Leading environmental lawyers and scholars met at the University of Connecticut School of Law late last week to discuss the future of litigation related to climate change. The conference, presented by the law school’s Insurance Law Center and Center for Energy & Environmental Law, featured discussions on two recent climate cases that involve insurance claims: Native Village of Kivalina v. Exxon Mobil and AES v. Steadfast.
Both cases stemmed from lawsuits filed by an Alaskan Eskimo tribe that sought $200 million after being displaced because of a melting ice reef, and both cases were dismissed on different legal grounds.”These are two of the biggest cases and they both say a lot about the future of climate claims,” said Joseph A. MacDougald, executive director of the environmental law center.
Invited guests discussed the topic of business interruption insurance and the threats that changing weather patterns can pose to insurance companies and businesses. The keynote address on Oct. 5 was given by Professor Michael Gerrard, director of Columbia Law School’s Center for Climate Change.
Gerrard spent 30 years as a full-time environmental practitioner, most recently at the New York office of Arnold & Porter, where he was in charge of the environmental practice group. During his years in practice, Gerrard helped stop the construction of a Donald Trump luxury golf course in a place where pesticides threatened to contaminate nearby drinking water. He also worked after 9/11 as an environmental consultant in the rebuilding of the World Trade Center site before joining the Columbia faculty in 2009.
Gerrard spoke with Managing Editor Jay Stapleton about litigation that seeks to impose liabilities on greenhouse gas emissions and developments to watch for in the area of environmental litigation.
LAW TRIBUNE: What are some key climate change litigation developments in recent years?
MICHAEL GERRARD: A total of four lawsuits were brought in the United States using common law theories against greenhouse gas emitters seeking to recover money damages or injunctive relief. All four of those cases were dismissed at the trial level on grounds [these were political and not legal issues]. Three of them went up on appeal and of those, only two of them are still standing.
LAW TRIBUNE: So what is the lesson for environmental lawyers there?
GERRARD: I would say that practitioners have to be aware that environmental law operates in a heavy atmosphere of politics and economics. You have to be fully aware of what’s happening in those spheres as well as in the purely legal sphere.
LAW TRIBUNE: In Village of Kivalina v. Exxon, the residents of an Alaskan village sued more than 20 energy companies over flooding which the village alleged was caused by global warming to which the companies’ activities contributed.
GERRARD: That was an attempt to get money damages from greenhouse gas emitters to pay for the relocation of a village that eventually was being destroyed by a loss of sea ice. The case was dismissed by the ninth circuit because those kinds of common law claims were found to be displaced by the federal torts claim act. [The court concluded that federal common law on domestic greenhouse gases is subject to governmental authority.]
LAW TRIBUNE: What about the companion case, AES v. Steadfast, in which an an electric utility named as a defendant in Kivalina sought coverage from an insurance company for climate change liability claims?
GERRARD: It’s a significant case because it’s the only case that litigated on insurance coverage. In that case, the Virginia Supreme Court denied [insurance coverage], finding the claims were not considered an occurrence under the policy. It felt that the climate change was not an incident within the meaning of the insurance policy.
LAW TRIBUNE: What is an important case at the currently at the forefront of environmental litigation?
GERRARD: The Supreme Court ruled in 2007 in Massachusetts v. EPA that the Environmental Protection Agency has the power under the existing Clean Air Act to regulate greenhouse gases. Virtually nothing was done under that power during the remaining years of the presidency of George W. Bush. But since Barack Obama became president, the EPA has been regulating statutory emissions sources such as power plants and factories.
LAW TRIBUNE: So did Massachusetts v. EPA make it more difficult to pursue damage claims because of climate change?
GERRARD: After Massachusetts v. EPA established that EPA has that power to regulate greenhouse gases, the Supreme Court, in American Electric Power v. Connecticut, relied on that Massachusetts case to say, yes, this is the EPA’s job, it is not the job of the courts to regulate federal common law nuisance claims against carbon dioxide emitters.
LAW TRIBUNE: What types of environmental cases are likely to be permitted to move forward?
GERRARD: I think the cases that have the greatest likelihood of going forward and possibly succeeding are cases not against greenhouse gas emitters, but against those who design, build and operate buildings and infrastructure that are unable to cope with predicted climate change.
LAW TRIBUNE: Can you elaborate?
GERRARD: If you build a bridge that is so low that it will wash away during a predictable storm, those involved in the design and construction of the bridge may be exposed to liability…Those types of cases rely more on conventional legal theories of negligence in design and construction. They’re not in areas of the law where the government is pervasively regulating, such as greenhouse gas emissions and fewer things must be proven. It’s not necessary to prove that a bridge collapsed because of the emissions from a given group of companies. Only that the weather conditions were reasonably foreseeable and should been designed for those conditions.
LAW TRIBUNE: Moving forward, is it going to be more difficult in the future to pursue damages because of climate change?
GERRARD: That depends on what type of claim. If we’re talking about the same kind of public nuisance claim against greenhouse gas emitters, it’s going to be harder, because of the string of dismissals. Whereas I think claims for misdesigned infrastructure, that kind of thing, will be easier.•