Massachusetts Innovates Again, This Time With New Climate Change Litigation

As an MIT grad and loyal resident (Go Sox!), I’m always happy to see stories about Massachusetts’ role in the innovation economy.  Last week, news arrived of more innovation in Massachusetts – this time on the legal front.  CLF sued Exxon Mobil for not adapting its Everett storage terminal to harden it against the effects of climate change.

I’ve previously raised the possibility that, at some point, citizen suits on climate change could be like tobacco litigation or marriage equality litigation, originally, dead losers that were a minor nuisance to defendants, but which ultimately became major fronts on the winning side of the issue.  I’ve also noted occasional skepticism of that possibility.

I’m right in the middle on the CLF litigation.  That’s because this is a different type of case and differences matter.  It’s about adaptation, not mitigation.  It’s about a specific facility.  And it is set squarely in the framework of existing laws and regulations.  That means that those specific laws and regulations matter.  I’ll give just one example.

While the complaint is long and complex, there is one core allegation:  ExxonMobil has not adequately planned for sea level rise, and future storms could cause significant flooding and, as a result, releases of pollutants from the ExxonMobil facility.  This may be all true and ExxonMobil has an obligation to prepare for floods.

What it doesn’t need to do, I think, is make its own judgments about sea level rise based on its expertise in climate science, and adapt accordingly.  In fact, we don’t want each individual corporation or property owner developing its own estimates of sea-level rise.

In short, that’s the government’s job.  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.

An outlandish notion in today’s world, I know.