Landmark Climate Lawsuit Proceeds Against Shell
October 5, 2020
PROVIDENCE — A landmark climate lawsuit against a fossil fuel behemoth has been given approval to proceed, albeit with a caveat.
U.S. District Court Judge William E. Smith recently denied a request for dismissal by Shell Oil Products U.S. in a case brought by the Conservation Law Foundation (CLF).
The Boston-based environmental advocacy group alleges Shell failed to safeguard Providence and Narragansett Bay from flooding and other climate-crisis threats at its petroleum storage terminal on Providence Harbor.
The 75-acre property and ethanol railcar terminal on Allens Avenue with 25 petroleum storage tanks sits in a flood zone and discharges petroleum and toxic chemicals into the Providence River via stormwater runoff.
According to the lawsuit, the terminal isn’t suited to withstand sea-level rise, increased precipitation, and threats from future storms. CLF accuses Shell of violating the federal Clean Water Act and the Resource Conservation and Recovery Act by withholding information about pollutants the oil storage terminal releases.
In 2018, Shell asked that the lawsuit be dismissed on grounds that the federal court doesn’t have jurisdiction and that its facility is allowed by state permit to pollute, a protection called permit shield.
But in his Sept. 28 decision, Smith said CLF has met the “imminent and substantial endangerment standard” that demonstrates near-term and long-term harm from weather events at the terminal.
“Pleaded facts satisfying this standard (even if the harm may be well in the future) where Plaintiff theorizes that Defendants’ failure to prepare the Terminal for the threat of foreseeable weather events is an imminent endangerment,” Smith wrote.
Regarding jurisdiction, Smith reasoned that CLF isn’t challenging the terms of the state permits therefore the federal court can decide the case.
However, Smith said CLF lacks legal standing for any long-term harms, such as the threat posed by a sea-level increase of 8 feet or more by 2100. Smith cited a judge’s recent decision in a similar CLF lawsuit against ExxonMobil, in which CLF argued that the fossil-fuel company failed to protect its terminal in Everett, Mass., from climate-change impacts. U.S. District Court Judge Mark Wolf ruled that CLF has no standing for long-term climate impacts, but said CLF has standing for near-term threats from severe weather events that may harm environmental and economic well-being.
“Plaintiff has pleaded all necessary elements as to near-term harms, so dismissal for lack of standing on these claims is not warranted,” Smith wrote.
Smith also ruled that it is premature to dismiss Motiva Enterprises LLC from the lawsuit. Motiva operated the Providence Terminal in joint ownership with Shell until the business was dissolved in 2017.
In the Massachusetts lawsuit, Wolf declined a motion to dismiss by ExxonMobil but then decided to stay the case until the Environmental Protection Agency issues a new permit for the facility, a process that could take years to complete. A decision is pending on CLF’s appeal of the stay.
“Our view is that the area can’t wait years for these issues to be corrected,” CLF spokesperson Jake O’Neill said.
The Rhode Island case will now proceed to the discovery phase of the trial, a step that no other climate-crisis case against a fossil fuel company has achieved.