A New Path for Climate Justice Litigation: Compelled Private Adaptation
By Thomas Landers, Staff Contributor
A trailblazing lawsuit filed last fall seeks to compel a private entity to adapt to climate change—in other words, to adequately prepare for expected impacts of climate change.
In the suit, the Boston-based Conservation Law Foundation (CLF) alleges that ExxonMobil’s failure to address known climate risks at one of its marine oil terminals violates federal law. The 110-acre facility abuts the Mystic River upstream from Boston Harbor and the towns of Chelsea and Everett. The water level is rising, and storm surges are increasingly likely to wash the facility’s fuel and other toxic material down river. If the company does not adequately address these risks, the residents in these communities will pay the price, both in terms of public health threats and hefty cleanup costs.
CLF’s legal theory is that ExxonMobil’s “knowing disregard of the imminent risks of climate change” and its “continuing failure to fortify the Terminal against such known risks” violate the Clean Water Act and the Resource Conservation and Recovery Act (RCRA). CLF claims the company must incorporate the risks of sea level rise and extreme weather events into its stormwater management plans required by the Clean Water Act, and that its failure to adapt to these risks constitutes “imminent and substantial endangerment” under RCRA. As relief, in addition to civil penalties, CLF seeks to enjoin ExxonMobil from “further violating” the Clean Water Act and RCRA.
This is the first attempt at forcing a private entity to implement climate change adaptation measures. Prior to CLF’s lawsuit, climate change adaptation litigation had largely focused on governmental planning processes, which are no doubt pivotal. The first step in ensuring effective state and local adaptation plans is tracking them, and the Georgetown Climate Center has a handy website that does so.
More generally, climate litigation has targeted mitigation (reducing greenhouse gas emissions) rather than adaptation. Now, a ruling in CLF’s favor “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.”
But whether CLF wins or loses, its innovative litigation raises important questions: Why haven’t others brought lawsuits like this before? Is it worth bringing similar suits, perhaps based on different legal theories? More fundamentally, to what extent can today’s laws, which generally are rooted in the paradigms of preservation and restoration, compel adaptation to transformative challenges like climate change?
At the very least, it is well worth fleshing out the range of possible legal theories under current law that could justify compelled private adaptation, and the good news is that this research is already underway. The Sabin Center for Climate Change Law recently created a page compiling legal resources for climate adaptation, including “specific legal provisions that could be interpreted as requiring consideration of climate-related risks.” The website contemplates litigation against both public and private entities, and many of the theories could support suits solely against private actors. In addition to the Clean Water Act and RCRA, the Sabin Center’s list includes not only other environmental laws, but also statutes covering other substantive areas (e.g., the Americans with Disabilities Act), common law doctrines, and other areas of law such as “Contractual, Fiduciary and Professional Obligations.”
A closer look at CLF’s suit provides a better sense of how one might use these existing laws to compel private adaptation. With respect to the Clean Water Act, CLF charges that ExxonMobil has violated its National Pollutant Discharge Elimination System (NPDES) permit. CLF relies on various regulatory provisions involving Storm Water Pollution Prevention Plans (SWPPPs) and Spill Prevention, Control, and Countermeasures (SPCC) Plans, both of which CLF says ExxonMobil’s NPDES permit had to include. For instance, CLF alleges that “[c]limate change-induced and affected factors such as sea level rise, storm surge, precipitation, and [extreme] weather events . . . can reasonably be expected to cause or contribute to the discharge of oil in quantities that may be harmful to receiving waters in violation of the SPCC regulations, the SWPPP, and the Permit.” Under 40 C.F.R. § 112.1(e), an SPCC Plan must “minimize the potential for discharges [and] address all relevant spill prevention, control, and countermeasures necessary at the specific facility.”
CLF claims that “[d]ue to ExxonMobil’s failure to consider climate change information, including information known to ExxonMobil, the SPCC [Plan] fails to include necessary discharge prevention measures including” a litany of detailed actions. As a result, “ExxonMobil has failed to implement adequate spill prevention and response procedures, in violation of the Permit and the Clean Water Act.”
CLF’s RCRA claim is that ExxonMobil’s failure to adapt to sea-level rise and increased storm surge constitutes an “imminent and substantial endangerment.” CLF asserts that the threats of sea-level rise and significant storm surge are “imminent,” and that these threats “will result in releases of solid and/or hazardous wastes into the environment and surrounding residential communities.” Courts have clarified the meaning of “imminent” under RCRA: “a reasonable prospect of future harm is adequate to engage the gears of RCRA § 7002(a)(1)(B) so long as the threat is near-term and involves potentially serious harm.” CLF will actually need to satisfy another version of “imminence” in order to establish standing (a plaintiff’s right to have its case heard in court): plaintiffs seeking injunctive relief “must show their injuries are ongoing or likely to recur.” Perhaps CLF will be able to make this showing by alleging, as it does, that ExxonMobil’s inadequate fortifications led to pollutant discharges during recent extreme weather events.
In response to CLF’s RCRA claim, ExxonMobil argues, among other things, that it is under no obligation to take “immediate action” to address the “purely theoretical possibilit[ies]” of sea-level rise and flooding of the terminal. And yet, the company is in fact taking precautionary action in the face of climate threats to its facilities elsewhere: “Given the spatial and temporal uncertainties of many extreme weather events, particularly with respect to future changes in climate, facilities are generally engineered to be resilient to extreme event[s], with the inclusion of additional safety factors.” For instance, ExxonMobil has “built oil rigs in the North Sea to withstand projected climate impacts like sea level rise and rising temperatures.”
Whether courts side with CLF or ExxonMobil on these particular claims, others should follow CLF’s lead. The outcome of its cutting edge lawsuit should provide many lessons about the kind of approach CLF chose. At the same time, it is worth testing other theories that could support suits compelling private adaptation. Such litigation can help ensure that the entities primarily responsible for climate change—and private actors in general—pay their fair share of adaptation costs. Communities and local governments cannot and should not bear that burden by themselves. Moreover, litigants could target private litigation suits against sites that present the greatest threats to the most vulnerable communities. In this way, private adaptation suits could be a powerful tool to promote climate and environmental justice.
 Compl., Case 1:16-cv-11950-MLW, ECF No. 1(Sept. 29, 2016); see also Natasha Geiling, Exxon faces a first-of-its-kind lawsuit over climate deception, ThinkProgress.org (Sep 29, 2016), https://thinkprogress.org/exxon-water-lawsuit-b36335e4e093.
 Geiling, supra note 1.
 Compl., supra note 1, ¶¶ 98, 169.
 Id., ¶ 170.
 Id., ¶¶ 211-82.
 Id., ¶ 186 (citing 42 U.S.C. § 6972(a)(1)(B)).
 Id., ¶ 295(a)-(b).
 See Geiling, supra note 1.
 See generally Jacqueline Peel & Hari M. Osofsky, Sue to Adapt?, 99 Minn. L. Rev. 2177 (2015).
 State and Local Adaptation Plans, Georgetown Climate Center, http://www.georgetownclimate.org/adaptation/plans.html (last visited March 31, 2017).
 See Peel & Osofsky, supra note 9.
 Geiling, supra note 1 (quoting Prof. Pat Parenteau at Vermont Law School).
 See generally Robin Kundis Craig, “Stationarity Is Dead”—Long Live Transformation: Five Principles for Climate Change Adaptation Law, 34 Harv. Envtl. L. Rev. 9 (2010).
 Legal Resources for Climate Change Adaptation, Sabin Center for Climate Change Law, http://columbiaclimatelaw.com/resources/adaptation-database (last visited April 1, 2017); see also Jessica Wentz, New: Adaptation Resource Database, Climate Law Blog (March 23, 2017), http://blogs.law.columbia.edu/climatechange/2017/03/23/new-adaptation-resource-database.
 Legal Resources for Climate Change Adaptation, supra note 13.
 Compl., supra note 1, ¶ 1.
 Id., ¶¶ 61, 65.
 Id., ¶ 251.
 Id., ¶ 67.
 Id., ¶¶ 265-72.
 Id., ¶ 273.
 Id., ¶ 186 (citing 42 U.S.C. § 6972(a)(1)(B)).
 Id., ¶¶ 176-77.
 Id., ¶ 185.
 Me. People’s All. & Nat. Res. Def. Council v. Mallinckrodt, Inc., 471 F.3d 277, 296 (1st Cir. 2006).
 Juliana v. United States, No. 6:15-CV-01517-TC, 2016 WL 6661146, at *11 (D. Or. Nov. 10, 2016) (holding that youth plaintiffs had standing to sue the government over its alleged failure to protect the climate as a public trust).
 Compl., supra note 1, ¶ 79.
 Mem. of Law in Supp. of Defs.’ Mot. to Dismiss, Case 1:16-cv-11950-MLW, ECF No. 17, at 27 (Dec. 6, 2016).
 Energy and Carbon — Managing the Risks, ExxonMobil, http://cdn.exxonmobil.com/~/media/global/files/energy-and-environment/report—energy-and-carbon—managing-the-risks.pdf (last visited March 27, 2017); see also Compl., supra note 1, ¶¶ 155-56.
 Geiling, supra note 1.