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Court lifts stay on suit charging ExxonMobil is dumping crud into the Mystic River, failing to plan for potential flooding

A federal appeals court today gave the Conservation Law Foundation permission to proceed with its suit against ExxonMobil over alleged violations of the Clean Water Act at a petroleum facility in Everett off a small tributary of the Mystic River - including an alleged failure to study the potential impact of increased flooding caused by climate change on the riverside plant.

US District Court Judge Mark Wolf had agreed with the company in 2019 to stay the suit until after the EPA ruled on its application to renew its license to operate the petroleum terminal - even though the company's old permit had expired in 2014 and the agency seemed disinclined to issue a decision on its new proposed license, leaving the old license still in place. The judge agreed with the company that "the doctrine of primary jurisdiction," which assumes that regulatory agencies have more background to decide complex licensing issues than courts, came into play.

But the appeals court said that was a mistake, because the bulk of the local non-profit group's suit relates to what the company was allegedly doing under its old license and because the EPA doesn't even deal with the questions raised over climate-change regulations:

Whether and on what terms EPA issues the permit for the Everett terminal seems to us largely irrelevant to whether ExxonMobil has violated the conditions of the permit currently in effect. And it is wholly speculative whether the issuance of the permit will illuminate EPA's beliefs as to the best climate change models or how good engineers would respond to them, even if it must publish a draft permit, provide detailed explanations for the permit's conditions, and respond to public comments. ... The stay also seems unlikely to aid in the national uniformity of the meaning of terms at issue in ExxonMobil's permit or the appropriate scope of climate change regulations since EPA is not tasked with interpreting them.

So the court sent the case back to Wolf with instructions to re-start the proceedings that will ultimately lead to a trial in the case.

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