“Therefore good engineering practices includes consideration of foreseeable extreme weather events such as those caused by climate change.”

A federal judge has allowed the Conservation Law Foundation to proceed with a lawsuit against ExxonMobil that alleges ExxonMobil failed to protect its facility in Everett, Mass., from “climate risks.”

The judge’s decision to allow the lawsuit to proceed marks the first time a company will face a challenge in court for failing to consider imminent danger and risks from possible severe weather events.

The decision came on Wednesday, March 13, by U.S. District Court Judge Mark L. Wolf who ruled that the majority of the Conservation Law Foundation’s (CLF) claims against ExxonMobil should proceed to hearing.

CLF’s lawsuit, filed in 2016, alleges that by failing to consider the imminent extreme weather events Exxon violated permit requirements for its oil storage terminal in Everett, Massachusetts.

The lawsuits’ claims include 10 counts describing “imminent risks” relating to climate change, extreme weather and rising seas that Exxon allegedly failed to consider.

ExxonMobil Oil Storage Terminal Puts Mass. Community at Risk

Exxon’s storage terminal is located north of Boston, along the Mystic River. The facility frequently releases toxic contaminants that are above legal levels. CLF contends that both the community and environment could be at risk in the event of a flood or severe storm.

CLF said in its  amended complaint: “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 President Bradley Campbell said, “Exxon has put vulnerable communities and the harbor at risk as part of its pattern and practice of deceiving regulators and the public about the risks of climate change. Exxon has known about these risks and its ongoing spills for years and is failing its most important duty under the law: to avoid spills of oil and hazardous substances that threaten public health and the environment.”

According to the lawsuit, continuous oil spills at the Everett terminal and Exxon’s failure to address climate risks at the facility are unlawful under the Resource Conservation and Recovery Act and the Clean Water Act.

ExxonMobil Oil Spills Case Will Proceed to Trial, Judge Rules

In November the judge held a hearing in which he dismissed some of the claims in the lawsuit and ordered the CLF to focus on the short term risks. He also ordered the parties involved to have a discussion with the Environmental Protection Agency regarding Exxon’s Clean Water Act permit for the terminal. Subsequently, CLF amended its complaint, focusing solely on short-term “climate-related hazards.”

Daniel J. Toal, Exxon’s attorney, asserted there were no facts to support CLF’s claims. He said that no severe storms have affected the terminal since the lawsuit was filed in 2016.

“CLF hasn’t alleged any imminent injury due to climate change or severe weather events,” Toal said.

Not convinced by Toal’s argument, the judge indicated the facility is in a location vulnerable to storm surge, as evidenced by National Oceanic and Atmospheric Administration models.

“CLF plausibly alleges that severe weather events pose an imminent risk to the terminal,” said Wolf, explaining that although Exxon’s permit does not require it to take into account “climate risk,” it does necessitate Exxon to “abide by good engineering practices.”

The judge accepted CLF’s submission that professionals who work on substantial civil works jobs customarily consider the effects of climate change. “Therefore good engineering practices includes consideration of foreseeable extreme weather events such as those caused by climate change,” he continued.

Campbell expressed his approval for the judge’s ruling: “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.”

Judge Wolf set a tentative hearing date for May 14, the lawsuit can be read in full at clf.org.