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 03/21/2020 Memorandum and Order Download Exxon's motion to stay allowed. Massachusetts Federal Court Stayed Climate Adaptation Citizen Suit Against Exxon. Citing the doctrine of primary jurisdiction, the federal district court for the District of Massachusetts stayed a citizen suit asserting that ExxonMobil Corporation (Exxon) and related defendants violated the National Pollutant Discharge Elimination System (NPDES) permit for their 110-acre petroleum storage and distribution terminal in Everett, Massachusetts, including by failing to consider flooding and severe storms caused by climate change in their maintenance of the terminal. The plaintiff also asserted that the permit violations posed an imminent and substantial endangerment to human health and the environment in violation of the Resource Conservation and Recovery Act. The terminal has a NPDES permit issued by EPA that expired in 2014 but which EPA has administratively continued so that its terms remain in effect; EPA regional counsel informed the court that the agency is working in good faith to renew the permit by 2022. The court found that the precedent against applying primary jurisdiction in citizen suits was “not overwhelming,” and that, in any event, this case was not a “typical” citizen suit, both because it involved “ambiguous, narrative permit conditions” and would require the court to determine to what extent weather patterns were changing in the Boston area, an inquiry implicating scientific and policy issues. Although the court acknowledged that the doctrine of primary jurisdiction should be applied “sparingly” in citizen suits, it concluded that this case “involves a rare set of circumstances in which deferring to the primary jurisdiction of the EPA is justified and appropriate.” Considering the factors for applying primary jurisdiction, the court first said that “determining permit conditions” was “at the heart of the EPA’s authority” under the Clean Water Act. Second, the court noted again that the question of how Exxon should consider “predictable weather patterns” raised “scientific and policy issues that the EPA is better equipped to decide than the court.” Third, the court noted that EPA’s issuance of the renewed permit would “generate a fuller administrative record” to which the court could refer to interpret the permit and could moot the plaintiff’s request for injunctive relief. Fourth, the court said allowing EPA the opportunity to issue the permit would further regulatory uniformity. The court also concluded that the potential for delay did not outweigh other factors; the court noted that resolving the case on the merits could require as much time as EPA had estimated for the permit’s renewal. The court therefore stayed the case, directing the parties to confer within 30 days of issuance of a new permit regarding whether the stay should be lifted and, if so, how the case should proceed. The court further directed that if a new permit was not issued by November 1, 2021, the parties should confer and report to the court on the status of the permitting process and on whether the stay should be lifted. 05/14/2019 Order Oral argument held on motion to quash and motion for stay; motion to quash dismissed as moot and motion for stay taken under advisement. In Case Concerning Exxon Facility’s Climate Readiness, Massachusetts Federal Court Held Hearing on Motion to Stay; EPA Lawyer Answered Questions on NPDES Permit Timing. In a citizen suit asserting that ExxonMobil Corporation (Exxon) violated environmental laws by failing to prepare its marine terminal on the Mystic River in Massachusetts for the effects of climate change, the federal district court for the District of Massachusetts heard arguments on EPA’s motion to quash a subpoena for testimony by the Region 1 Water Permits Branch Chief and also on Exxon’s motion to stay the action. Exxon sought the stay pursuant to the doctrine of primary jurisdiction to allow EPA to consider Exxon’s application to renew the terminal’s National Pollutant Discharge Elimination System (NPDES) permit. The court had said any testimony by the EPA official would be limited to matters relevant to Exxon’s motion to stay, including questioning about the timing of EPA’s review of the Exxon’s application to renew its NPDES permit. Exxon argued that a stay was appropriate because it would allow EPA to resolve “technical and policy-laden questions” regarding the extent of climate change risks and the appropriate remedies for addressing those risks. Although the regional counsel for EPA Region 1 said he would instruct the Branch Chief not to testify, the regional counsel himself agreed to answer questions at the hearing, though not under oath. The regional counsel reportedly testified that EPA had a mandate to clear the permit backlog within three years but said that there was some internal “skepticism” as to whether that timeline will be met. The court dismissed the motion to quash as moot in light of the regional counsel’s appearance and took Exxon’s stay motion under advisement. 05/06/2019 Order Download Order issued order scheduling oral argument on motion to quash. 05/03/2019 Reply Download Reply memorandum filed by EPA in support of motion to quash subpoena. 05/03/2019 Reply Download Sur-reply memorandum filed by Conservation Law Foundation in further support of its opposition to defendants' motion to stay pursuant to the doctrine of primary jurisdiction. 04/26/2019 Memorandum of Law Download Memorandum of law filed by defendants in response to non-party EPA's motion to quash. 04/26/2019 Reply Download Reply filed in support of defendants' motion to stay pursuant to the doctrine of primary jurisdiction. 04/19/2019 Memorandum Download Memorandum filed by Conservation Law Foundation in opposition to defendants' motion to stay pursuant to the doctrine of primary jurisdiction. 04/18/2019 Memorandum Download Memorandum filed in support of EPA motion to quash subpoena. 04/18/2019 Motion Download Motion to quash subpoena filed by EPA. 04/05/2019 Memorandum of Law Download Memorandum of law filed in support of defendants' motion to stay pursuant to the doctrine of primary jurisdiction. 04/05/2019 Motion Download Motion to stay filed by defendants. 04/04/2019 Answer Download Answer to amended complaint filed by defendants. 04/02/2019 Status Report Download Joint status report filed by the parties. 03/14/2019 Order Download Motion to dismiss granted in part and denied in part. Massachusetts Federal Court Let Claims Proceed Against Exxon for Failing to Consider Foreseeable Severe Weather Events at Marine Terminal. 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. 12/18/2018 Response Download Response to December 3, 2018 order filed by defendants. The defendants reported to the court that the U.S. Environmental Protection Agency (EPA) intended to release a draft National Pollutant Discharge Elimination System permit for public comment "in the coming years." The defendants said they did not plan to sue EPA for failing to act because doing so would be futile. The defendants instead urged the court to defer to EPA pursuant to the primary jurisdiction doctrine. Alternatively, the defendants contended that EPA should participate as a witness in this lawsuit. 12/18/2018 Statement Download Statement of counsel and report of Conservation Law Foundation filed. The plaintiff reported that the U.S. Environmental Protection Agency (EPA) planned to take action on the defendant's permit application "in due course," but that it would take years fro EPA to take final action. The plaintiff said it believed suing EPA for failure to act would be futile, and also said that a mandamus petition in the First Circuit would be "ill-suited to the circumstances presented here." The plaintiff told the court that it believed the existing permit could protect human health and the environment, if enforced. 12/03/2018 Order Download The federal district court for the District of Massachusetts ordered plaintiff Conservation Law Foundation and defendants ExxonMobil Corporation and two affiliates (Exxon) to discuss with the U.S. Environmental Protection Agency (EPA) the status of Exxon's application to renew the National Pollutant Discharge Elimination System permit for the terminal, and to report to the court on "whether and when" EPA expected to act on the application. The court also directed the parties to inform it of whether they intended to file suit against EPA for failure to act. 02/05/2018 Reply Download Reply memorandum of law filed in support of motion to dismiss the amended complaint. 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.