Rhode Island Judge Refuses To Toss Climate Adaptation Lawsuit Against Shell

A federal district judge in Rhode Island has ruled to allow a climate adaptation lawsuit brought by a New England environmental law organization against oil major Shell to advance towards discovery and trial. According to Conservation Law Foundation (CLF), the organization suing Shell over climate risks to its oil storage facility located in Providence, R.I., the case proceeding to discovery marks the first time a private fossil fuel entity will need to fully answer for its knowledge of climate change and the risks it presents.

In the ruling issued on Monday, September 28, 2020, Judge William Smith of the U.S. District Court for the District of Rhode Island mostly denied Shell’s motion to dismiss the case. He did find that CLF could not sue over potential long-term or distant future risks (such as from flooding and seal level rise) to Shell’s oil terminal. But the imminent danger of near-term climate risks was clear enough, Judge Smith determined, to warrant rejecting Shell’s attempts to toss the case.

“The Complaint makes clear 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,” Smith wrote in his order.

Conservation Law Foundation sued Shell in 2017 over the company’s fuel terminal that sits along the shore of the Providence River, claiming the facility is not designed to withstand extreme storm events or coastal flooding caused by sea level rise and is therefore putting the surrounding environment and community at risk. The suit alleges Shell is violating the Clean Water Act by failing to report pollution discharges from the facility and by failing to fortify the facility in the face of climate change, which is causing sea levels to rise and leading to more intense storms and flooding. CLF is seeking civil penalties and an order requiring environmental restoration and action to prevent future harm such as an oil spill.

The lawsuit is one of several legal actions CLF is taking against major oil companies over their New England oil terminals that the environmental group says are not designed to withstand increasingly extreme weather events. The companies’ failure to adapt their terminals, CLF contends, puts the surrounding environment and communities at risk.

Judge Smith referenced this concern during a (virtual) hearing held August 13 in the Rhode Island case on Shell’s motion to dismiss. He said the situation seems to be one where “a bomb is going to go off, just don’t know when.”

Shell had argued that climate risks are “speculative” and not substantial in the near-term, and therefore it is not required to take action to fortify its Providence oil terminal.

CLF additionally brought claims under a statute governing discharge of hazardous waste called the Resource Conservation and Recovery Act. Judge Smith declined to dismiss those claims.

“Today’s decision means we will have our day in court on unlawful Shell decisions that left Providence families and all of Narragansett Bay at imminent risk of catastrophic oil and toxic chemical spills,” CLF President Bradley Campbell said in a press release responding to the judge’s ruling. “The company has for years deceived regulators and the public about the global and local risks of the climate crisis. CLF will now have the opportunity to hold Shell accountable for years of neglect and outright deceit at the expense of public safety.”