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September 18, 2017

Legal Update
Dylan Sanders

Harm from climate change is imminent —except when it is not

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As the nation absorbs the tremendous scale of the damage caused by Hurricanes Harvey and Irma, a federal judge in Massachusetts this week kept alive a lawsuit charging that ExxonMobil has failed to adequately prepare an oil terminal in Everett Massachusetts to withstand storm surges, heavy rainfall and flooding. These are all effects that scientists warn will worsen and intensify with climate change. The succinct order, in Conservation Law Foundation v. ExxonMobil Corporation, permits CLF to seek a remedy against ExxonMobil for harms in what the court refers to as the “near future,” while barring litigation now over harm that may occur “far in the future.” The decision begs the question: Just what harms from climate change are sufficiently imminent to warrant granting judicial relief to litigants, and which are those that are “far in the future,” such that the courts should find that plaintiffs lack standing to sue?

The subject of the action is an oil storage and transfer terminal along the Mystic and Island End Rivers in Everett, Massachusetts — waterways which empty into Boston Harbor. CLF brought the novel lawsuit in 2016, alleging that ExxonMobil had violated federal environmental laws both by allowing pollutants to be released into the rivers during past storm events and in failing to comply with a federal discharge permit, by sufficiently fortifying the terminal for future storm events. The necessity of preparing for such events as predictable effects of climate change, CLF argues, is both clear as a scientific matter and something ExxonMobil itself has long acknowledged internally.

The lawsuit—believed to be the first seeking to tie compliance with a federal discharge permit to preparation for the future effects of climate change—claims that the Everett terminal, due to its location, is uniquely vulnerable to “sea level rise, increased precipitation, increased magnitude and frequency of storm events, and increased magnitude and frequency of storm surges.”

ExxonMobil has denied the lawsuit’s allegations, and it filed a motion to dismiss which, among a broadside of arguments, attacked CLF’s standing to bring the suit. To demonstrate standing, a plaintiff has to show (1) that has suffered or will suffer a concrete, particular injury, (2) that the harm is traceable to the defendant’s conduct, and (3) that the harm can be redressed by some form of relief that a court can grant. ExxonMobil argued that “CLF’s allegation that climate change could, at some unspecified point in the future, damage the Terminal and cause it to release pollutants… is not only conclusory and speculative, but also predicated on highly uncertain projections about prospective weather events which, if they occur at all, are likely only to occur well beyond the term of” ExxonMobil’s discharge permit.

At oral argument, Judge Wolf reportedly expressed the view that he did not want the case to become “the Scopes-Monkey trial of the 21st century,” i.e., an occasion for litigating the merits of climate change science. Nevertheless, he found that CLF had stated “a plausible claim that there is ‘substantial risk’ that severe weather events, such as storm surges, heavy rainfall, or flooding, will cause the terminal to discharge pollutants… in the near future and while the Permit is in effect.” And he found that such harms could be redressed by a court order that ExxonMobil comply with the permit’s requirements. Thus, the court held CLF had standing to pursue some of its claims.

But the judge also found that CLF did not have standing to sue, as it sought to do, for injuries that are “unlikely to occur… in the near future.” In particular, CLF could not pursue claims for –

“injuries that allegedly will result from rises in sea level, or increases in the severity and frequency of storms and flooding, that will occur in the far future, such as in 2050 or 2100. Such potential harms are not ‘imminent’ and the claims concerning them are not ripe for decision because, among other reasons, the Environmental Protection Agency may require changes to the Permit that will prevent the harms from occurring.”

In some ways, CLF was a victim of the way in which it had drafted the complaint, as many of its allegations referred to the predicted effects of climate change 50 and even 100 years from now. This made it easy for ExxonMobil to argue, often using CLF’s own allegations, that such effects from climate change were not adequately tied to an imminent threat of injury CLF, and one that the court could redress.  (Indeed, the court has ordered CLF to file an amended complaint to presumably eliminate such allegations.)

But while the court’s order can be characterized as something of a “mixed result” for both sides, the important point is that the case will proceed, albeit on a narrowed range of issues. How much narrowed remains for another day—and perhaps for a higher court—as the parties litigate over what effects from climate change are truly “imminent,” and whether ExxonMobil’s terminal is sufficiently resilient to withstand those effects.

One issue to watch in the short term is whether CLF will be allowed discovery—in the form of requests for documents and depositions of ExxonMobil executives and scientists—on subjects covered by articles in Inside Climate News and The Los Angeles Times, which have suggested that as early as the 1970’s, ExxonMobil’s own scientists informed executives that extensive emissions from the burning of fossil fuels would result in climate change. In several other proceedings, including ones initiated by Massachusetts Attorney General Maura Healey and New York Attorney General Eric Schneiderman, ExxonMobil is aggressively resisting discovery on just this topic. ExxonMobil doubtless will argue in CLF v. ExxonMobil that the court’s order makes such information irrelevant to the issues that remain in the case.