Dismissing the risks of climate change didn’t turn out to be as easy as Exxon-Mobil lawyers had hoped.
A lawsuit filed by the Conservation Law Foundation against Exxon over its Everett petroleum terminal will advance in Boston federal court, thanks to a ruling that US District Court Judge Mark Wolf made from the bench earlier this month.
CLF’s lawsuit, among other things, accuses Exxon of failing to adequately protect the property from potential floods caused by storms and rising sea waters that could sweep pollutants off the site. The closely-watched lawsuit could have ripple effects that influence the broader oil industry and how it prepares for future storms.
You can’t blame the Texas-based oil giant’s attorneys for being optimistic. Wolf had initially agreed in September 2017 to dismiss CLF’s climate change arguments. The judge’s reasoning: CLF’s predictions of catastrophic sea level rise dealt with a time period that was far off in the future. Immediate or short-term harm? Wolf needed to see that to allow the litigation to proceed. He didn’t — and he sent CLF back to the drawing board.
The Boston-based environmental organization returned to the fray a month later. CLF amended its complaint to underscore present-day fears, such as the increased frequency of the kind of catastrophic storms that could damage the terminal and send pollutants spilling into a Mystic River tributary. Exxon’s lawyers fought back, arguing CLF was just offering up more of the same, and that the company remained in full compliance with a rigorous federal discharge permit.
This time, however, Wolf sided with CLF.
The federal permit may not explicitly require Exxon to consider climate change when maintaining the terminal, Wolf noted. But the appropriate question is whether the permit requires Exxon to consider how extreme weather events might threaten the facility.
Wolf said the permit’s provisions make it clear Exxon needs to plan for the kinds of climate-induced storms that CLF claims put the terminal at risk. For example, CLF says the permit requires the company to use “good engineering practices.” Wolf said he considers “good engineering practices” to include preparation for foreseeable severe weather events.
Wolf didn’t actually rule on the merits of CLF’s case, as is typical of these early-round hearings. Instead, Wolf decided that CLF had enough to move its climate-change argument forward.
This could be a precedent-setting case. It is being watched closely by the petroleum industry — this is just one of a number of waterfront oil terminals in Massachusetts alone — and by other environmentalists. If the conservation group wins, such a victory could eventually prompt other oil companies to go beyond the steps spelled out explicitly in their federal permits to prepare for near-term climate risks.
CLF president Brad Campbell said Wolf made it clear he didn’t want to get drawn into a debate about whether extreme weather is caused by “human induced” factors — a.k.a. carbon emissions. Campbell said the case has always been about the risks to the communities and the environment around the Everett terminal, and not the underlying causes of climate change.
Exxon executives, at least at first, viewed the lawsuit differently. When the case surfaced in 2016, an Exxon spokesman dismissed it as part of a multi-pronged assault on the company and its approach to climate change. It’s hard to know if Exxon still sees it that way; a spokeswoman declined to comment on Wolf’s latest ruling.
This isn’t the only legal venue where Exxon finds itself under attack on this issue. Attorney General Maura Healey continues to investigate whether Exxon deceived consumers and investors about the impacts of climate change. Exxon tried to squelch the investigation, but the state Supreme Judicial Court ruled in Healey’s favor. The company faces climate-change suits from attorney generals in New York and Rhode Island.
Will Exxon’s next big storm hit its oil tanks, or in the courtroom? It might be wise to prepare for both possibilities.