A New Path to Climate Justice: Adaptation Suits Against Private Entities

Climate change is here, and its impacts will only grow more severe in the coming years. As society and governments continue to pursue "mitigation" efforts to curb emissions of planet-warming gases, past emissions have already locked in a certain level of warming. Especially for countries with heavily populated coastlines, like the United States, warming will bring dangerous and costly consequences-such as sea level rise, stronger and more frequent storms, increased flooding, and more. To adequately prepare for these impacts, society needs to accelerate investments in "adaptation" measures-i.e., actions that reduce our vulnerability to anticipated climate change impacts, like elevating homes or fortifying coastal developments. In recent years, litigators have begun using the courts as a lever to achieve more effective adaptation, often by suing governmental entities to improve their adaptation planning. But in Fall 2016, Conservation Law Foundation broke new ground by suing ExxonMobil for failing to address known climate impacts likely to affect its riverfront oil distribution terminal in Everett, Massachusetts. This suit is novel in that it seeks to compel a private entity to implement more stringent adaptation measures to better protect nearby areas. This Note argues that climate litigators should learn from this innovative case and the judicial reaction to it, and then they should put those lessons into action by bringing more suits to compel private adaptation. After an introduction offering background on the case and explaining why it is groundbreaking, Part II provides several justifications for pursuing further private adaptation litigation, not the least of which is that private adaptation suits can target facilities near communities already suffering disproportionately from environmental harms and risks. Part III then delves into and analyzes the allegations and arguments at play in Conservation Law Foundation's suit.