Boston environmental law group sues Exxon over climate change

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BOSTON — A Boston-based environmental group is joining Attorney General Maura Healey in putting the climate change screws to oil giant ExxonMobil, alleging in a 70-page federal lawsuit filed Thursday that the company is well-aware of the effects of global warming but has done nothing to protect its Mystic River facility to guard against rising sea levels.

“We started our own investigation,” The Conservation Law Foundaton’s Veronica Eady wrote in a brief posted to group’s website in explaining the decision to go after ExxonMobil in federal court, citing media reports she says prove that the company’s knowledge of climate change dates back to the 1970s.  “We found that despite knowing the harm climate change could cause, ExxonMobil left its storage facility in Everett, Mass., on the Mystic vulnerable to flooding from storms and rising seas.

“Now it’s just a matter of time before a giant storm floods our streets with a toxic soup from Exxon’s dilapidated facilities.”

Eady is vice president and director of the foundation.

The lawsuit cites the “citizen suit enforcement provisions” of the Resource Conservation and Recovery Act of 1976, the chief federal law governing hazardous and solid waste disposal, and the Clean Water Act. Healey, who also alleges the company was aware of global warming decades ago and is seeking to press forward with a civil investigation, has cited consumer protection laws.

The foundation’s lawsuit includes two core claims against Exxon.

The first allegation holds that the company is in violation of the RCRA since “sea level rise is imminent” and the company’s facility sits less than 10 feet above sea level.

CLF claims that Everett Terminal “is at risk of being inundated and destroyed by storm surge and sea level rise, because the facility has not been properly engineered, managed, and fortified or, if necessary, relocated to protect from the impending threat of these climate change-related impacts.”

The second allegation holds that the company has violated the Clean Water Act by violating its discharge permit, including accusations that Exxon discharges pollutants, lacks an adequate spill prevention system and has failed to “maintain a Storm Water Pollution Prevention Plan.”

“Because ExxonMobil has not taken climate change impacts into account in its stormwater pollution prevention plan (“SWPPP”), spill prevention, control and countermeasures plan (“SPCC”) and facility response plan (“FRP”), CLF and its members are placed directly in harm’s way and have no reasonable assurance that they will be protected from pollutants released and discharged from the Everett Terminal,” the foundation claims.

The lawsuit also claims that “knowing of the certainty of rising temperatures and rising sea levels since as early as the 1970s, ExxonMobil did not use its findings to prepare its Everett Terminal for such risks” and alleges that the company’s scientists and researchers “were among the first to grapple with the fact that there might be a connection between the carbon dioxide emissions from humanity’s use of fossil fuels and climate fluctuations,” citing several internal memos included as exhibits, which have been previously cited by Healey.

“This lawsuit is yet another attempt to use the courts to promote a political agenda,” Exxon responded in a prepared statement provided to the Associated Press.

The company added that the foundation’s federal complaint is “based on discredited and inaccurate claims by activists about ExxonMobil’s nearly 40-year history of support for climate research that was conducted publicly in conjunction with the Department of Energy, academics and the UN Intergovernmental Panel on climate change.”

Adding to the ordeal is an additional claim made by the foundation accusing the state and federal Environmental Protection Agency of failing to commence court actions” against Exxon.

According to the lawsuit, the foundation notified Exxon in May of its plan to file the federal complaint. On July 8 the foundation “provided Defendants with an ‘Amended Notice of Violations and Intent to File Suit under the Resource Conservation and Recovery Act and Clean Water Act,’”

“More than 60 days have elapsed since Plaintiff served the July 8, 2016 amended notice letter on Defendants, during which time neither the EPA nor the Commonwealth of Massachusetts has commenced and diligently prosecuted a court action to redress the Clean Water Act violations alleged in this complaint,” the suit states. “More than 90 days have elapsed since Plaintiff served the May 17, 2016 notice letter on Defendants, during which time neither the EPA nor the Commonwealth of Massachusetts has commenced and diligently prosecuted a court action to redress the RCRA violations alleged in this complaint.”

The foundation is seeking an order forcing Exxon to revamp the Everett facility in addition to “civil penalties of up to $37,500 per day per day per violation for all Clean Water Act violations occurring between January 12, 2009 and November 2, 2015, and up to $51,570 per day per violation for all CWA violations occurring after November 2, 2015.”

The company, in the past, has labeled Healey’s actions as “fishing expeditions” and is seeking to move the case to federal court in Texas, where Exxon is headquartered. In August the company filed a motion for a preliminary injunction in an effort to shut down Healey’s investigation. According to records filed in U.S. District Court in Dallas, a mediator was assigned to the case last week and both parties were order to meet with 16 days.

Records indicate a meeting has not yet been scheduled.

As for the Conservation Law Foundation, Eady described the case as a “David vs. Goliath” scenario.

“Lower-income, immigrant and communities of color like those along the Mystic have traditionally been denied the same access to resources as their wealthier counterparts and disproportionately over-burdened with pollution, creating an imbalance of power that Exxon has exploited,” she wrote. “But as a lawyer and activist, I believe that our justice system cannot – and must not – be sold off to the highest bidder.”

Read a copy of the lawsuit:

2016-09-29 Conservation Law v ExxonMobil by Evan on Scribd