Description: Citizen suit alleging that Shell Oil violated the Clean Water Act and the Resource Conservation and Recovery Act by failing to prepare a bulk storage and fuel terminal in Providence, Rhode Island, for climate change impacts.
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Conservation Law Foundation, Inc. v. Shell Oil Products US
Case Documents:
Filing Date Type File Action Taken Summary 07/21/2022 Memorandum and Order Download Plaintiff's motion to compel and defendants' cross-motion for protective order denied without prejudice. Federal Court Ordered “Measured” Approach to Discovery in Providence Terminal Climate Adaptation Case. The federal district court for the District of Rhode Island issued an order setting forth the course of discovery in Conservation Law Foundation’s citizen suit alleging that Shell Oil Products US and affiliates failed to prepare a bulk storage and fuel terminal in Providence, Rhode Island, for the impacts of climate change. The court noted that Conservation Law Foundation sought “far-reaching discovery”—including requests for documents concerning other Shell facilities and Shell’s knowledge of climate change—that was likely to be “very time consuming and expensive.” The defendants argued that they had agreed to provide some documents regarding corporate policies and that a deposition of the East Coast Lead Facility Engineer would be a more efficient discovery mechanism. The court concluded that “a more measured approach is warranted” before “potentially going down th[e] path” sought by the plaintiffs. The court therefore directed the defendants to continue producing documents they had agreed to produce and to produce the engineer for a deposition regarding how the Providence Terminal manages precipitation and flooding risks and who makes decisions for the terminal. The court further directed that the parties should use the results of this discovery “to continue to confer in good faith regarding the scope of document production” and said that if disputes remained, they could refile their motion to compel and cross-motion for protective order. 07/01/2022 Supplement Download Conservation Law Foundation submitted supplemental filing in support of its motion to compel and filed its reply and opposition to defendants' cross-motion for protective order. 07/01/2022 Supplement Download Supplemental brief filed by defendants in support of opposition to plaintiff's motion to compel and cross-motion for protective order. 06/30/2022 Report and Recommendation Download Denial of defendants' motion for judgment on the pleadings recommended. Magistrate Recommended that Rhode Island Federal Court Allow Climate Preparedness Suit to Proceed Against Non-Owner/Operator Defendants. A magistrate judge in the federal district court for the District of Rhode Island recommended that the district court deny a motion for judgment on the pleadings dismissing claims against non-owner/operator defendants in Conservation Law Foundation’s lawsuit alleging that Shell Oil Products US and related companies violated environmental laws by failing to prepare a bulk storage and fuel terminal in Providence, Rhode Island, for climate change impacts. The magistrate found granting the motion would requiring contradicting an earlier ruling on a motion to dismiss, which was the law of the case. The magistrate further found that the plaintiff stated plausible claims that the non-owner/operator defendants were directly liable under the Clean Water Act and the Resource Conservation and Recovery Act. 04/29/2022 Reply Download Reply filed by defendants in support of cross-motion for protective order. 04/15/2022 Reply Download Reply filed by plaintiff in support of its motion to compel and opposition to defendants' cross-motion for protective order. 04/02/2022 Opposition Download Memorandum of law filed in support of defendants' opposition to Conservation Law Foundation's motion to compel and cross-motion for protective order governing the production and exchange of discovery. 04/01/2022 Motion Download Cross-motion filed by defendants for protective order governing the production and exchange of discovery. 04/01/2022 Reply Download Reply memorandum filed in support of motion for judgment on the pleadings. 03/11/2022 Opposition Download Opposition filed to Shell defendants' motion for judgment on the pleadings. 03/04/2022 Motion Download Motion filed by Conservation Law Foundation to compel production of documents responsive to plaintiff's first set of requests for production to all defendants. 02/11/2022 Motion Download Motion for judgment on the pleadings filed by Shell defendants. 01/26/2022 Letter Download Joint summary of key discovery dispute issues submitted. 01/04/2022 Motion Download Motion filed by plaintiff to compel production of documents responsive to plaintiff's first set of requests for production to all defendants. In Adaptation Case, Conservation Law Foundation Asked Court to Reject Shell Efforts to Limit Document Production to Those Mentioning Rhode Island Facility. Conservation Law Foundation (CLF) filed a motion to compel production of documents in its lawsuit asserting that Shell Oil Products US and related entities (Shell) violated the Clean Water Act and Resource Conservation and Recovery Act (RCRA) by failing to prepare a bulk storage and fuel terminal in Providence, Rhode Island, for climate change impacts. CLF described the parties’ primary dispute as related to the relevance of documents that do not expressly refer to the Providence facility, such as “corporate policies that set standards for the resilience of its infrastructure to severe weather risks and climate change, as well as analyses of pollution discharges from other Shell facilities during major storms.” CLF argued that such documents were relevant because Shell had represented to the public and to regulators that it had a “centralized approach and process” to evaluating and addressing physical risks at its facilities while arguing in this litigation that management at individual facilities conduct climate change and severe weather risk analyses. CLF said the documents sought were relevant to the issue of whether defendants satisfied their obligation to adequately prepare the facility for severe weather and also to other issues, including what actions are required under the “good engineering practices” standard in the facility’s permit. The motion also addressed other disputes, including a disagreement over a time period limitation. 03/31/2021 Order Motion for entry of joint proposed discovery schedule granted. The court granted the motion for entry of a joint proposed discovery schedule. Dispositive motions are to be filed by February 1, 2023, and other pretrial deadlines were defined in the parties' joint proposed schedule. 03/29/2021 Motion Download Motion filed for entry of a joint proposed discovery schedule. 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.