Yesterday, Judge Mark Wolf dismissed part of the Conservation Law Foundation’s claims in its litigation against ExxonMobil concerning ExxonMobil’s Everett Terminal facility. The opinion is both interesting and pleasurably concise – a rare combination!
Judge Wolf found that CLF had credibly alleged that the Terminal is violating its NPDES permit. Importantly, he also found that CLF stated that there is:
substantial risk” that severe weather events, such as storm surges, heavy rainfall, or flooding, will cause the terminal to discharge pollutants into those areas in the near future and while the Permit is in effect. Finally, plaintiff plausibly alleges that these actual and imminent harms are redressable by the court through an order that defendants comply with the Permit.
The judge parted ways with CLF, however, with respect to allegations the he found to be more speculative. Specifically, he concluded that CLF:
does not have standing 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.
I do feel compelled to crow a little. When the complaint was filed, I noted the likelihood that we’re going to start to see more of such cases. I also noted that cases are concrete and the allegations in a complaint matter. As I said then:
The complaint does refer to the new FEMA flood maps. I think it’s a fair allegation to say, if true, that ExxonMobil’s SWPPP does not reflect current FEMA flood maps. I also think that it’s a fair defense to say, if true, that ExxonMobil’s SWPPP does address current FEMA maps and that ExxonMobil has no obligation to prepare for some hypothetical next-generation FEMA flood maps.
It thus seems to me that all the allegations in the complaint about ExxonMobil’s research on climate change are irrelevant. This isn’t a fraud law suit, or shouldn’t be. More broadly, I can certainly imagine many other such suits being brought, but they’re going to have to be based on provable facts.
My views haven’t changed — and now I know Judge Wolf agrees with me!