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Judge rejects Exxon's plea to dismiss climate lawsuit involving oil terminal

A federal judge has largely rejected Exxon Mobil Corp.'s petition to dismiss a lawsuit by the Conservation Law Foundation that claims the company violated permit requirements for its oil terminal in Everett, Mass., by failing to account for climate change-related risks.

Judge Mark Wolf of the U.S. District Court for the District of Massachusetts in a March 14 order ruled that 12 of the Conservation Law Foundation's, or CLF's, claims against Exxon would not be dismissed, including some asserting that Exxon has failed to address imminent risks from rising seas, extreme weather and climate change.

The judge did, however, dismiss three counts alleging that Exxon failed to comply with the permit's operational requirements for discharges; violated permit prohibitions on "visible oil sheen, foam, or floating solids"; and made unpermitted discharges into a pond within the Everett terminal.

"Today's decision brings us one step closer to safeguarding the families and businesses near the Mystic and Island End Rivers, protecting the public's investment of billions for a clean Boston Harbor, and ensuring that Exxon is held accountable for years of risk-taking and law-breaking at the expense of public safety," Bradley Campbell, CLF's president, said in a statement.

Exxon declined to comment on the court's action.

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Exxon's oil terminal discharges into the Island End River, which feeds into the Mystic River north of Boston. CLF claims the project regularly discharges toxic pollutants above levels allowed under the Clean Water Act as well as a permit issued by the U.S. Environmental Protection Agency and the Massachusetts Department of Environmental Protection.

In its initial complaint in 2016, CLF said the project had discharged pollutants in excess of allowable levels at least 164 times since 2010. CLF also argued that Exxon's stormwater pollution prevention plan under the permit fails to account for the risks of climate change. The spectrum of fuels handled by the terminal includes gasoline, low sulfur diesel, jet fuel, heavy oil and fuel additives, CLF said.

"The terminal is likely to discharge and/or release pollutants into surrounding waters, groundwater, the community, and the air because it has not been designed to withstand flooding associated with storm events and storm surge, tides, sea level rise, and increasing sea surface temperatures," CLF said in 2017 in an amended complaint. CLF argued that Exxon has known about the risks of climate change for years.

CLF has asked the court to order Exxon to bolster the Everett terminal against climate-related risks and pay civil penalties for allegedly violating the Clean Water Act at the facility.

The court case — Conservation Law Foundation v. ExxonMobil (1:16-cv-11950) — is proceeding even as the EPA is considering Exxon's request to renew its permit for the terminal. Exxon told the court in December 2018 that the EPA expects to rule on the application no later than 2022.

Exxon in its 2017 motion to dismiss argued that neither the permit nor any applicable statute or regulation requires it to consider "the speculative climate change risks on which CLF predicates its claims." Moreover, the company said, "the permit expressly specifies the severe weather event for which the terminal must prepare," mandating that it be equipped to handle a one-in-10-year event during which 4.6 inches of rain falls within a 24-hour period. The oil giant also argued that CLF failed to demonstrate how climate change or severe weather events create a risk that the Everett terminal could cause any imminent injury to health or the environment.

Exxon has separately asked for the U.S. Securities and Exchange Commission's blessing to block a vote at its annual meeting this year on a shareholder's proposal that asks the company to report on the risks that its petrochemical operations and investments face from climate change-induced storms, flooding and sea level rise.