- The current push to roll back climate change regulation at the federal level also could result in increased litigation
As federal efforts to roll back environmental regulations from the Obama era continue, environmental groups have been increasingly filing lawsuits against industry alleging damages related to climate change impacts, using the Clean Water Act and other federal and state authorities to challenge claimed industry inaction in accounting for these impacts. These lawsuits signal a growing trend of novel claims against energy companies and other industries with sizeable greenhouse gas (GHG) emissions, claiming a causal connection with climate change and sea level rise. The most recent lawsuits show that extreme weather events such as Hurricanes Harvey and Irma likely will intensify the interest of private citizens and, increasingly, municipalities and counties in filing such lawsuits and other suits pursuing other types of claims relating to climate change.
Novel Clean Water Act Litigation Premised on Anticipating Climate Change Impacts
In late August, the Conservation Law Foundation (CLF), a New England environmental group, sued Shell Oil in the wake of Hurricane Harvey to force industrial facilities to address climate change impacts under the Clean Water Act (CWA). The lawsuit , CLF v. Shell Oil Products US, et al., No. 1:17-cv-00396, which was filed on August 28th in the U.S. District Court for the District of Rhode Island, alleges that the company failed to address potential future impacts from climate change in the CWA-mandated stormwater pollution prevention plan (SWPPP) for its Rhode Island Facility. Under the CWA, a SWPPP must identify potential industrial pollution sources that might affect stormwater discharge quality, and describes practices a facility will use to reduce pollutants and assure compliance with stormwater permit conditions.
CLF claims that facilities such as Shell’s, which sits on the banks of the Providence River, are in a position to discharge toxic chemicals and harm neighborhoods in the event of a natural disaster. CLF’s complaint alleges:
Shell has not taken sea level rise, increased and/or more intense precipitation, increased magnitude and frequency of storm events, and increased magnitude and frequency of storm surges—all of which will become, and are becoming, worse as a result of climate change—into account in its Clean Water Act-required and enforceable...
