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Kanner & Whiteley and CLF Defeat Shell Oil’s Motion to Dismiss in Climate Adaptation Case

In a case brought by the Conservation Law Foundation together with Kanner & Whiteley against Shell Oil Company, CLF alleges that Shell Oil Company is out of compliance with its permit under the Clean Water Act (CWA) and the Resource Conservation and Recovery Act (RCRA) because the company has failed to design and maintain its coastal terminal in New Haven, Connecticut in a way that accounts for increased risks of severe weather exacerbated by the present and near-future effects of climate change.  On September 16, 2022, the District of Connecticut denied the majority of Shell Oil’s motion to dismiss, holding that nearly all of CLF’s claims could move forward into discovery.

The court found that CLF possessed sufficient standing to bring the majority of its claims, finding that climate change-induced risks to coastal infrastructure are “certainly impending [] enough to meet the standard,” and present a substantial risk of injury to the organization’s members.

The court also dismissed as meritless Shell’s contention that “plaintiff ‘seeks to hold the Defendants liable for’ future risks that fall outside the five year life of the Permit,” noting that “plaintiff has alleged ‘that a major weather event, magnified by the effects of climate change, could happen at virtually any time, resulting in the catastrophic release of pollutants due to Defendants’ alleged failure to adapt the Terminal to address those impending effects.”

Shell’s motion was granted only with regard to two of plaintiff’s RCRA claims, which were held to be prohibited based on the presence of an EPA-approved state hazardous waste program, and with regard to all but one of plaintiff’s claims against Motiva, a named defendant corporation that owned the terminal at issue between 2000 and 2017.

A copy of the opinion can be found here.

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