United States: New Wave Of Climate Change Related Litigation Focuses On Industry

Last Updated: September 26 2017
Article by Van P. Hilderbrand Jr and Marian C. Hwang

Climate change related cases are on the rise nationwide, just like sea water levels. In fact, according to a United Nations study released in May 2017, the U.S. has three times more climate change litigation cases than the rest of the world combined, and the number of countries with climate change cases has tripled since 2014. In conjunction with the increased number of cases, there has been an uptick in novel legal arguments lodged against governments, government officials, and industry to force each to address, mitigate, and adapt to the risks to human health and the environment posed by the earth's changing climate.

Notable U.S. Climate Change Cases

The two most notable U.S. cases both involve the Federal government's response to (or lack of response to) climate change impacts. The Supreme Court of the United States, in Massachusetts v. EPA, 549 U.S. 497 (2007), held that the U.S. Environmental Protection Agency (EPA) has an "affirmative statutory obligation to regulate greenhouse gases" under the Clean Air Act, 42 U.S.C. §§ 7401, et seq. This ruling has served as the backbone of many policy and regulatory decisions during the previous Obama Administration, such as the Clean Power Plan.

In pending litigation in the U.S. District Court for the District of Oregon, Juliana, et al. v. United States of America, et al. (Case No. 15-01517), a group of twenty-one (21) plaintiffs (ages 10-21) claim that the Federal government is violating the Constitution and the public trust doctrine by failing to reduce greenhouse gas emissions to protect future generations. The judge declined to dismiss the case and set a trial date of February 2018. The government, however, filed a petition for writ of mandamus in June 2017 asking the U.S. Court of Appeals for the Ninth Circuit to either direct the lower district court to dismiss the case or to stay proceedings in the district court until it decides on the merits of the petition. Several amicus curiae briefs were filed on September 5, 2017 in opposition to the case's dismissal. The court has not yet ruled on the extraordinary request. Although filed in 2015, this case will certainly apply pressure on the current administration's revised climate change positions.

As we endure severe weather events such as Hurricanes Harvey and Irma while at the same time the current administration continues to unravel many of the policy directives set during the Obama Administration aimed at curbing greenhouse gas emissions, including withdrawing from the Paris Climate Accord, environmental groups and concerned citizens are turning to the judiciary to address the risks of climate change. However, the question of whether industry and others that may have a duty of care must consider climate change in their decision-making and the scope of that consideration is still unchartered as lower courts have not had many opportunities to address this issue. Discussed below are a few pending actions that will potentially provide the courts that opportunity.

Several Lawsuits Have Been Filed Against Industry to Force Companies to Consider Impacts of Climate Change

CLF v. Shell Oil Products US, et al.

The latest citizen suit was filed on Monday, August 28, 2017 by the Conservation Law Foundation (CLF) against Shell Oil Products US, its parent Royal Dutch Shell PLC, and other company wholly-owned subsidiaries in the U.S. District Court for the District of Rhode Island. CLF v. Shell Oil Products US, et al. (Case No. 17-00396). Among other points, plaintiff CLF argues that the company failed to address the impacts of climate change – such as sea level rise, increased precipitation, and increased severity and frequency of storm events – in its Storm Water Pollution Prevention Plan (SWPPP) for its bulk storage and fuel terminal situated on the banks of the Providence River.

The SWPPP is required by the company's Rhode Island Pollutant Discharge Elimination System permit and the Clean Water Act (CWA), 33 U.S.C. §§ 1251, et seq., and requires permit holders to take all reasonable steps to minimize or prevent any discharge which has a reasonable likelihood of adversely affecting human health or the environment. Material handling and storage, equipment maintenance and cleaning, and other activities at industrial facilities are often exposed to storm water runoff generated from rain and flooding. Runoff that comes in contact with these activities can pick up pollutants, and transport them directly to a nearby river, lake, or coastal water or indirectly via a storm sewer and degrade water quality.

In the complaint, CLF claims the company knows that the impacts of climate change are occurring or will occur in the future. Further, CLF states that the "location, elevation, and lack of preventative infrastructure" makes the terminal "especially vulnerable to these risks" and that the company has not "implemented any actions to address, mitigate, or eliminate these vulnerabilities." In other words, CLF argues that Shell should take all reasonable steps to prevent a discharge of pollution into the Providence River that would occur if the facility were to be flooded, but has not done so to date.

This is not CLF's first time making this argument.  

CLF v. ExxonMobil Corp., et al

In late 2016, CLF filed a similar citizen suit against ExxonMobil Corporation in the U.S. District Court for the District of Massachusetts, alleging that the company had violated provisions of the CWA and the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. §§ 6901, et seq., by failing to plan for climate change impacts at an oil terminal near the Island End and Mystic Rivers in Massachusetts. CLF v. ExxonMobil Corp., et al (Case No. 16-11950).

Specifically, CLF alleged that ExxonMobil did not consider climate change and the increasing risk of severe weather events and floods when it developed and implemented its SWPPP and its Spill, Prevention, Control, and Countermeasures Plan (SPCCP) for the terminal as required in the facility's CWA National Pollutant Discharge Elimination System (NPDES) permit. Further, plaintiff alleged that under RCRA, the company failed to manage the risks of a discharge from the heavily contaminated facility that would be caused by flooding and severe weather. Finally, CLF alleged that the company failed to inform EPA of "relevant facts" regarding its pollution discharges because the company has known for decades about the effects of climate change and failed to disclose that information to the agency.

On September 13, 2017, the District Court ruled on ExxonMobil's pending motion to dismiss the case, finding that CLF could move the action forward. The Court stated that CLF had a "plausible claim that there is a 'substantial risk' that severe weather events, such as storm surges, heavy rainfall, or flooding, will cause the terminal to discharge pollutants into those areas in the near future and while the Permit is in effect." The Court also noted that CLF had well-plead facts sufficient to prove that the company was discharging pollutants causing harm to the aesthetic and recreational interests of CLF's members. The judge did dismiss CLF's claims for potential harms that were not "imminent" and would not occur until much later "in the far future, such as 2050 or 2100." The Court found that CLF lacked standing to bring those claims at this time.

Thus, the Court drew a line between the harms resulting from rising sea levels and severe weather events in the near future and those in the far future, finding that the later are not ripe for review.  All eyes are now on Judge Smith and the U.S. District Court for the District of Rhode Island to see if that court comes to the same conclusion.

California Lawsuits

Another eagerly watched action was recently filed in California state court. In July 2017, two coastal northern California counties and a southern California city each filed lawsuits against oil, gas, and coal companies alleging that the companies knowingly emitted greenhouse gases and knew that the emissions contributed to a wide range of "dire climate-related affects" that threaten their shorelines and communities. Further, the plaintiffs allege that the defendants concealed and denied this knowledge while promoting and profiting from their continued operations.

Fossil Fuel Industry Investigation by New York and Other State Attorney Generals

The argument that large fossil fuel industry companies knew about the impacts of climate change for decades is in line with New York State Attorney General Eric Schneiderman's and the U.S. Securities and Exchange Commission's ongoing investigation into whether these companies adequately accounted for the cost of climate change regulations and the possibility that they could create stranded and obsolete assets. Further, the investigation hopes to answer whether the companies continued to sell high-emitting fossil fuels despite knowing for years that their use exacerbates climate change. The result and findings of the investigation could provide more ammunition for plaintiffs.

Arkema Chemical Plant Experiences Safety Hazards as A Result of Flooding from Hurricane Harvey

Hurricane Harvey ravaged East Texas recently leaving behind high water and severe damage to homes, businesses, and to industrial facilities. The Arkema chemicals plant in Crosby, Texas experienced first-hand the dangers of perhaps not adequately considering flooding and extreme weather events.  Plant workers went to extraordinary measures to move liquid organic peroxide and other chemicals that potentially could ignite if not kept cool when the storm and severe flooding knocked out the plant's main power, backup generators, and refrigeration system. The plant also stores other hazardous chemicals whose release would have contaminated a wide area and affected more than a million residents in the area. Luckily, this did not happen.

According to a recent New York Times article, hurricane, flooding, and resulting power outages were identified as risks by Arkema management a decade ago after Hurricane Ike hit Texas in 2008. However, it is reported that the company did not update its contingency plans and chemical safety risk management plans (RMP) to protect against releases of hazardous chemicals into the environment as a result of these events. The current administration has delayed the implementation of more stringent chemical safety rules established during the Obama Administration. It remains to be seen if, in light of this event, EPA may reconsider its position. Either way, similar claims that companies must consider the potential impacts of climate change when developing their RMPs may be the next target of litigation.

What are the Ramifications and What Should Companies Do?

There are thousands of facilities that are subject to NPDES permits, either storm water (e.g., construction, industrial, municipal), industrial wastewater, municipal wastewater, animal feeding operations, etc. If the courts accept CLF's arguments, this could open the floodgate for environmental groups nationwide to file more actions, including similar claims that RMPs prepared under §112(r) of the Clean Air Act must also consider the potential impacts of climate change. If so and to minimize the potential of becoming a target of litigation, companies would need to develop and certify new SWPPPs or RMPs in order to account for the impacts of climate change.  

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of www.mondaq.com

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions