file their motion to dismiss by October 4, 2019. 10/25/2018 Reply Download Reply filed by plaintiff in further support of its motion for leave to file second amended complaint. 10/18/2018 Opposition Download Opposition filed by defendants to plaintiff's motion for leave to file second amended complaint. 10/04/2018 Complaint Download Redline of proposed second amended complaint filed with motion to amend. 10/04/2018 Complaint Download Proposed second amended complaint filed with motion to amend. 10/04/2018 Motion Download Motion for leave to file second amended complaint filed by plaintiff. 09/20/2018 Order Motion to dismiss denied without prejudice to refiling against complaint accompanying Plaintiff's forthcoming motion to amend. 08/27/2018 Letter Download Plaintiffs filed status update regarding planned amendment to the complaint. 02/22/2018 Reply Download Reply memorandum filed in support of motion to dismiss the amended complaint. 02/12/2018 Memorandum of Law Download Memorandum of law filed in support of Conservation Law Foundation's objection to motion to dismiss. 02/12/2018 Objection Download Objection filed by Conservation Law Foundation to motion to dismiss the amended complaint. 01/12/2018 Motion to Dismiss Download Motion to dismiss filed. Shell Asked Rhode Island Federal Court to Dismiss Citizen Suit Asserting That Failure to Prepare Terminal for Climate Change Violated Clean Water Act and RCRA. 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. 10/25/2017 Complaint Download Amended complaint filed. 08/28/2017 Complaint Download Complaint filed. Conservation Law Foundation Filed Lawsuit Alleging Shell Violated Clean Water Act by Failing to Prepare Providence Fuel Terminal for Climate Change. 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.