Shell seeks dismissal of suit alleging climate-change threats to Providence fuel terminal

PROVIDENCE — The Conservation Law Foundation frames its case against Shell in U.S. District Court in Providence in terms of climate change.

As the atmosphere warms, seas rise and coastal storms worsen, the threat of a spill from the oil and gas giant’s marine fuel terminal on the Fields Point waterfront only grows, the foundation argues. The fossil fuels corporation headquartered in the Netherlands must be forced to step up protections for the 75-acre facility to prevent oil, ethanol and chemicals from spewing into Narragansett Bay, the foundation’s lawyers say.

“Climate change is real. The impacts of climate change are actionable,” Chris Kilian, a lawyer for the foundation, said at a hearing in the case on Thursday. “Climate change is already having documented and major impacts in Rhode Island and, more specifically, has been identified as a present and increasing threat in the Port of Providence.”

Shell counters that there is no imminent risk to the terminal, that the chances of a storm surge or extreme flood severe enough to compromise its 25 storage tanks are slim, and that the facility is in compliance with all state and federal regulations. The company says nearly all of the allegations against it should be dismissed.

“Their allegations are about a future endangerment,” Bina Reddy, a lawyer for Shell, told U.S. District Court Chief Judge William Smith. “The probabilities that they have alleged are really so low that we’re talking about a possibility.”

It has been three years since the foundation filed its lawsuit in federal court and little has changed in the broad arguments made by the two sides. But Shell is now saying that much of the case should be dismissed because the proper forum for the foundation to have raised its concerns was before state authorities last year when the terminal’s operating permit came up for renewal.

“The determination to deal with these factors is properly one for the permitting agency,” said John Guttman, a lawyer for Shell.

In the case of the terminal, that agency was the Rhode Island Department of Environmental Management, which granted the facility a new five-year permit.

“Why didn’t [the foundation] say in its comments, ‘You need to tell Shell to deal with these issues?’” Guttman continued. “DEM would have had to respond.”

He pointed to the status of a similar case that the foundation filed in Massachusetts against ExxonMobil Corp., which operates a marine terminal on the Mystic River. In March, a federal judge put the case on hold while the U.S. Environmental Protection Agency considers renewing the facility’s permit. The judge in that case concluded that the EPA may consider conditions that address the climate-change concerns raised by the foundation.

But in a brief filed with the court late last month, the Rhode Island Attorney General’s office and the DEM said there is no reason to stay the proceedings involving Shell and its Providence operations.

And Kilian said that no matter what may happen before a permitting agency, the foundation is free to go to court and try to hold Shell accountable. He and others with the foundation argue that superstorm Sandy, Hurricane Harvey and the 2010 floods in Rhode Island prove that waterfront terminals like the one in Providence are vulnerable.

“This facility is a ticking time bomb,” he said.

akuffner@providencejournal.com

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On Twitter:@KuffnerAlex