Novel Clean Water Act Litigation Premised on Anticipating Climate Change Impacts

In late August, the Conservation Law Foundation (CLF), a New England environmental group, sued Shell Oil in the wake of Hurricane Harvey to force industrial facilities to address climate change impacts under the Clean Water Act (CWA). The lawsuit , CLF v. Shell Oil Products US, et al., No. 1:17-cv-00396, which was filed on August 28th in the U.S. District Court for the District of Rhode Island, alleges that the company failed to address potential future impacts from climate change in the CWA-mandated stormwater pollution prevention plan (SWPPP) for its Rhode Island Facility. Under the CWA, a SWPPP must identify potential industrial pollution sources that might affect stormwater discharge quality, and describes practices a facility will use to reduce pollutants and assure compliance with stormwater permit conditions.

CLF claims that facilities such as Shell’s, which sits on the banks of the Providence River, are in a position to discharge toxic chemicals and harm neighborhoods in the event of a natural disaster. CLF’s complaint alleges:

Shell has not taken sea level rise, increased and/or more intense precipitation, increased magnitude and frequency of storm events, and increased magnitude and frequency of storm surges—all of which will become, and are becoming, worse as a result of climate change—into account in its Clean Water Act-required and enforceable [SWPPP].

CLF further alleges that “Shell has knowledge of, and has validated, the scientific certainty that these impacts are occurring or will occur” and points to Shell’s contribution to international climate change reports and Shell’s efforts to design facilities in Canada that account for sea-level rise. The complaint cites statistics purporting to predict an increase in intense rains as a result of climate change, and alleges that these rains are more likely than not to overwhelm the facility’s stormwater management system. CLF alleges that Shell’s lack of consideration of climate impacts makes its SWPPP “untrue, inaccurate, and incomplete, and therefore unlawful” under federal and state law.

This lawsuit is similar to a pending CWA lawsuit CLF has against ExxonMobil in the U. S. District Court for the District of Massachusetts (CLF v. ExxonMobil Corporation, et al., No. 1:16-cv-11950), filed in September 2016, in which CLF has claimed that a facility’s SWPPP violates the CWA by failing to account for sea level rise allegedly caused by climate change. In 2013, the same District Court rejected similar claims by CLF that failure to consider climate change impacts violated the CWA. (See CLF v. EPA, Case No. 1:10-cv-11455.) The Court is currently reviewing ExxonMobil’s motion to dismiss on the grounds of lack of standing and jurisdiction, and failure to state a claim.

It is likely that plaintiffs will continue to file these novel climate change-based CWA claims, particularly on the heels of significant weather events such as Hurricanes Harvey and Irma. With those cases will undoubtedly come increased pressure by plaintiffs on the U.S. Environmental Protection Agency (EPA) and state regulators to expressly incorporate climate change considerations into the CWA and/or state law and stormwater permitting requirements. The cases also will continue to put courts in the daunting position of having to assess the foreseeability of certain extreme weather events, whether those events were caused by global climate change, and whether particular defendants’ operations can be reasonably linked to those global climate change effects. The answers to these questions will be critical in determining whether a particular facility would be required to update its SWPPP and/or best management practices (BMPs) to account for the most extreme and rare weather events—potentially going well above and beyond what facilities currently implement to comply with their stormwater permits.

A Continuing Trend of Climate Change-Related Tort Litigation

The CLF cases appear to be the latest salvo in a growing trend of private and municipal enforcers attempting to hold individual companies responsible for damages allegedly related to global climate change. In July of 2017, three lawsuits were filed against Chevron, ExxonMobil, BP, Royal Dutch Shell, and other companies in California’s Marin County, San Mateo County, and the City of Imperial Beach seeking damages to communities as a result of claimed sea level rise. As in CLF v. Shell, plaintiffs allege these companies have knowingly contributed to climate change and sea level rise through their emissions-causing activities. These lawsuits also seek damages and injunctive relief under public nuisance and negligence theories.

The tort claims described above are just the most recent in a long line of cases involving the claimed effects of a particular industry’s or facility’s emissions on climate change. Claims of this ilk often have been vulnerable to dismissal for failure to establish causation, standing and redressability, and on political question grounds. (See, e.g., American Electric Power Co. v. Connecticut, 131 S. Ct. 2527 (2011), ruling that federal common law claims against large greenhouse gas sources are displaced by CAA; Native Village of Kivalina v. ExxonMobil Corp., 696 F.3d 849 (9th Cir. 2012), finding CAA displaced state common law tort claims alleging climate change-related injuries; Comer v. Murphy Oil USA Inc., 839 F. Supp. 2d 849, 868 (S.D. Miss. 2012), in which tort claims filed by residents of Mississippi Gulf coast after Hurricane Katrina were dismissed on the basis that it was displaced and preempted by CAA, and barred by political question doctrine.)

It is likely that the three lawsuits recently filed in Marin County, San Mateo County, and the City of Imperial Beach, which are based on similar tort theories, would be at risk of dismissal based on similar rationales. In August, defendants Chevron Corporation and Chevron U.S.A., Inc. removed these three cases to the federal district court for the Northern District of California on the basis of federal question jurisdiction, citing to Kivalina and arguing that greenhouse gas claims pose “uniquely federal interests,” and that the Ninth Circuit has recognized that such claims are governed by federal common law. The district courts in these cases will likely be called upon to determine not only whether federal laws like the CWA and CAA continue to displace state law tort claims, but also whether there is a sufficient causal connection between individual dischargers’ activities and global climate change to mandate additional individual BMPs. Although evidence exists supporting correlations between greenhouse gas emissions and global climate change, it will be difficult for plaintiffs to prove both (1) that a single defendant’s emissions resulted in global climate change, sea level rise and/or a particular storm event, and (2) that a particular storm event was caused by greenhouse gas emissions resulting from anthropogenic activities in the first place.

In any event, future extreme weather events, together with the current Administration’s push to roll back climate change regulation at the federal level, could very likely result in increased private litigation seeking to hold individual dischargers responsible for global climate change impacts. It remains to be seen whether federal and state courts will accept the invitation to expand the boundaries of the CWA to accommodate these novel and expansive theories.

(Partner Sheila McCafferty Harvey also contributed to this Alert.)