By John G. Nevius, Esq., P.E.
On Tuesday, April 19, 2011, two separate oral arguments were held that will help determine the future of climate-change litigation - and whether and how insurance coverage is available to defend against certain climate-change claims.
The first oral argument involved Connecticut v. AEP and the U.S. Supreme Court. This case is considered a bellwether on the issue of the viability of tort claims involving climate change. It is one of three closely-watched cases in this area, the other two being Comer v. Murphy Oil and The Village of Kivalina case. In Connecticut, the Court heard arguments from a group of states that sought to reduce emissions made by a handful of coal-burning utilities that represent a significant percentage of national carbon monoxide sources. Much has changed since the suit was initially filed in 2004. Among other things, an "endangerment" finding on CO2 was issued by the EPA, paving the way for federal regulation under the Clean Air Act, and subsequent steps have been taken to implement rules on emissions. This regulatory action led the Obama Administration to argue against the states. The EPA action also undermines the states' arguments that the federal courts must fill the vacuum left by the Legislative and Executive Branches' alleged failure to act, and supports those who argue in favor of dismissal and application of the so-called Political Question Doctrine.
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