The Conservation Law Foundation (CLF), a foundation specializing in environmental protection in New England through legal action, filed the first-in-the-nation lawsuit on Sept. 29, 2016 against ExxonMobil’s Everett, MA storage facility for its endangerment of communities in MA caused by its alleged disregard of future impacts of climate change. The lawsuit alleges violations of both the federal Clean Water Act and the Resource Conservation and Recovery Act. Now, before I go further, I want to make it clear that this article is written purely to inform readers of this lawsuit. I take no stand in favor or against it. To inform you that it is happening and may be the first of many civil lawsuits.
Earlier this year, a coalition of 17 attorneys general announced a campaign to hold fossil fuel companies accountable for allegedly deceiving customers, shareholders, and the public about climate risk. CLF is the first organization to file a civil lawsuit against such a firm for such an alleged deceit and not preparing for climate change impacts.
The lawsuit’s main allegation is that ExxonMobil has not adequately planned for the effects of climate change-influenced potential disasters, such as flooding of the Mystic River caused by sea level rise and extreme storms which could result in significant release of pollutants from the facility. The lawsuit claims that ExxonMobil has the obligation to study and reasonably prepare for such floods and adapt their processes to minimize releases caused by such future floods. The lawsuit is not attempting to require the facility to perform actions to reduce its actual greenhouse gas emissions.
Whatever the result of this and other lawsuits, one issue that will need to be resolved is the level of analysis of climate risk. It may not be proper for each property owner to develop its own estimate of potential sea level rise. Some type of standard or approved guidance is needed, whether it be FEMA flood maps or other information from the USEPA. Certainly, the facility, using any such standard properly, should therefore be exempt from such lawsuits in the future.
It will be interesting to see if this spurs on other citizen and/or government lawsuits on climate risk for many facilities around the country. Might litigants join forces and file a small number of such lawsuits, like tobacco litigation. This might spur reforms that at least will give a basis of how much (or little) a facility should do to address climate risk.
CCES has the experts to help your facility assess potential climate change impacts on your operations. Contact us today at 914-584-6720 or karell@ccesworld.com.