Tone Down Climate Change in Suit Against Exxon: Judge

Turn to the nation's most objective and informative daily environmental news resource to learn how the United States and key players around the world are responding to the environmental...

By Adrianne Appel

A federal judge said he wanted to avoid having “the Scopes Monkey Trial of the 21st Century,” and ordered an environmental organization to remove claims based on climate change in its lawsuit against Exxon Mobil Corp.

Judge Mark Wolf said he did not want the lawsuit to turn into a trial about whether climate change exists, the way the 1925 trial about whether evolution could be taught in Tennessee public schools took up the debate about human origin.

The Conservation Law Foundation filed the first in the nation suit in 2016, ( Conservation Law Foundation v. ExxonMobil , D. Mass., No. CV-16:11950, Dismissal denied, Amend complaint 9/12/17 ) alleging an Exxon Mobil oil and gas storage facility on the banks of the Mystic and Island End rivers, in Everett, Mass., has not been sufficiently upgraded to handle climate change impacts.

The Conservation Law Foundation alleged that Exxon Mobil’s terminal regularly discharges water polluted with byproducts of fuel oil, gasoline and chemicals into the rivers, in violation of the Clean Water Act, and that heavy rains caused by climate change will bring harm to neighbors and wildlife.

More Rain Storms

“This is about rainwater runoff,” as a result of intense storms, which would send byproducts of fuel oil, gasoline and other chemicals from Exxon’s facility into the Mystic River, Allan Kanner, attorney with Kanner & Whitely, told Wolf as he argued on behalf of Conservation Law Foundation in the U.S. District Court for the District of Massachusetts.

“We engineer all our facilities to withstand extreme weather events, regardless of the cause,” Daniel Toal, a partner with Paul Weiss, who argued on behalf of Exxon Mobil, said.

Exxon Mobil asked to have the suit dismissed and told Wolf during oral arguments Sept. 12 in Boston that the environmental organization’s claims lack merit.

Suit Not Dismissed

Wolf said he would not dismiss the suit. But he told the environmental organization to amend its 14-count complaint and strip out major references to harm caused by climate change that would take place in 2050 and later.

The Conservation Law Foundation should make its complaint more narrowly focused on the alleged lack of good engineering practices at the Exxon Mobil facility that allows the alleged pollution to be discharged into the rivers, Wolf said.

It is “material” to the case whether there is a foreseeable risk of substantial change in sea level. But it isn’t important whether the cause of the sea level is due to “warming of the atmosphere or a Noah’s Ark phenomenon,” Wolf said.

Toal and those representing Exxon Mobil at the hearing declined to comment Sept. 12 to Bloomberg BNA.

Bradley Campbell, president of Conservation Law Foundation, told Bloomberg BNA the judge “clearly understands the claims we are making” and wants to make sure the harm and risks the court is being asked to consider are already occurring or imminent, rather than “happening in centuries.”

To contact the reporter on this story: Adrianne Appel in Boston at aappel@bna.com

To contact the editor responsible for this story: Rachael Daigle at rdaigle@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

Try Environment & Energy Report