2020 Environmental Real Estate Issues

The 1st Circuit Court of Appeals directed a district (trial level) court to proceed with a case brought by The Conservation Law Foundation (CLF) against ExxonMobil.  The 1st Circuit said the district court improperly stayed the case while EPA was considering revisions to ExxonMobil’s discharge permit under the Clean Water Act (CWA).

CLF Alleges ExxonMobil Did Not Consider Climate Change Risks
Conservation Law Foundation v. ExxonMobil is a citizen suit under the provisions of the CWA and the Resource Conservation and Recovery Act.  CLF alleges ExxonMobil has violated its permit because its Storm Water Pollution Prevention Plan (“SWPPP”) for its petroleum storage terminal in Everett, Massachusetts fails to accurately reflect the potential for pollution incidents due to climate change related risks, such as sea level rise and greater storm severity.

Primary Jurisdiction Should Not Delay Citizen’s Suits
ExxonMobil asserted CLF is really alleging its CWA permit does not meet CWA requirements and that EPA should make the determination, not a federal judge.  The district court granted ExxonMobil’s request to stay the case under the doctrine of primary jurisdiction.

The 1st Circuit reversed, suggesting the doctrine of primary jurisdiction should rarely, if ever, delay an environmental citizen’s suit, and certainly does not apply in this case.

Possible Nationwide Implication
If CLF prevails, the ruling could implicate many CWA permits with SWPPPs and allow judges, rather than the agencies that issue the permits, to determine if the SWPPPs are adequate.
To see the 1st Circuit’s opinion http://media.ca1.uscourts.gov/pdf.opinions/20-1456P-01A.pdf

Complimentary Webinar on July 20
Keith Bradley, Director, Ecological Services, GES, and I will present a complimentary webinar Clean Water Act Section 404: Today and Tomorrow on Tuesday July 20, 2021, noon-1 PM Central Time.  To register, https://register.gotowebinar.com/register/6968921716297226511