Conservation Law Found., Inc. v. ExxonMobil Corp., C.A. No. 16-11950-MLW

448 F.Supp.3d 7

CONSERVATION LAW FOUNDATION, INC., Plaintiff,

v.EXXONMOBIL CORP., ExxonMobil Oil Corp., ExxonMobil Pipeline Co., Defendants.

C.A. No. 16-11950-MLW

United States District Court, D. Massachusetts.

Filed March 21, 2020

Allan Kanner, Pro Hac Vice, Allan Kanner & Associates, Allison S. Brouk, Pro Hac Vice, Elizabeth B. Petersen, Pro Hac Vice, Kanner & Whiteley, LLC, New Orleans, LA, Christopher M. Kilian, Pro Hac Vice, Conservation Law Foundation, Montpelier, VT, Ian D. Coghill, Conservation Law Foundation, Boston, MA, for Plaintiff.

Daniel J. Toal, Pro Hac Vice, Jamie D. Brooks, Pro Hac Vice, John F. Baughman, Pro Hac Vice, Theodore V. Wells, Jr., Paul, Weiss, Rifkind, Wharton & Garrison, LLP, New York, NY, Deborah E. Barnard, Jessica Ragosta Early, Holland & Knight, LLP, Boston, MA, for Defendants.

MEMORANDUM AND ORDER

WOLF, D.J.

I. INTRODUCTION

Defendants ExxonMobil Corp., ExxonMobil Oil Corp., and ExxonMobil Pipeline Co. (together, "Exxon") operate a petroleum storage and distribution terminal in Everett, Massachusetts (the "Terminal"). The Terminal receives petroleum-based products at a marine dock, transfers the products to storage tanks through above-ground pipes, and then distributes the products at truck-loading racks. In the course of normal operations, the Terminal discharges pollutants into the Island End River pursuant to a permit (the "Permit") issued by the Environmental Protection Agency (the "EPA"). The Permit expired in January 2014. Exxon has filed an application for renewal. The EPA has administratively continued the Permit, meaning that its terms remain in effect.

Plaintiff Conservation Law Foundation ("CLF") alleges that Exxon is violating the Permit, the Clean Water Act ("CWA"), and the Resource Conservation and Recovery Act ("RCRA"). Among other things, it asserts that the Permit requires Exxon to consider predictable weather patterns--including flooding and severe storms caused by climate change--in maintaining the Terminal, and that Exxon has failed to do so, creating a risk of imminent harm from the inadvertent discharge of pollutants. CLF seeks statutory damages and injunctive relief.

Exxon moved to dismiss the Amended Complaint for lack of standing and failure to state a claim upon which relief can be granted.¹ In March 2019, the court denied in part Exxon's Motion to Dismiss. It found that CLF plausibly alleges both standing and entitlement to relief with respect to potential harms from flooding and severe storms in the near future.

Exxon now moves to stay this case until the EPA renews the Permit. It relies on the doctrine of primary jurisdiction, under which a court may stay claims involving issues within an executive agency's authority and expertise. Exxon argues that how it must consider predictable weather patterns implicates scientific and policy issues that the EPA, not the court, should decide. In opposition, CLF argues that a stay would prejudice CLF and undermine the citizen suit provisions of the CWA and RCRA. It also asserts that the EPA's eventual action on the Permit will not resolve the underlying issues in this case.

On May 14, 2019, the court heard oral argument and took Exxon's Motion to Stay under advisement. At the hearing, the court also heard from Carl Dierker, Regional Counsel for EPA Region 1. In essence, Dierker stated that Region 1 is working in good faith to renew the Permit by 2022.

The court recognizes that the doctrine of primary jurisdiction must be applied sparingly, especially in citizen suits authorized by Congress. However, this case involves a rare set circumstances in which deferring to the primary jurisdiction of the EPA is justified and appropriate. First, determining permit conditions are at the heart of the EPA's authority under the CWA. Second, how Exxon must consider predictable weather patterns--including flooding and severe storms caused by climate change--raises scientific and policy issues that the EPA is better equipped to decide than the court. Third, the EPA's renewal of the Permit may render CLF's request for injunctive relief moot. Finally, resolving this case on the merits would take at least as long as the EPA predicts it will take to renew the Permit on terms that are now most appropriate. Accordingly, the court is allowing Exxon's Motion to Stay.

II. LEGAL STANDARDS

A. The Clean Water Act ("CWA")

The CWA aims to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). To do so, it prohibits "the discharge of any pollutant by any person" into "navigable waters from any point source." Id. §§ 1311(a), 1362(12). A "point source" is "any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, [or] container ... from which pollutants are or may be discharged." Id. § 1362(14). A "navigable water" is any body of water with a " ‘significant nexus’ to any waters that are or were navigable in fact or that could be reasonably be so made." Rapanos v. United States, 547 U.S. 715, 759, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006) (Kennedy, J., concurring).

Generally, in order to discharge a pollutant into a navigable water from a point source, a person must obtain a permit from the EPA under the National Pollutant Discharges Elimination System ("NPDES").² See 33 U.S.C. §§ 1311(a), 1342. "Congress has vested in the Administrator [of the EPA] broad discretion to establish conditions for NPDES permits." Arkansas v. Oklahoma, 503 U.S. 91, 105, 112 S.Ct. 1046, 117 L.Ed.2d 239 (1992). In doing so, the EPA "analyzes the environmental risk posed by the discharge, and places limits on those pollutants that ... it reasonably anticipates could damage the environmental integrity of the affected waterway." Piney Run Preservation Ass'n v. Cty. Comm'rs of Carroll Cty., Md., 268 F.3d 255, 268 (4th Cir. 2001).

An NPDES permit also gives a permittee immunity from certain CWA liability. Under the permit shield doctrine, "a discharger in compliance with the terms and conditions of an NPDES permit is deemed to be in compliance with those sections of the [CWA] on which the permit conditions are based." EPA v. California, 426 U.S. 200, 205, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976) (citing 33 U.S.C. § 1342(k) ). This immunity also encompasses discharges of pollutants not listed in a permit, if such discharges were "adequately disclosed to the permitting authority." Piney Run Preservation Ass'n, 268 F.3d at 268.

In interpreting an NPDES permit, "if the language of the permit, considered in light of the structure of the permit as a whole, ‘is plain and capable of legal construction, the language alone must determine the permit's meaning.’ " Nat. Res. Def. Council v. Cty. of Los Angeles, 725 F.3d 1194, 1204-05 (9th Cir. 2013) (quoting Piney Run Preservation Ass'n, 268 F.3d at 270 ). However, if "the permit's language is ambiguous," the court "may turn to extrinsic evidence to interpret [the permit's] terms." Id. at 1205.

"[P]rimary responsibility for enforcement [of the CWA] rests with state and federal governments...." Piney Run Preservation Ass'n v. Cty. Comm'rs of Carroll Cty., Md., 523 F.3d 453, 456 (4th Cir. 2008). However, when the EPA fails or refuses to do so, private citizens may bring suit against "any person who is alleged to be in violation of ... an effluent standard or limitation," including an NPDES permit. 33 U.S.C. §§ 1365(a)(1), (f)(6) ; see also Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 57, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987).

B. Resource Conservation and Recovery Act ("RCRA")

RCRA aims to "reduce the generation of hazardous waste and to ensure the proper treatment, storage, and disposal of that waste which is nonetheless generated, ‘so as to minimize the present and future threat to human health and the environment.’ " Meghrig v. KFC W., Inc., 516 U.S. 479, 483, 116 S.Ct. 1251, 134 L.Ed.2d 121 (1996) (quoting 42 U.S.C. § 6902(b) ). To do so, RCRA imposes restrictions on the handling of hazardous waste. "Hazardous" waste is that which may "cause, or significantly contribute to an increase in mortality or an increase in serious ... illness," or which may "pose a substantial present or potential hazard to human health or the environment when improperly ... managed." 42 U.S.C. § 6903(5).

Like the CWA, "the principal responsibility for implementing and enforcing RCRA resides with EPA...."

Me. People's All. & Nat. Res. Def. Council v. Mallinckrodt, 471 F.3d 277, 292 (1st Cir. 2006). However, RCRA also authorizes citizen suits against "any person ... who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment." 42 U.S.C. § 6972(a)(1).

C. Primary Jurisdiction

The Supreme Court "recognized early in the development of administrative agencies that coordination between traditional judicial machinery and these agencies was necessary if consistent and coherent policy were to emerge." Port of Bos. Marine Terminal Ass'n v. Rederiaktiebolaget Transatl., 400 U.S. 62, 68, 91 S.Ct. 203, 27 L.Ed.2d 203 (1970) (citing Tex. & Pac. Ry. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553 (1907) ). "The doctrine of primary jurisdiction has become one of the key judicial switches through which this current has passed." Id.

Under the doctrine of primary jurisdiction, a court may stay "claims properly cognizable in court that contain some issue within the special competence of an administrative agency." Reiter v. Cooper, 507 U.S. 258, 268, 113 S.Ct. 1213, 122 L.Ed.2d 604 (1993). The doctrine recognizes that "in cases raising issues of fact not within the conventional experience of judges or cases requiring the exercise of administrative discretion, agencies created by Congress for regulating the subject matter should not be...