On September 28, Kanner & Whiteley and Conservation Law Foundation (CLF) defeated Shell Oil Company’s motion to dismiss their landmark citizen suit alleging violations of the Resource Conservation Recovery Act (RCRA) and the Clean Water Act (CWA), based on Shell’s failure to secure its Providence, Rhode Island oil terminal and storage facility to withstand the current and future effects of climate change. The complaint alleges that Shell violated its CWA permit by illegally discharging and improperly maintaining its facilities, as well as by failing to strengthen its infrastructure against foreseeable risks posed by increased storm surge and flooding due to climate change. Such a failure will cause further pollution at and around the terminal, placing the public in imminent danger.
U.S. District Judge William E. Smith denied Shell’s motion, in large part, finding that CLF does in fact have standing to sue and that CLF properly alleged claims under both the CWA and RCRA related to the foreseeable risks of discharges due to increased variability of weather events as a result of climate change. The court further found that the application of the primary jurisdiction doctrine was not justified in this case. The claims may now proceed, which marks a significant step in climate change-related precedent. This is the first climate change case of its type to proceed to discovery.