The Conservation Law Foundation has sued Exxon in Massachusetts for failing to acknowledge and respond to climate-based risks posed to the environment by its petroleum terminal in Everett, Massachusetts. The Complaint claims the terminal lies below the level of a storm surge that occurred in 1978 and if FEMA were to update flood hazard maps through the area, then the terminal would likely fall within a flood hazard zone. Likewise, the Complaint alleges that “despite the extensive information and knowledge in ExxonMobil’s possession regarding climate change-induced impacts, including knowledge and information about increased precipitation, storm surge and sea level rise, ExxonMobil has not requested an update of the FEMA flood hazard maps for [the] Everett terminal.” Further, the plaintiff claims that a heavy rain in July 2010 conspired with ExxonMobil’s “failure to fortify its terminal against increased risks from extreme weather events” and produced a failure of the terminal’s water treatment system resulting in discharges of untreated pollutants into [an adjacent river].”
Switching from the site-specific to the global, the Complaint then recites a litany of reports claiming that climate change is upon us and will bring sea level rise and storm-related flooding. Then, the plaintiff labors to link the Complaint to ongoing investigations by the SEC and various states attorney general that Exxon misled investors by failing to report known climate risks. To this end, the Complaint digresses into recently well-trod claims that Exxon has long been aware of “the present impacts and risks of climate change,” but “despite knowing of the certainty of rising temperatures and rising sea levels since as early as the 1970s, Exxon did not use its findings to prepare its Everett terminal for such risks.”
After pages of these allegations, the Complaint then sets forth some 14 different causes of action. Among the more novel are:
- A RCRA citizen suit claim that Exxon’s operation of its terminal presents an “imminent and substantial endangerment to health or the environment” because sea level rise, increased precipitation and flooding from severe storms will result in releases of solid or hazardous wastes into the environment and surrounding residential communities (first cause of action). The immanency of the supposed hazards are not immediately apparent.
- A Clean Water Act citizen claim that Exxon has failed to develop and implement a storm water pollution prevention plan (“SWPPP”) designed to reduce or prevent the discharge of pollutants in stormwater because of its failure to address rising sea level, increased precipitation and increased magnitude and frequency of storm events. Likewise, the Complaint alleges that Exxon unlawfully certified the SWPPP as meeting the requirements of the permit when it failed to disclose information in its possession regarding climate change-induced sea rise, increased precipitation and increased storm activity (fifth and sixth causes of action).
There are other more pedestrian claims in the Complaint relating to actual discharges of pollutants, but the majority of the 295 paragraphs of the Complaint are devoted to claims that Exxon failed to adjust its permits and facilities to known climate risks. Undoubtedly, the plaintiffs will attempt to use the case to conduct discovery from Exxon as part of a widespread effort to characterize ExxonMobil as a climate-change denier villain.
This article was authored by Robert G. McLusky, Jackson Kelly, PLLC.