Climate Change Adaptation on Litigation Radar for 2022
2021 was yet another active year for climate change litigation, with “failure to adapt” cases now clearly on the litigation radar screen, making their way through early motion practice and discovery. As of this writing, four cases are being pursued by the Conservation Law Foundation (CLF), all targeting petroleum terminals along the coast in New England. Key decisions expected this year and next could have broader implications for facility owners and operators as CLF presses the theory that the failure to prepare the terminals for foreseeable, catastrophic weather events constitutes an imminent endangerment under RCRA and violates the Clean Water Act’s NPDES and stormwater requirements.
In July 2021, the U.S. Court of Appeals for the First Circuit lifted a stay on CLF’s lawsuit against ExxonMobil related to its terminal along the Mystic River in Everett, Massachusetts. The district court granted ExxonMobil’s motion to stay the case under the doctrine of primary jurisdiction until EPA issued a new NPDES permit for the terminal, reasoning that EPA was better suited than the court to determine the scientific and policy issues raised by ExxonMobil’s need to consider climate change, and that EPA’s renewal of the permit might moot CLF’s request for injunctive relief. The First Circuit resoundingly rejected the district court’s rationale, paving the way for the case to proceed through discovery.
Seemingly emboldened by the First Circuit’s decision, CLF filed two new citizen suits in Connecticut less than a week later, asserting similar claims under RCRA and the Clean Water Act related to two bulk storage and fuel terminals located in New Haven. A partial motion to dismiss is pending in one of the cases; no motion to dismiss was filed in the other. Whether they end up settling or not, these citizen suits will be ones to watch as environmental non-profits continue to find novel ways to try to drive climate change policy and progress through the courts.