The U.S. District Court of the District of Massachusetts dismissed, in part, an environmental group’s challenge to a Boston Harbor terminal’s stormwater permit, claiming that the permit fails to protect the group’s members from future harm from climate change. The Conservation Law Foundation (CLF) filed a Clean Water Act and Resource Conservation and Recovery Act citizen suit in September 2016. Among other things, they argued the Everett Terminal’s Stormwater Pollution Prevention Plan, Spill Prevention, Control and Countermeasures Plan, and Facility Response Plan failed to account for petroleum product discharges that would occur in the future from sea level rise, storm surges, severe weather events and flooding caused by climate change.
The Everett Terminal operator moved to dismiss for lack of standing, characterizing the claims of climate change injuries as speculative and noting that even CLF’s complaint admits that any climate change impacts would not materialize until the end of this century. Although CLF portrayed its alleged climate change risks as “imminent” and any contrary arguments as “climate change denial,” the court dismissed CLF’s claims based on future impacts. Its brief opinion rejected any claims of injury “that are unlikely to occur until after the Permit has expired or, if the Permit remains in effect indefinitely, in the near future.” Although the court drew no bright line in defining “the near future,” it held that alleged injuries that would not occur until 2050 or 2100, as alleged in CLF’s complaint, to be too distant to be “imminent” in nature.
The court’s opinion adds to the relatively meager body of decisions regarding a plaintiff’s standing to sue for alleged current or future injuries from climate change. That body of law is likely to grow in the near future as the Ninth Circuit considers the United States’ petition for a writ of mandamus in an Oregon case alleging that a failure to adequately regulate against climate change infringes the plaintiffs’ civil rights and litigation begins in earnest with respect to recent suits filed by California municipalities against dozens of oil, gas and coal companies alleging current and future injuries from climate change.