Oil-Pump

A Massachusetts federal judge ruled Sept. 13 that Exxon Mobil Corp., represented by Paul, Weiss, Rifkind, Wharton & Garrison, must face claims by environmentalists that storm surge, flooding and heavy rains could cause the oil company’s terminal near Boston to discharge pollutants.

But the judge also partly sided with Exxon Mobil, finding that plaintiffs had no standing to sue over future risks tied to rising sea levels and intensifying storm risks that were not “imminent.”  

The ruling by U.S. District Judge Mark Wolf granted in part and denied in part Exxon Mobil’s motion to dismiss claims filed in 2016 by The Conservation Law Foundation, a nonprofit advocacy group.

Though it came in a year-old New England litigation, the decision could have implications in the wake of the catastrophic storms that walloped Texas and Florida this hurricane season.

“In view of Harvey and Irma, there will certainly be arguments that a lot more is possibly ‘imminent’ than might previously have seemed. I think that today’s decision may embolden other plaintiffs lawyers to raise similar theories in other parts of the country, especially now that we have seen that what were previously thought of as 500-year storms are occurring with alarming frequency,” said Michael Gerrard, a Columbia Law School professor and senior counsel at Arnold & Porter Kay Scholer.

Still, Exxon Mobil claimed a partial victory, citing the judge’s ruling on standing.

Wolf ruled that the plaintiff couldn’t bring claims “for injuries that allegedly will result from rises in sea level, or increases in the severity and frequency of storms and flooding, that will occur in the far future, such as in 2050 or 2100.” The judge did allow claims to move forward related to ongoing alleged pollution of the Mystic River, as well as claims related to potential storm-related pollution that could occur “in the near future.”

Exxon Mobil argued that the plaintiffs based their claims on a “distant scenario” which was “contrived” and also “exaggerated and uncertain.”

In a statement, Daniel Toal, a Paul Weiss partner on the team representing Exxon Mobil, said: “We are pleased that Judge Wolf recognized CLF lacks standing to pursue claims based on climate change risks that they claimed might occur at some point in the future, including after expiration of ExxonMobil’s current permit.”

Also this week, the New York Court of Appeals denied the oil company’s bid for further review of its unsuccessful argument that Exxon Mobil accountants can withhold documents sought by New York Attorney General Eric Schneiderman’s office. The attorney general is conducting a fraud investigation into allegations that Exxon Mobil misled the public about climate change.