A lawsuit alleges Shell Oil is failing to protect the Providence, R.I., waterfront from climate impacts. Photo credit: Jef Nickerson via Flickr

By Karen Savage

The oil giant Shell has known for decades about the dangers of not protecting its facilities—and in turn its neighbors and the environment—from the growing risks associated with climate change, alleges a lawsuit filed by the Conservation Law Foundation, a Boston-based environmental law and advocacy group that operates across New England.

And one piece of evidence comes from Shell itself, which produced a 30-minute video in 1991 that includes ominous predictions and a dire warning.

“Global warming is not yet certain, but many think that to wait for final proof would be irresponsible. Action now is seen as the only safe insurance,” says the ominous voice of the video’s unseen narrator as images of fires, floods and food shortages fill the screen.  

But despite the company’s own warning, Shell has failed to take meaningful action, said CLF.

In August, CLF filed a lawsuit in U.S. District Court for the District of Rhode Island  alleging that  the company has failed to take measures to protect its Providence Terminal—and in turn the Providence River and nearby communities—from the effects of climate change.

CLF filed a similar lawsuit last year against ExxonMobil for failing to protect the communities around its oil transfer and storage plant in Everett, Mass., against climate-change-fueled impacts. That suit is still pending in U.S. District Court.

In its newest suit, CLF alleges that Shell has failed to protect the Providence Terminal, which sits along the banks of the Providence Harbor, from rising seas, increases in the intensity of heavy rainfall, and the growing likelihood of extreme weather events—all impacts scientists have attributed to climate change. In its complaint,  CLF argues that Shell is violating the conditions of its Clean Water Act permits by failing to prevent and monitor unlawful discharges of pollution into the river and by failing to adequately plan for increasing amounts of stormwater runoff caused by climate change.

“One of the climate changes that’s already impacting New England is the more than 70 percent increase in intense rains that are being experienced in the Northeast,” said Bradley Campbell, president of the Conservation Law Foundation. “One consequence of that change is that the Shell facility is unable to manage its stormwater without discharging pollutants, in violation of its Clean Water Act permit.”

Runoff from industrial sites like Shell require stormwater discharge permits because sediment, debris and chemicals are likely to end up in waterways when it rains. Those permits require Shell to create a stormwater pollution prevention plan that includes adaptation for events that are becoming worse due to climate change.

CLF said Shell has failed to do that.

“It’s a longstanding requirement of the Clean Water Act that these facilities take the precautions they need to avoid a spill or unlawful discharge and they can’t turn a blind eye to climate conditions that are not only anticipated, but in many cases—like the increase in intense rains—already here,” said Campbell.

Campbell said Rhode Island has invested millions to clean up Narragansett Bay by addressing storm water discharges coming from city streets and other paved surfaces through combined sewer overflows.

“But if facilities like the Shell Providence facility are unprepared, there’s a real risk that that progress can be wiped out in a single storm,” he said.

J. Timmons Roberts, professor of environmental studies and sociology at Brown University and a rower with the Narragansett Boat Club said while water quality has improved, Shell’s tanks—which are located in the floodplain—are still a big concern.  Even though some have protected walls, he said he’s not convinced that they can adequately protect the Providence Terminal.

“There’s one tank with no protection at all, and I don’t know if those protective walls could stand up to waves and salt water and so on—but they need to be able to,“ Roberts said.

He said rowers as young as 13 to some older than 80 row near the tanks.

“My 14-year-old kid was rowing out of NBC [Narragansett Boat Club] and was potentially exposed to any contamination in the water,” he said. “I think it’s just the responsibility of this company and others to secure their facilities, because it’s not a question of if, but it’s a question of when they’re going to be hit by some sort of storm event.”

Roberts said when that storm hits, the nearby neighborhood will face the greatest danger.

“Their health is really the biggest concern for me, because of inhalation or other hazards like explosions or fumes and smoke—and we saw that in Houston with the chemical facility that was flooded and exploded,” Roberts said.

Justin Gundlach, a climate law fellow at the Sabin Center for Climate Change Law at Columbia Law School, said the CLF cases are a new phenomenon.

“No court has yet answered the question: Does a CWA permit require its holder to take future changes to the climate into account in order for that permit holder to be in compliance?” Gundlach said in an email.

Gundlach said that whatever happens with the CLF suits, they could set legal precedent.

“CLF brought this suit and another (v. Exxon) before Harvey wreaked havoc in the Houston region,” he said. “Whatever happens to CLF’s suits in the Northeast, we can expect to see suits pop up over harms arising from facilities’ preparation for flooding in Texas.”

Shell did not respond to a request for comment, but on its website, the company acknowledged the urgency and expense of not properly preparing for climate change:

“Coastal cities around the world face a growing existential threat from rising sea levels as a result of climate change. In fact, a 2013 World Bank study found that global flood damage in large coastal cities could cost about $1 trillion a year in the future unless something is done urgently to address the issue.”

Motiva, the company that operated the terminal until its dissolution earlier this year,  is also named in the suit. Company officials did not respond to a request for comment.

Campbell said not only is Shell required to comply with the law, but recent weather events highlight why it’s important that facilities like Shell’s are forced to prepare now.

“Hurricanes Harvey and Irma are a wake-up call for facilities like the Shell facility in Providence that are low-lying, highly vulnerable and would result in a catastrophic spill given their current lack of preparations,” said Campbell, adding that it’s a lot cheaper for companies to prepare and prevent catastrophic spills than to clean up after the fact.

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