Conservation Law Foundation, Inc. v. Shell Oil Products US et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
CONSERVATION LAW FOUNDATION, INC., )
)
Plaintiff, 	)
)
v. 	) 	C.A. No. 17-396 WES
)
SHELL OIL PRODUCTS US, et al., 	)
)
)
Defendants. 	)
___________________________________)
MEMORANDUM AND ORDER
WILLIAM E. SMITH, Senior District Judge.
Before 	the 	Court 	is 	Defendants’ 	Motion 	for 	Partial 	Summary
Judgment 	(“Defendants’ 	Motion”), 	Dkt. 	No. 	240. 	In 	their 	motion,
Defendants 	ask 	this 	Court 	to 	find 	that, 	as 	a 	matter 	of 	law, 	the
terms 	in 	specific 	permits 	governing 	the 	conduct 	of 	Defendants 	at
the Providence Terminal do not include the consideration of certain
climate change factors, thereby requiring dismissal of Counts one
through seven, nine, and ten in Plaintiff’s Third Amended Complaint
(“Complaint”), Dkt. No.45. 	The Court finds that whether the terms
of 	the 	permit 	required 	Defendants 	to 	consider 	climate 	change
factors 	is 	a 	question 	of 	fact 	that 	must 	be 	decided 	at 	trial.
Therefore, Defendants’ Motion is denied.
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I. 	BACKGROUND
A. Permits
The 	federal 	Clean 	Water 	Act 	regulates 	the 	discharge 	of
pollutants 	into 	navigable 	waters 	through 	the 	National 	Pollutant
Discharge 	Elimination 	System 	(“NPDES”), 	which 	authorizes 	either
facility-specific 	permits 	or 	coverage 	under 	statewide 	general
permits. 	33 	U.S.C. 	§ 	1311, 	1324(a)-(b). 	Rhode 	Island, 	as 	an
authorized 	NPDES 	state, 	issues 	various 	permits 	governing
stormwater 	discharges 	from 	categories 	of 	industrial 	facilities,
including petroleum bulk storage operations. 	See U.S. Envtl. Prot.
Agency, 	NPDES 	Permit 	Basics, 	https://www.epa.gov/npdes/npdes-
permit-basics 	(last 	updated 	June 	3, 	2025). 	Facilities 	covered
under 	these 	types 	of 	permits 	must 	implement 	structural 	and
operational 	controls 	to 	prevent 	the 	release 	of 	contaminated
stormwater, maintain systems capable of functioning under expected
weather conditions, and comply with sector-specific requirements.
See id.
B. Providence Location
Within 	this 	regulatory 	framework, 	Triton 	Terminaling 	LLC,
operated 	by 	Equilon 	Enterprises 	LLC 	d/b/a 	Shell 	Oil 	Products 	US,
Defendants, 	own 	and 	operate 	the 	Providence 	Terminal, 	a 	bulk
petroleum storage and distribution facility located at 520 Allens
Avenue 	along 	the 	Providence 	River. 	Defendants’ 	Statement
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Undisputed 	Facts 	(“DSUF”) 	¶¶ 1-4, 	Dkt. 	No. 	241. 	The 	facility
consists of bulk petroleum tanks, distribution infrastructure, and
stormwater 	conveyance 	systems 	situated 	on 	the 	waterfront, 	where
stored 	petroleum 	products 	be 	discharged 	into 	the 	environment
through stormwater discharge. 	See DSUF ¶ 7.
As of February 14, 2011, the Providence Terminal was subject
to 	the 	Rhode 	Island 	Department 	of 	Environmental 	Management
(“RIDEM”) Individual Rhode Island Pollutant Discharge Elimination
System. 	DSUF 	¶ 5. 	That 	permit 	was 	administratively 	continued
until 	a 	new 	permit 	was 	issued 	on 	January 	30, 	2019, 	which 	became
effective 	on 	March 	1, 	2019. 	DSUF 	¶ 5. 	That 	March 	2019 	permit
(“Operative Permit”) is one of many permits regulating conduct at
the 	Providence 	Terminal. 	DSUF 	¶ 6. 	One 	requirement 	under 	the
Current 	Individual 	Permit 	includes 	the 	creation 	of 	a 	Storm 	Water
Pollution 	Prevention 	Plan 	(“SWPPP”). 	DSUF 	¶ 6. 	Critically, 	the
SWPPP’s operative terms include concepts such as “Good Engineering
Practices” 	and 	“Best 	Management 	Practices,” 	some 	specifics 	of
which 	must 	be 	interpreted 	in 	context 	and 	do 	not 	supply 	precise
regulatory boundaries. 	DSUF ¶ 8.
C. The Instant Litigation
The presence of these broad, undefined concepts referenced in
the permit’s terms are central to the dispute in this litigation.
The 	Multi-Sector 	General 	Permit 	(“MSGP”) 	requires 	facilities 	to
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employ 	“Good 	Engineering 	Practices” 	and 	“Best 	Management
Practices.” 	The 	parties 	disagree 	sharply 	over 	whether 	those
obligations 	implicitly 	require 	Defendants 	to 	consider 	various
climate-change 	factors 	in 	the 	management 	and 	operation 	of 	the
Providence 	Terminal. 	Def’s 	Motion, 	1; 	Plaintiff’s 	Opposition 	to
Defendant’s 	Motion 	for 	Partial 	Summary 	Judgment 	(“Plaintiff’s
Opposition”), 6-7, Dkt. No. 244. 	It is against that backdrop that
the 	Conservation 	Law 	Foundation 	(“CLF”), 	Plaintiff, 	filed 	this
civil 	enforcement 	action, 	alleging 	that 	Defendants 	violated 	the
terms of the permit by failing to operate and maintain containment
and 	stormwater 	controls 	to 	address 	foreseeable 	site 	conditions,
including 	those 	driven 	by 	climate 	change. 	Compl. 	¶¶ 	126-246.
These 	climate 	change 	factors 	include 	things 	such 	increased
flooding and/or precipitation exacerbated by storms, storm surges,
rising sea levels, and increasing sea surface temperatures. 	Compl.
¶¶ 	126-127. 	Plaintiff 	asserts 	that 	Defendants 	were 	long 	aware 	—
through 	internal 	assessments, 	public 	climate 	data, 	and 	industry
information 	— 	of 	the 	vulnerabilities 	of 	coastal 	petroleum
infrastructure, 	and 	that 	its 	failure 	to 	adapt 	the 	facility
accordingly 	violated 	the 	SWPPP’s 	“best 	management 	practices” 	and
“good engineering practices.” 	Compl. ¶¶ 274-329.
Defendants 	dispute 	these 	allegations 	and 	maintain 	that 	they
have 	been 	in 	continuous 	compliance 	with 	the 	terms 	of 	the 	Current
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Individual Permit, specifically the SWPPP. 	Defendants’ Answer to
Plaintiff’s 	Third 	Amended 	Complaint 	(“Answer”) 	¶¶ 	274-329, 	Dkt.
No. 57. 	Defendants argue that the terms of the permit as written
do not impose any duty to redesign or harden infrastructure based
on 	climate-change 	factors, 	and 	that 	Plaintiff 	seeks 	to 	impose
obligations nowhere found in the permit’s text. 	See Def’s Mot. 9.
Defendants further emphasize that the terms of the permit did not
impose 	a 	generalized 	obligation 	to 	perform 	climate-change
assessments like Plaintiff claims. 	See Def’s Mot. 20.
D. New DHS Grant Conditions
In 	2024, 	RIDEM 	issued 	a 	new 	Multi-Sector 	General 	Permit 	for
Stormwater 	Discharge 	Associated 	with 	Industrial 	Activity 	(“New
Permit”), effective in 2025, which, although it does not apply to
the 	Providence 	Terminal, 	includes 	several 	provisions 	directly
addressing climate-related risks. 	DSUF ¶ 16-20. 	The updated permit
requires 	facilities 	to 	evaluate 	and 	implement 	the 	necessary
changes 	to 	accommodate 	and 	minimize 	stormwater 	discharge 	from
major storm events. 	DSUF ¶ 19. 	The New Permit also requires that
SWPPPs 	be 	updated 	to 	account 	for 	various 	climate-change
vulnerabilities. 	DSUF 	¶ 20. 	These 	measures 	(“Climate 	Change
Measures”) are closely aligned with the conditions Plaintiff argue
were implied in the original general permit.
Factual 	discovery 	has 	focused 	on 	Defendants’ 	knowledge 	of
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flood 	and 	storm 	risks, 	its 	internal 	evaluations 	of 	terminal
vulnerabilities, 	its 	operational 	decision-making 	concerning
containment 	and 	stormwater 	controls, 	and 	whether 	Shell
historically 	implemented 	measures 	consistent 	with 	industry 	best
practices. 	The 	parties 	continue 	to 	dispute 	the 	extent 	to 	which
Defendants’ corporate climate-risk materials, and its practices at
other 	terminals, 	bear 	on 	its 	conduct 	at 	the 	Providence 	Terminal.
Def’s Mot. 19-30, Pl’s Obj. 27-34.
E. Summary Judgment Motion
Defendants filed their Motion for Partial Summary Judgment on
July 1, 2025, on the grounds that the New Permit demonstrates — by
its 	own 	“new” 	terms 	— 	that 	climate-adaptation 	obligations
were not part 	of 	the 	prior 	permit 	under 	which 	CLF 	brings 	its
claims. 	Def’s Mot. 2-4. 	Defendants argue that because the revised
permit 	now 	expressly 	requires 	facilities 	to 	assess 	extreme
weather, 	storm 	surge, 	and 	sea-level 	rise, 	the 	regulator 	has
affirmatively imposed “new” duties that did not previously exist.
Id. 	According 	to 	Defendants, 	the 	fact 	that 	RIDEM 	chose 	to 	add
explicit 	climate-risk 	language 	this 	year 	confirms 	that 	earlier
iterations of permit terms did not require facilities to implement
climate-adaptation measures or redesign containment structures in
anticipation of long-range climate-change projections, otherwise,
they 	would 	not 	be 	characterized 	as 	“new.” 	Id. 	On 	this 	basis,
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Defendants contend that no violation of the prior permit can exist
as a matter of law, and that the New Permit language resolves the
interpretive dispute in its favor. 	Id.
Plaintiff 	instead 	argues 	that 	Defendants’ 	position 	does 	not
satisfy 	the 	threshold 	summary-judgment 	burden. 	Pls. 	Opp. 	22-23.
Instead, Plaintiff maintains that the New Permit does not establish
the 	absence 	of 	a 	violation 	but 	instead 	underscores 	a
central factual dispute, 	namely, 	whether 	Defendants’ 	stormwater
controls 	were 	adequately 	designed, 	maintained, 	and 	operated 	to
address conditions that were reasonably expected under the earlier
permit. 	Id. 2-8. 	Moreover, Plaintiff argues that the new permit
merely 	makes 	explicit 	what 	was 	already 	implicit 	and 	that
Defendants’ interpretation represents a contested inference about
regulatory 	intent 	rather 	than 	an 	undisputed 	fact. 	See 	id. 	9-10.
More 	critically, 	Plaintiff 	points 	out 	that 	the 	adequacy 	of
Defendants’ 	stormwater 	controls, 	its 	knowledge 	of 	site-specific
vulnerabilities, 	its 	assessment 	of 	flood 	risks, 	and 	the
availability of industry best practices all remain in dispute and
go 	to 	the 	factual 	issue 	of 	what 	was 	implied 	in 	“Good 	Engineering
Practices” 	and 	“Best 	Management 	Practices” 	in 	the 	Operative
Permit, thereby precluding summary judgment. 	Id. 22-34. 	Because
Defendant, 	as 	the 	movant, 	bears 	the 	initial 	burden 	of 	showing
that no genuine dispute of material fact exists, Plaintiff argues
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that 	any 	unresolved 	factual 	questions 	— 	particularly 	those
relating 	to 	Shell’s 	operational 	decisions, 	internal 	climate-risk
assessments, historical flooding patterns, and the practicability
of mitigation measures—preclude judgment as a matter of law. 	Id.
Thus, 	although 	Defendants 	rely 	on 	the 	New 	Permit 	to 	argue
that 	the 	legal 	debate 	is 	resolved 	in 	its 	favor, 	Plaintiff
emphasizes that the relevance and meaning of the New Permit terms
themselves 	involve 	factual 	and 	interpretive 	disputes 	that 	cannot
be 	decided 	on 	summary 	judgment. 	Under 	the 	governing 	standard,
Plaintiff argues that Defendants have not met their burden, because
whether 	the 	earlier 	terms 	required 	Defendants 	to 	account 	for
foreseeable 	risks 	related 	to 	climate 	change 	remains 	materially
disputed on the record. 	Id. 13-14.
II. 	LEGAL STANDARD
The 	Court 	must 	grant 	summary 	judgment 	to 	Defendants 	if 	they
show “that there is no genuine dispute as to any material fact and
[they are] entitled to judgment as a matter of law.” 	Fed. R. Civ.
P. 56(a). 	“[A] dispute is genuine when the evidence is such ‘that
a reasonable jury could resolve the point in favor of the nonmoving
party.’” 	Quintana-Dieppa 	v. 	Dep’t 	of 	the 	Army, 	130 	F.4th 	1, 	7
(1st 	Cir. 	2025) 	(quoting 	Doe 	v. 	Trs. 	of 	Bos. 	Coll., 	892 	F.3d 	67,
79 (1st Cir. 2018)). 	A fact is material when it has “the ‘potential
to affect the outcome of the suit under the applicable law.’” 	Id.
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(quoting 	Cherkaoui 	v. 	City 	of 	Quincy, 	877 	F.3d 	14, 	23 	(1st 	Cir.
2017)). 	In making its analysis, the Court must view “‘the entire
record 	in 	the 	light 	most 	hospitable 	to 	the 	[nonmoving 	party],’”
drawing “‘all reasonable inferences in that party’s favor.’” 	Id.
(quoting 	McCarthy 	v. 	Nw. 	Airlines, 	Inc., 	56 	F.3d 	313, 	315 	(1st
Cir. 	1995)). 	Notably, 	the 	moving 	party 	bears 	the 	burden 	of
demonstrating 	that 	“no 	genuine 	dispute 	as 	to 	any 	material 	fact”
remains 	and 	that 	the 	“movant 	is 	entitled 	to 	judgment 	as 	a 	matter
of law.” 	Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
III. DISCUSSION
The central issue here on partial summary judgment is whether
the 	earlier 	version 	of 	the 	SWPPP 	terms 	still 	in 	effect 	under 	the
Operative 	Permit 	implicitly 	required 	operators 	to 	consider
climate-related 	risks 	when 	evaluating 	the 	adequacy 	of 	their
containment 	and 	stormwater 	systems. 	Those 	terms 	imposed 	broad,
performance-based 	obligations—such 	as 	maintaining 	controls
adequate 	for 	“expected” 	conditions 	and 	properly 	operating 	and
maintaining those systems, while the 2024/2025 revisions expressly
required facilities to evaluate “Climate Change Measures” such as
extreme precipitation, storm surge, and flood events. 	DSUF ¶¶18-
22.
Thus, 	the 	summary-judgment 	analysis 	turns 	on 	how 	to
characterize 	the 	relationship 	between 	the 	terms 	of 	the 	Operative
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Permit 	and 	the 	and 	New 	Permit. 	Determining 	whether 	the 	revised
terms clarified a preexisting obligation or instead introduced an
entirely new requirement is not a strictly legal exercise; on the
contrary, 	it 	depends 	on 	facts 	surrounding 	regulatory 	practice,
industry 	expectations, 	and 	what 	conditions 	were 	reasonably
understood to fall within expected operational parameters of “Good
Engineering 	Practices” 	and 	“Best 	Management 	Practices” 	at 	the
time. 	Those matters cannot be resolved solely by reading the text
of the permit itself. 	Instead, that analysis requires evaluating
evidence 	— 	expert 	views 	on 	best 	practices, 	Defendants’ 	internal
understanding 	of 	climate-related 	risks, 	industry 	responses 	to
emerging climate data, and perhaps even the regulator’s historical
approach to performance-based stormwater obligations.
That determination is inherently factual. 	Defendants, as the
moving 	party, 	bear 	the 	initial 	burden 	of 	demonstrating 	that 	no
genuine dispute of material fact existed on the question of whether
climate-related 	considerations 	were 	part 	of 	the 	prior 	MSGP’s
implied requirements. 	See Celotex Corp., 477 U.S. at 322-23. 	To
meet that burden, Defendants need to show that the only reasonable
inference 	from 	the 	record 	was 	that 	climate-related 	obligations
were 	not 	understood 	to 	be 	part 	of 	the 	earlier 	permit. 	Based 	on
the number of factual disputes that require resolution, Defendants
have 	failed 	to 	meet 	their 	burden. 	See 	Greenburg 	v. 	Puerto 	Rico
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Mar. 	Shipping 	Auth., 	835 	F.2d 	932, 	936 	(1st 	Cir. 	1987) 	(“The
precincts 	patrolled 	by 	Rule 	56 	admit 	of 	no 	room 	for 	credibility
determinations, 	no 	room 	for 	the 	measured 	weighing 	of 	conflicting
evidence such as the trial process entails, no room for the judge
to 	superimpose 	his 	own 	ideas 	of 	probability 	and 	likelihood 	(no
matter how reasonable those ideas may be) upon the carapace of the
cold record.”).
Plaintiff, in turn, must only point to evidence that creates
a 	genuine 	dispute 	- 	such 	as 	expert 	testimony 	that 	coastal
facilities 	were 	already 	expected 	to 	consider 	climate-driven
flooding risks, documents showing Shell internally evaluated those
risks, 	or 	industry 	materials 	suggesting 	that 	best 	practices 	had
begun to shift during the relevant period. 	See Celotex Corp., 477
U.S. 	at 	324. 	Therefore, 	the 	Court 	finds 	there 	is 	sufficient
evidence 	to 	this 	effect 	in 	the 	record, 	when 	viewed 	in 	the 	light
most favorable to the non-moving party, to prohibit partial summary
judgment at this time.1
Defendants 	have 	not 	carried 	their 	burden. 	The 	dispute 	over
1 	A 	similar 	case 	is 	pending 	in 	the 	United 	States 	District
Court 	of 	the 	District 	of 	Connecticut. 	See 	Conservation 	Law
Foundation, 	Inc. 	v. 	Shell 	Oil 	Products 	US, 	et 	al., 	No. 	3:21-CV-
933 	(D. 	Conn. 	filed 	July 	7, 	2021). 	The 	Court 	there 	came 	to 	a
similar conclusion when deciding on a motion for summary judgment,
explaining that, the permit in question in that case “unambiguously
imposes 	a 	minimization 	duty 	that 	in 	turn 	references 	and
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whether 	the 	climate-change 	factors 	were 	implied 	in 	the 	Operative
Permit SWPPP terms cannot be resolved in one direction as a matter
of 	law; 	it 	remains 	a 	live 	factual 	controversy. 	For 	the 	reasons
explained 	above, 	the 	Court 	finds 	that 	this 	factual 	dispute 	is
sufficient to preclude summary judgment.
IV. 	CONCLUSION
For 	the 	reasons 	explained 	above, 	Defendants’ 	Motion 	for
Partial Summary Judgment, Dkt. No. 240, is DENIED.
IT IS SO ORDERED.
William E. Smith
Senior District Judge
Date: December 23, 2025
incorporates 	best 	industry 	practice.” 	Id. 	Text 	Order 	Denying
Motion 	for 	Partial 	Summary 	Judgment, 	Dkt. 	No. 	302 	(D. 	Conn. 	Oct.
12, 	2023). 	“If 	the 	best 	industry 	practice 	[] 	require[s]
consideration 	of 	climate 	change 	factors, 	[] 	the 	permit 	includes
this requirement despite the absence of more explicit language []
about climate change factors. Whether best industry practice is to
consider 	climate 	change 	factors 	is 	a 	factual 	question 	that 	the
Court cannot resolve at this time . . .” 	Id.
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