Climate Lawsuits Against Fossil-Fuel Corporations Receive Favorable Court Rulings

By TIM FAULKNER/ecoRI News staff

PROVIDENCE — Two local court cases addressing climate change and fossil-fuel corporations received back-to-back rulings from the same judge in U.S. District Court this week.

First, Chief Judge William E. Smith denied a request by 14 fossil-fuel companies to have a case against them moved from state to federal court, a venue they deem more friendly to their defense.

The lawsuit brought in July 2018 by then-Attorney General Peter Kilmartin accuses the corporations of creating a societal problem by failing to warn the public and regulators about the risks of climate change, an issue the companies were reportedly aware of for decades.

“The State appreciates the Court’s careful consideration of this request to transfer this case back to Rhode Island’s state courts, where it was brought in the first instance,” Attorney General Peter Neronha said in a press release. “As the federal court recognized, the state’s lawsuit contains no federal question or cause of action, rather, contains only state law causes of action regarding damage to Rhode Island’s resources that are better suited to resolution in the state courts. We look forward to proving the state’s claim in the Superior Court.”

Although similar lawsuits have been filed by major cities across the country, Rhode Island was the first state to file a case.

In February, the defendants argued that climate change and greenhouse-gas emissions happen globally and Rhode Island emissions aren’t solely the cause for what happens within its borders. Federal oversight, they argued, should preempt local efforts to assign climate-change liability.

But in his July 22 decision, Smith noted the magnitude of the litigation and said the cases and acts cited by the fossil-fuel corporations didn’t warrant a switch to federal jurisdiction.

“Climate change is expensive, and the State wants help paying for it. Specifically from Defendants in this case, who together have extracted, advertised, and sold a substantial percentage of the fossil fuels burned globally since the 1960s,” Smith wrote in his ruling. “This activity has released an immense amount of greenhouse gas into the Earth’s atmosphere, changing its climate and leading to all kinds of displacement, death (extinctions, even), and destruction. What is more, Defendants understood the consequences of their activity decades ago, when transitioning from fossil fuels to renewable sources of energy would have saved a world of trouble. But instead of sounding the alarm, Defendants went out of their way to becloud the emerging scientific consensus and further delay changes — however existentially necessary — that would in any way interfere with their multi-billion-dollar profits. All while quietly readying their capital for the coming fallout.”

In a similar case, the Conservation Law Foundation (CLF) received a favorable order in its lawsuit against the Shell terminal on the Providence River. In his July 23 decision Smith said CLF can add two parties to the lawsuit and proceed with the case, which argues that the owners of the terminal failed to prepare the facility for extreme weather events and to protect nearby neighborhoods from the impacts of climate change such as sea-level rise.

Shell’s 75-acre Providence Terminal consists of two tank facilities, an ethanol railcar terminal, a marine terminal, buildings, and related infrastructure. The site contains 25 refined petroleum product storage tanks.

The lawsuit argues that Shell has known about the risks since at least 1991 and has done nothing to address the vulnerabilities, while state and federal regulators have failed to act. CLF has argued that Shell is violating the federal Clean Water Act and Resource Conservation and Recovery Act.

“It’s time for Shell to take action and they are required to do so by law,” said Chris Kilian, vice president of strategic litigation for CLF.

CLF has a similar case moving forward against ExxonMobil that charges the corporation has known about the risks of climate change but has failed to safeguard its terminal and communities along the Mystic and Island End rivers in Everett, Mass.

In March, a U.S. District Court judge ordered the case to go forward, saying the permit for the facility requires ExxonMobil to consider threats from climate change.

In the Rhode Island lawsuit, Shell has a pending motion to dismiss its case, which it is expected to pursue.

Shell is also undergoing a permit review by the Rhode Island Department of Environmental Management. Opponents and neighborhood groups are urging DEM to attach several stipulations to the permit that will improve safety and air quality and address environmental justice issues.