Judge lets climate case proceed against Exxon

Source: Daniel Cusick, E&E News reporter • Posted: Monday, March 18, 2019

A legal effort to hold industry accountable for pollution spills linked to sea-level rise gained ground Wednesday when a federal judge allowed a civil lawsuit targeting a petroleum storage facility outside Boston to proceed.

Chief Judge Mark Wolf of the U.S. District Court for the District of Massachusetts let multiple claims go forward that allege Exxon Mobil Corp.’s Everett oil terminal on the Mystic River poses dangerous risks to nearby residents.

Exxon asked Wolf to throw out the lawsuit filed by the Conservation Law Foundation (CLF) in 2016 and amended in 2017 (Climatewire, Oct. 3, 2016). In a bench order, Wolf denied Exxon’s petition on 12 of 15 counts and ordered the oil giant to answer the lawsuit’s charges by April 4.

The case is unrelated to an investigation by Massachusetts Attorney General Maura Healey (D), who claims that Exxon misled investors about climate change impacts (Greenwire, Jan. 7).

Exxon has disputed the claims about the Everett terminal’s safety and exposure to flood risk. A spokeswoman declined further comment.

The suit is one of two brought by the Boston-based conservation group that could define the way oil companies address operational risks from rising seas, storm surge and other extreme weather events that scientists have linked to climate warming. The second suit targets Royal Dutch Shell PLC facilities in Rhode Island.

According to CLF, Exxon failed to safeguard the Everett terminal’s storage tanks and other infrastructure against the effects of climate change — including rising seas and stronger storm surge.

As a result, residents of Everett, a city of 44,000 along the Mystic River and its tributaries, risk being inundated by petroleum-laden floodwaters and other pollutants as seas rise and the terminal becomes more exposed to extreme weather, such as the January 2018 “bomb cyclone” (Climatewire, Jan. 10, 2018).

In the suit, CLF claims that the 110-acre site comprising several ship berths, roughly 30 petroleum storage tanks and associated above-ground pipelines “has not been properly engineered, managed and fortified to protect it from the impending threat of these climate change-related impacts.”

Plaintiffs are seeking a jury trial and $110 million in civil penalties against Exxon.

In a statement, CLF President Bradley Campbell said Exxon “has put vulnerable communities and the harbor at risk as part of its pattern and practice of deceiving regulators and the public about the risks of climate change.”

“Exxon has known about these risks and its ongoing spills for years and is failing its most important duty under the law: to avoid spills of oil and hazardous substances that threaten public health and the environment,” he added.

The site, which hosted an oil refinery from 1921 to the mid-1960s before being repurposed into a bulk storage facility, has a checkered environmental record.

In 2006, a storage tank at Everett leaked roughly 15,000 gallons of diesel fuel into the Island End and Mystic rivers, resulting in federal criminal charges and a $6 million fine imposed by the Justice Department in 2008.

Two years later, Exxon and two affiliated companies paid a $2.9 million civil penalty to resolve charges that it had made unpermitted changes to the vapor collection and recovery system used to control emissions of volatile organic compounds at the Everett terminal.

Regulators further charged that Exxon had failed to adequately control VOC emissions while loading gasoline tanker trucks and did not comply with emissions monitoring, repair and reporting requirements at Everett and another bulk terminal in Springfield, Mass.

Michael Gerrard, a professor of professional practice at Columbia Law School and expert on litigation involving climate change, said the Everett case could become a model for local communities seeking to remedy long-standing environmental hazards by focusing on the effects of climate change — sea-level rise, storm surge and flooding — rather than its cause, the release of greenhouse gases into the atmosphere.

“We saw after some of the most recent hurricanes, especially Harvey in the Houston area, that these threats to industrial sites are not merely theoretical. They are real,” Gerrard said.

He also noted that the group’s use of the Clean Water Act and the Resource Conservation and Recovery Act as the basis for its claims may hold up better in a lawsuit involving a legacy facility like the Everett terminal, which has been permitted to continue operating even as environmental regulations have tightened.

“It’s much harder to fight an old facility than a new one,” Gerrard said. “The discretionary decisions about them were made decades ago and are often beyond challenge.”

CLF’s parallel lawsuit in Rhode Island involves Shell’s storage terminal at Fields Point on the Providence River. If the terminal is compromised by flooding, it could result in toxic pollutants flowing into the river and Narragansett Bay.

Shell has said the group’s claims, filed in federal district court in Providence, are based on speculation and exaggerate the facility’s exposure to risk.