The US District Court of the District of Massachusetts partly dismissed an environmental group's challenge to a Boston Harbour terminal's stormwater permit, which claimed that the permit failed to protect the group's members from future harm caused by 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, it argued that the Everett terminal's Stormwater Pollution Prevention Plan, Spill Prevention, Control and Countermeasures Plan and Facility Response Plan had failed to account for the petroleum product discharges that would occur in future from sea level rises, storm surges, severe weather events and flooding caused by climate change.

The Everett terminal operator moved to dismiss the claims for lack of standing. It characterised the claims of climate change injuries as speculative, noting that even the CLF's complaint admitted that any climate change effects would not materialise until the end of the 21st century. Although the CLF portrayed its alleged climate change risks as "imminent" and any contrary arguments as "climate change denial", the court dismissed the CLF's claims based on future effects. 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 did not define 'the near future', it held that alleged injuries which would not occur until 2050 or 2100, as alleged in the CLF's complaint, could not be considered imminent.

The court's opinion adds to the relatively meagre body of decisions regarding a plaintiff's standing to sue for alleged existing or future injuries as a result of climate change. However, this body of law is likely to grow as the Ninth Circuit considers the US petition for a writ of mandamus in an Oregon case alleging that a failure to regulate adequately against climate change infringes the plaintiffs' civil rights. Further, litigation will begin in earnest regarding recent suits filed by California municipalities against dozens of oil, gas and coal companies alleging existing and future injuries as a result of climate change.

For further information on this topic please contact Jim Wedeking, David T Buente Jr or Justin Savage at Sidley Austin LLP by telephone (+1 202 736 8000) or email (jwedeking@sidley.com, dbuente@sidley.com or jsavage@sidley.com). The Sidley Austin LLP website can be accessed at www.sidley.com.

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