The Boston-based Conservation Law Foundation filed a lawsuit against ExxonMobil on Thursday, arguing that the company is violating several key water regulations at one of their Boston storage and transfer locations.
The site in question — located in the Boston suburb of Everett, Massachusetts — is a sprawling, 110-acre terminal that extends to the bank of the Mystic River. The complaint alleges that the terminal has released toxic pollutants into the water for years, and that the company has failed to make improvements to the terminal to strengthen it against the risks of climate change — violating both the Clean Water Act (CWA) and the Resource Conservation and Recovery Act (RCRA).
“This is a stunning example of how ExxonMobil’s climate deceit hits home, where their repeated sworn, but false, statements to regulators that this facility was prepared for climate conditions put the surrounding communities that have hosted the facility for years in danger,” Brad Campbell, president of the Conservation Law Foundation, told ThinkProgress.
According to investigative reports published last year by both InsideClimate News and the Los Angeles Times, ExxonMobil’s internal scientists knew about the role of fossil fuels in driving global warming as early as 1977, and yet publicly continued to fuel doubt about climate science.
Exxon also built oil rigs in the North Sea to withstand projected climate impacts like sea level rise and rising temperatures.
Yet the company failed to make the same structural improvements to its terminal in Massachusetts, the lawsuit claims, leaving surrounding communities at risk of toxic pollution during severe storm events or floods. According to the complaint, the Everett Terminal is especially vulnerable to the impacts of climate change predicted to hit New England in the coming years: sea level rise, increased precipitation, increased magnitude and frequency of storm events, and increased magnitude and frequency of storm surges.
“All of the available modeling shows that this facility would be underwater in the event of a Category 1 storm,” Campbell said. “And yet [Exxon has] done nothing to protect surrounding communities from the types of tank collapses we have seen in the Gulf, or in [Super]storm Sandy, where inundation quite directly resulted in the collapse of tanks and the release of oil and hazardous substances into waterways and into surrounding communities.”
If tanks were to collapse, they could send huge amounts of toxic pollutants, like arsenic and benzene, into the Mystic River.
And while parts of the lawsuit are fairly standard, the complaint’s focus on climate impacts is novel.
“All of the available modeling shows that this facility would be underwater in the event of a Category 1 storm.”
“Some of what is in the complaint is standard, where they are alleging that Exxon has been consistently violating its permit limits on certain contaminants, its monitoring requirements…those are pretty standard allegations in a citizen suit under the Clean Water Act,” Pat Parentaeu, professor of law at Vermont Law School, told ThinkProgress. “This is certainly the first citizen suit that I have seen where you are premising a major part of your case on climate threat.”
According to Parenteau, the Conservation Law Foundation’s case will hinge on whether or not these climate impacts mean that Exxon is in violation of its permit with the EPA — and whether or not Exxon was completely forthcoming with its climate knowledge when it applied for those permits.
Campbell argues that Exxon’s own discharge reports show that they are already in violation of their permit, largely because they have not updated the facility to respond to the 70 percent increase in heavy rain events throughout the Northeast since 1958 — an increase the National Climate Assessment linked to climate change.
In 2006, the terminal spilled around 15,000 gallons of diesel into the Mystic River; ExxonMobil Pipeline Company, the defendant in that case and a subsidiary of Exxon, was found guilty of criminal violations of the Clean Water Act and ordered to pay $6.1 million in fines.
“Based on our investigation and Exxon’s own self-reporting to EPA they are in constant violation of their permit, releasing potent carcinogens in some cases at thousands of times their permit limit,” Campbell said.
The lawsuit is just the latest legal issue for Exxon, which is facing a handful of investigations at both the state and federal level since the reports detailing the company’s internal knowledge of climate change were made public last year. Currently, Exxon is under investigation by attorneys general in Massachusetts, New York, and California, and is also being investigated by the SEC for potential fraud.
“Based on our investigation and Exxon’s own self-reporting to EPA they are in constant violation of their permit, releasing potent carcinogens in some cases at thousands of times their permit limit.”
“It is part of the larger narrative on Exxon that Exxon is not disclosing to its shareholders and to its consumers or the public at large what it knows about the risks of climate change and what those risks mean to its assets,” Parenteau, who is not involved with any of the pending cases or investigations, said. “This is a physical risk to the asset.”
As of publication, Exxon had not responded to ThinkProgress’ request for comment.
If the court rules in favor of the Conservation Law Foundation, Parenteau said it could set a precedent for other companies, requiring them to take a closer look at how structures located in coastal zones or flood plains could be susceptible to the impacts of climate change. Parenteau also said it could ostensibly have an impact on the factors the EPA chooses to consider when issuing permits under the CWA or RCRA.
“Maybe it will cause EPA to take another look at their guidelines on what has to be in these permits, and what constitutes best management practices in these high hazard areas,” Parenteau said. “I do think that the Conservation Law Foundation has made a very good policy point here that the standard procedures that we have been following are kind of out the window.”