Description: 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.
Filing Date Type File Action Taken Summary 01/25/2018 Memorandum Download Corrected memorandum of law filed in support of motion to dismiss. 01/19/2018 Opposition Download Memorandum of law filed in support of plaintiff's opposition to defendants' motion to dismiss. Conservation Law Foundation (CLF) opposed the motion to dismiss, arguing that its amended complaint focused “only on the past, present, and near-term injuries associated with Exxon’s violations.” CLF characterized the issue before the court as “whether the climatic changes outlined by CLF were and are occurring during the relevant time frame and whether they should have been considered and addressed by Exxon.” 12/20/2017 Motion to Dismiss Download Motion to dismiss filed. Exxon Sought to Dismiss Amended Claims Regarding Climate Change Preparation at Massachusetts Terminal. Exxon Mobil Corporation and related entities (Exxon) moved to dismiss Conservation Law Foundation’s (CLF’s) amended complaint alleging that Exxon violated the Clean Water Act and Resource Conservation and Recovery Act by failing to prepare a marine distribution terminal in Massachusetts for severe weather and other climatic events. CLF alleged that Exxon had failed to design the terminal or its waste water treatment system “to address precipitation and/or flooding, which is exacerbated by storms and storm surges, sea level rise, and increasing sea surface temperatures.” CLF alleged that climate change was increasing the frequency and severity of events such as extreme rainfall. In support of motion to dismiss, Exxon argued that CLF had defied the court’s earlier ruling that CLF lacked standing for injuries that would occur “in the far future” due to climate change impacts. Exxon asserted that CLF continued “to assert climate change claims premised on distant and speculative impacts” and had failed to identify violations of the facility’s National Pollutant Discharge Elimination System permit. Exxon argued that the Clean Water Act’s permit shield and the collateral attack doctrine barred CLF’s claims. 10/20/2017 Complaint Download Amended complaint filed. 09/19/2017 Motion Download Joint motion for proposed schedule filed. The parties subsequently submitted a joint motion proposing a schedule under which the plaintiff will file an amended complaint in accordance with the court’s order by October 20, 2017, after which the parties will negotiate for one month to resolve or narrow remaining disputed issues. 09/13/2017 Order Download Motion to dismiss allowed in part and denied in part. Massachusetts Federal Court Said Organization Alleging Lack of Preparedness at Oil Terminal Had Standing for Near-Term Coastal Hazards but Not for Climate Change-Related Harms in “Far Future”. The federal district court for the District of Massachusetts granted in part and denied in part ExxonMobil Corporation’s (Exxon’s) motion to dismiss a Clean Water Act citizen suit alleging Exxon failed to prepare an oil terminal for severe storms and climate change. The court found that the plaintiff had adequately alleged standing for claims that there was a substantial risk that severe weather events such as storm surges, heavy rains, or flooding would cause the terminal to discharge pollutants in the near future and while the facility’s current permit was in effect. The court also found, however, that the plaintiffs did not have standing “for injuries that allegedly will result from rises in sea level, or increases in the severity of storms and flooding, that will occur in the far future, such as in 2050 or 2100.” 12/20/2016 Opposition Download Memorandum of law filed opposing motion to dismiss. In response to ExxonMobil’s motion to dismiss, Conservation Law Foundation (CLF) asserted that ExxonMobil’s failures to properly disclose and manage risks of discharges caused by climate change resulted in “real and imminent, not exaggerated or uncertain” injuries. CLF contended that it had standing to bring its claims and that it had adequately alleged claims under RCRA and the Clean Water Act. 12/06/2016 Motion to Dismiss Download Motion to dismiss filed. ExxonMobil Sought Dismissal of Climate Change Citizen Suit Alleging RCRA and Clean Water Act Violations at Massachusetts Marine Terminal. Exxon Mobil Corporation and two related entities (ExxonMobil) asked the federal district court for the District of Massachusetts to dismiss a citizen suit brought pursuant to the Clean Water Act and the Resource Conservation and Recovery Act (RCRA) in connection with ExxonMobil’s operation of a marine distribution terminal in Massachusetts. ExxonMobil argued that the plaintiff, Conservation Law Foundation (CLF), lacked standing because the climate change impacts alleged by CLF were speculative and too far in the future to satisfy standing requirements. For the same reason, ExxonMobil said that CLF’s allegations failed to allege the “imminent and substantial endangerment” necessary to state a RCRA claim. ExxonMobil also argued that CLF’s climate change-related Clean Water Act claims were jurisdictionally and facially defective because EPA had clearly taken the position that remote and speculative climate change impacts did not need to be considered with respect to NPDES permits, Stormwater Pollution Prevention Plans, and Spill Prevention, Control and Countermeasure (SPCC) plans. In addition, ExxonMobil contended that CLF did not state valid non-climate change Clean Water Act claims. ExxonMobil also said that the court did not have subject matter jurisdiction to consider the claim that the SPCC plans for the terminal should consider climate change because the Clean Water Act’s citizen suit provision did not encompass such a claim. 09/29/2016 Complaint Download Complaint filed. Environmental Group Sued ExxonMobil for Failing to Prepare Massachusetts Facility for Climate Change. Conservation Law Foundation (CLF) filed a citizen suit under the Resource Conservation and Recovery Act (RCRA) and the Clean Water Act against ExxonMobil Corporation and two related companies (ExxonMobil) alleging that the defendants had failed to take climate change impacts into account in connection with their operation of the Everett Terminal, a marine distribution terminal in Massachusetts. The complaint, filed four months after CLF submitted a notice of intent to ExxonMobil, alleged that the terminal was vulnerable to sea level rise, increased precipitation, increased magnitude and frequency of storm events, and increased magnitude and frequency of storm surge, and that ExxonMobil had not taken action to address these vulnerabilities despite having “long been well aware of” climate change impacts and risks. In the RCRA cause of action, the complaint said that the threats of storm surge and sea level rise were imminent and that the failure to adapt the Everett Terminal would result in the release of hazardous and solid wastes into the environment and surrounding residential communities. In the Clean Water Act causes of action, the complaint asserted that the facility was violating its National Pollutant Discharge Elimination System (NPDES) permit because discharges from the facility were occurring more frequently than allowed under the permit and numeric effluent limitations were exceeded. In addition, the complaint alleged that discharges from the facility violated state water quality standards and that the facility’s stormwater pollution prevention plan and spill prevention, control and countermeasures plan were inadequate because they failed to address climate change impacts. 05/17/2016 Notice of Intent to Sue Download Notice of violations and intent to sue sent. Conservation Law Foundation Sent Notice to ExxonMobil of Its Intent to Sue Under RCRA and Clean Water Act. Conservation Law Foundation (CLF) sent a letter to ExxonMobil Corporation, ExxonMobil Oil Corporation, and ExxonMobil Pipeline Company notifying them that it intended to file a lawsuit alleging violations of the Resource Conservation and Recovery Act (RCRA) and the Clean Water Act in connection with the Everett Terminal, a marine distribution terminal in Massachusetts. With respect to RCRA, CLF asserted that ExxonMobil’s past or present handling, storage, treatment, transportation, or disposal of hazardous and solid waste might present an imminent or substantial endangerment to health or the environment. CLF contended that ExxonMobil was aware that a significant rise in sea level would put the Everett Terminal under water but that the companies had not taken any action to protect the public or the environment from this risk. CLF also said that failures to disclose information regarding climate change risks could also expose ExxonMobil to liability under other theories. With respect to the Clean Water Act, CLF said that ExxonMobil had not disclosed climate change information in its applications for coverage under National Pollutant Discharge Elimination System (NPDES) permits and had failed to address sea level rise, increased precipitation, and increased magnitude and frequency of storm events and storm surges in its Stormwater Pollution Prevention Plan.