2020 Environmental Real Estate IssuesA federal district court judge in Massachusetts refused to dismiss climate change related counts in a citizen suit against ExxonMobil but did schedule a hearing on ExxonMobil’s request to stay the case to allow EPA to consider key issues in the case.  The stay request is based on the doctrine of primary jurisdiction, which allows a court to defer to an administrative agency regarding issues within the agency’s expertise.

Citizen Suit Alleges Inadequate SWPPP
Conservation Law Foundation v. ExxonMobil is a citizen suit under the provisions of the Clean Water Act (CWA) and the Resource Conservation and Recovery Act; Conservation Law Foundation (CLF) seeks civil penalties, injunctive relief and attorneys’ fees.  Among the claims, CLF alleges that 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.

Judge Refuses to Dismiss Climate Change Related Counts
Earlier in the case, the judge ruled the suit cannot address longer term issues, such as sea levels predicted for 2050 or 2100, but also allowed CLF to amend its Complaint regarding the climate change related counts.  In response to CLF’s amended Complaint, ExxonMobil requested dismissal of all counts.  In opposing the request for dismissal, CLF argued that increased risks of flooding and other catastrophes are already present, and that ExxonMobil was in continuous violation of its CWA permit because its SWPPP was not updated to reflect these increased risks.  On March 14, 2019, the judge denied ExxonMobil’s request to dismiss the climate change related counts.

Judge Will Consider ExxonMobil’s Stay Request
ExxonMobil has also requested the judge stay the case under the doctrine of primary jurisdiction.  ExxonMobil asserts that CLF is really alleging that ExxonMobil’s CWA permit does not meet CWA requirements.  ExxonMobil asserts such a determination should be made by EPA, not a federal judge.  The judge ordered ExxonMobil to issue a subpoena to EPA by April 5 and scheduled a hearing on the motion to stay for May 14, 2019.

Permit Holders Should Regularly Assess SWPPPs
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.

Regardless of the outcome, permit holders should regularly assess relevant conditions.  If flood plains have increased or if storm events are expected to be more severe, regardless of the cause, SWPPPs must accurately reflect those conditions.