Big Oil to greens: ‘You need a present threat’

Source: By Jennifer Hijazi, E&E News reporter • Posted: Sunday, August 16, 2020

Rising tides and strengthening storms induced by global warming are too far off in the future to serve as a basis for a lawsuit over the Royal Dutch Shell PLC facility located in the Port of Providence, lawyers for the company argued before the U.S. District Court for the District of Rhode Island.

Judge William Smith asked Shell’s attorneys whether its argument would still stand even if major storms or flooding can be predicted “to a certain statistical probability.”

“The plaintiffs may believe that a bomb is going to go off, but the fact remains that they have asserted a claim under [the Resource Conservation and Recovery Act]’s imminent and substantial endangerment provision,” Bina Reddy, principal at Beveridge & Diamond PC, argued on behalf of Shell. “You need a present threat.”

The Conservation Law Foundation (CLF) sued Shell in 2017 under the Clean Water Act and the Resource Conservation and Recovery Act for failing to properly retrofit one of its storage terminals to prevent chemical leakage that occur as a result of climate impacts.

Shell has attempted to dismiss portions of the lawsuit for failing to raise a claim because the stated harms are not “imminent.”

The company has taken a “baffling posture,” according to CLF counsel Christopher Kilian.

“Climate change is already having documented and major impacts in Rhode Island and, more specifically, has been identified as a present and increasing threat in the Port of Providence,” he said. “Those are all plead facts in our complaint.”

John Guttmann, principal at Beveridge & Diamond PC, argued that CLF missed its opportunity to submit comments or push for a public hearing regarding management or engineering practices before a new permit for the facility went into effect last year.

“The determination as to what best management practices and what best engineering practices to deal with these factors that CLF is talking about is properly one for the permitting agency, and therefore it’s properly one that CLF should have made in those comments and it elected not to,” Guttmann said.

Kilian countered that Rhode Island’s Department of Environmental Management already places burdens on permit holders like Shell to protect the environment.

“The reason we didn’t ask for changes is because these permits include provisions that adequately protect the public interest if they are enforced under this statute,” he said. “[Shell has] done nothing to protect the Providence River, the surrounding communities and even their own facility from these known, certainly impending, foreseeable substantial risks.”

Smith, a George W. Bush appointee, said he would work quickly to have the decision “in the near future.”

A similar case brought by CLF against an Exxon Mobil Corp. facility in Boston was put on hold so EPA could reissue a new Clean Water Act permit. The environmental group has appealed the decision (Climatewire, April 20).