Carbon Dioxide

Oral Argument in Kivalina: Winds of Change or Climate Change Liability Suits Becalmed?

December 4, 2011 20:16
by J. Wylie Donald
On November 8-9, 2011 an Arctic gale bore down on the peninsulas, islands, salt marshes and beaches of the Alaska littoral.  Named the Bering Sea Superstorm it pounded Alaska with 8-10 foot storm surges, wind gusts up to 75 mph and blizzard conditions.  One small community was particularly fearful.  Many readers already know of whom we are speaking:  Kivalina.  The National Weather Service wrote:  "WIDESPREAD MAJOR COASTAL FLOODING AND SEVERE BEACH EROSION IS EXPECTED IN THE FOLLOWING AREAS: ... 4. THE CHUKCHI SEA COAST FROM CAPE KRUSENSTERN TO POINT HOPE. THIS INCLUDES THE VILLAGES OF NOME AND KIVALINA WHERE MAJOR DAMAGE FROM COASTAL FLOODING AND STRONG WINDS IS EXPECTED.  Fortunately, the seawall at Kivalina held. While unusual, this was one storm of thousands that have visited high winds and storm surge upon Alaska's shoreline over the millennia.  Last Monday a storm of a different sort broke. Although not even rated on the Saffir-Simpson scale, the verbal gusts exhaled before the Ninth Circuit Court of Appeals in Native Village of Kivalina v ExxonMobil Corp. may have substantially more effect than any Arctic storm.  Or they may not. (Click here for the video or audio link or oral argument.) Kudos must be extended to Matt Pawa (Appellant Kivalina) and Daniel Collins (Defendants/Appellees) for masterful argument.  Both were completely on top of their game, whether it was jousting with the Court or each other over the Restatement (Second) (and sometimes Third), laying out their key arguments or responding to pointed questions from Judges Thomas, Clifton or Pro (on temporary assignment from the District of Nevada). (For those to whom Kivalina is not familiar, in a nutshell, a native Alaskan village on the shores of the Chukchi Sea has brought suit against electric utilities, oil companies and one coal company.  The complaint asserts the defendants are responsible for excess emissions of greenhouse gases, which have led to global warming, which has resulted in delayed formation of arctic sea ice and early melting as well, which has accelerated the erosion caused by winter storms.  The plaintiffs seek damages for the cost of relocating their village.  The suit was dismissed on political question grounds by the District Court for the Northern  District of California; it is now on appeal to the Ninth Circuit.) Mr. Pawa opened his argument with the proposition that it is black letter law that no balancing of interests is needed where an intentionally caused nuisance is causing a claimant serious harm.  He cited numerous Restatement sections in support.  The Court seemed skeptical.  Judge Clifton asserted in his question that balancing was called for in the Restatement.  Judge Pro wanted to know what instructions Mr. Pawa would give to the jury.  Judge Clifton queried:  "Why is it so difficult to find a case that remotely resembles this one?"  Mr. Pawa pointed to People v. Gold Run Ditch & Mining Co., 66 Cal. 138, 4 P. 1152 (1884), which established, he said, that valid nuisance claims lie against all polluters of a common resource.  (We, of course, take strong exception to any referral to carbon dioxide as pollution in light of its ubiquity, natural presence, and lack of toxicity in the atmosphere.  The parallels to water vapor - the most prevalent greenhouse gas and in no one's estimation a pollutant - are striking.) Although  there was not enough time in argument to fully develop Gold Run Ditch, it is worth a moment to consider.  There the California Supreme Court was asked to enjoin hydraulic mining which was despoiling California's rivers and threatening agricultural interests.  In holding that an injunction against the hydraulic mining operator should issue, the Court wrote: But a legitimate private business, founded upon a local custom, may grow into a force to threaten the safety of the people, and destruction to public and private rights; and when it develops into that condition, the custom upon which it is founded becomes unreasonable, because dangerous to public and private rights, and cannot be invoked to justify the continuance of the business in an unlawful manner. Every business has its laws, and these require of those who are engaged in it to so conduct it as that it shall not violate the rights that belong to others. Accompanying the ownership of every species of property is a corresponding duty to so use it as that it shall not abuse the rights of other recognized owners ... Upon that underlying principle, neither State nor Federal legislatures could, by silent acquiescence, or by attempted legislation ... divest the people of the State of their rights in the navigable waters of the State for the use of a private business, however extensive or long continued .... As we have already said, the rights of the people in the navigable rivers of the State are paramount and controlling.  66 Cal. at 152. The effect of Gold Run Ditch and a parallel decision in federal court, Woodruff v. North Bloomfield Mining Co., 18 F. 753 (1884), effectively ended hydraulic mining in California.  Whether a similar ruling could be used against entities emitting carbon dioxide into the atmosphere remains to be seen. Another interesting argument broached by Mr. Pawa concerned what he referred to as trivial emitters.  Judge Thomas played into his hand with a question about whether his driving to work made him a defendant.   According to Mr. Pawa Section 36 of the Restatement  (Third) takes care of that issue and negates liability to trivial emitters.  That section provides:  "When an actor’s negligent conduct constitutes only a trivial contribution to a causal set that is a factual cause of physical harm under § 27, the harm is not within the scope of the actor’s liability."  Mr. Pawa would permit the defendants to demonstrate that they constitute trivial contributors to the global warming problem. In closing, Mr. Pawa cited the substantial precedent in his clients' favor.  The Second Circuit reversed the trial court and found standing for the plaintiffs in Connecticut v. AEP, 582 F.3d 309 (2d Cir. 2009), which was not reversed by the Supreme Court.  Likewise the appellate panel in Comer v. Murphy Oil USA, 585 F.3d 855 (5th Cir. 2009), also reversed the trial court and found standing for the climate change liability plaintiffs.  (Mr. Pawa acknowledged that the decision had been vacated and cited the decision for the panel's thinking, not as precedent.)  Last, in Massachusetts v. EPA, 127 S.Ct. 1438 (2007), the Supreme Court also found standing for an entity alleging damage from greenhouse gas emissions. Mr. Collins responded to Mr. Pawa's arguments and knocked down plaintiffs' claim that black letter law established that balancing was not required.  Mr. Collins pointed to comment e of section 821B of the Restatement (Second) which requires an assessment of reasonableness whether the allegation is an intentional, reckless or negligent nuisance.  Further, the balancing required by plaintiffs' claims is "utterly without precedent."  "But balancing is what courts do all the time," interjected Judge Pro.  "Nothing on this scale has ever been remitted to a court," rejoined Mr. Collins.  This is not a case about a discreet pollution site; it is a case of global dimensions and there is no traceability of the emitted carbon dioxide (as the plaintiffs conceded). The Court was not so easily put off and brought up AEP, where the Second Circuit had permitted plaintiffs to proceed with their greenhouse gas liability claim, and the Supreme Court had not reversed.  Mr. Collins had seen that softball coming:  AEP is different because some of the plaintiffs were sovereigns, which was not the case here. Mr. Collins closed with strong points on his clients' primary position:  displacement of the federal common law applies to both injunctive and damages remedies.  This was established in Middlesex County Sewerage Auth. v. Sea Clammers, 453 U.S. 1, 13 (1981).  The reason is simple.  When Congress crafted the regulatory framework establishing the Clean Air Act, which displaced injunctive remedies, see American Electric Power v. Connecticut, Congress did not provide for any compensatory relief to an aggrieved private party.  Accordingly, a damages remedy is also displaced and the plaintiffs' claim is barred.  As the Ninth Circuit had itself held in In re Exxon Valdez, 270 F.3d. 1215 (9th Cir. 2001):  "a nuisance theory would enable a federal district judge to substitute a different balancing of interests from the one made by the agency to which Congress assigned the job".  In our view the Court's decision is not likely to be the final curtain.  If it goes in favor of the plaintiffs, the defendants will certainly appeal.  And if the defendants prevail, the state law claims (dismissed by the federal district court without prejudice) are likely to be refilled, particularly with the invitation set forth in by the Supreme Court in AEP:  "None of the parties have briefed preemption or otherwise addressed the availability of a claim under state nuisance law. We therefore leave the matter open for consideration on remand."

Carbon Dioxide | Climate Change Litigation | Supreme Court

Virginia Supreme Court Decides First Climate Change Insurance Case

September 16, 2011 14:32
by J. Wylie Donald
This morning the Virginia Supreme Court decided the first climate change liability insurance coverage case:   The AES Corp. v. Steadfast Ins. Co., Record No. 100764 (attached). It held that there was no covered “occurrence” and that therefore the trial court properly dismissed the insured’s claim for coverage. Followers of this blog are well familiar with Steadfast and the underlying Kivalina case.  For those new to this subject, this coverage case arose out of the climate change nuisance damages case, Native Village of Kivalina v. ExxonMobil Corp., CV 08-1138 SBA (N.D. Cal.), in which claimants asserted that defendants' greenhouse gas emissions resulted in warmer winters, which lead to melting of sea ice and erosion of the shoreline around their community to the point that their village was set to fall into the sea.  They brought suit against oil and gas companies, electric utilities and a coal company, seeking damages for an alleged nuisance.  In Steadfast one of the Kivalina defendants’ insurers (Steadfast), after first defending under a reservation of rights, brought a declaratory judgment action against its insured (electric utility AES), seeking to avoid coverage under its general liability policies.  Shortly thereafter Steadfast filed a motion for summary judgment asserting that there was no occurrence, and that coverage was barred by the loss-in-progress and pollution exclusions. AES initially prevailed and defeated Steadfast’s motion.  AES then moved for summary judgment on the duty to defend and Steadfast cross-moved.  This time Steadfast gained victory.  The trial court issued a very brief opinion holding:  “Steadfast has no duty to defend AES in connection with the underlying Kivalina litigation because no 'occurrence' as defined in the policies has been alleged in the underlying Complaint.”  AES appealed. In most jurisdictions, including Virginia, an “eight corners” rule is applied:  “only the allegations in the complaint and the provisions of the insurance policy are to be considered in deciding whether there is a duty on the part of the insurer to defend and indemnify the insured.”  Opinion at 7 (citations omitted).  Coverage under the Steadfast policies hinged on whether there was an occurrence, specifically defined to mean “an accident, including continuous or repeated exposure to substantially the same general harmful condition.”  In Virginia the terms “occurrence” and “accident” are synonymous and an “accident” is commonly understood to mean “an event which creates an effect which is not the natural or probable consequence of the means employed and is not intended, designed, or reasonably anticipated.”  Id. at 9. There was no dispute that AES intentionally released carbon dioxide as part of the combustion process at its power plants.  But intentional acts do not preclude coverage:  “[W]hen the alleged injury results from an unforeseen cause that is out of the ordinary expectations of a reasonable person, the injury may be covered by an occurrence policy provision.”  Id. at 10 (citing 20 Eric M. Holmes, Appleman on Insurance 2d § 129.2(I)(5) (2002 & Supp. 2009)).  However, “If a result is the natural and probable consequence of an insured’s intentional act, it is not an accident” and coverage will be barred.  Id. at 9.  The Court summarized the rule it would apply: Thus, resolution of the issue of whether Kivalina’s Complaint alleges an occurrence covered by the policies turns on whether the Complaint can be construed as alleging that Kivalina’s injuries, at least in the alternative, resulted from unforeseen consequences that a reasonable person would not have expected to result from AES’s deliberate act of emitting carbon dioxide and greenhouse gases.  Id. at 10-11. Notwithstanding that the Kivalina plaintiffs specifically alleged negligence, and that AES adduced evidence that the Kivalina plaintiffs were arguing on appeal before the Ninth Circuit that their claim sounded in negligence, the Court followed strict adherence to the eight-corners rule: Kivalina plainly alleges that AES intentionally released carbon dioxide into the atmosphere as a regular part of its energy-producing activities. Kivalina also alleges that there is a clear scientific consensus that the natural and probable consequence of such emissions is global warming and damages such as Kivalina suffered. Whether or not AES’s intentional act constitutes negligence, the natural and probable consequence of that intentional act is not an accident under Virginia law.  Id. at 12. Further, “[e]ven if AES were negligent and did not intend to cause the damage that occurred, the gravamen of Kivalina’s nuisance claim is that the damages it sustained were the natural and probable consequences of AES’s intentional emissions.”  Id. at 13.  In sum, “If an insured knew or should have known that certain results would follow from his acts or omissions, there is no 'occurrence' within the meaning of a comprehensive general liability policy.”  Thus, the trial court was affirmed. As noted at the outset, this is the first skirmish of what is certain to be a protracted battle between insurers and insureds.  There are 50 other jurisdictions (including the District of Columbia) and this is only one issue based on one complaint and one insurer's policy language.  There is a long way to go before we will have clarity here. Post scriptum:  Many will recall that Steadfast argued in its papers and before the Court that the pollution exclusion also barred coverage; AES responded that it had not been properly raised.  The Court did not even address the subject, apparently feeling that it was enough to cite to AES's grounds for appeal, which did not include the pollution exclusion.  So even in Virginia, there are still coverage battles to be fought. AES Corp. v. Steadfast Ins. Co., No. 100764, slip op. (Va. Sept. 16, 2011).pdf (64.69 kb)

Carbon Dioxide | Climate Change Litigation | Insurance

Damascus Citizens for Sustainability Attack Marcellus Shale Gas

August 28, 2011 21:10
by J. Wylie Donald
No, this is not jihad or the last gasp of a d esperate despot.  Instead, it is a citizens group taking on the government and seeking to compel the completion of environmental impact statements (EISs) prior to the promulgation of regulations for the development of shale oil wells in the Delaware River Basin.  If they are successful, they will certainly delay the drilling of hundreds if not thousands of wells.  And as part of that success, the role of natural gas as a "bridging" fuel to ease us into a carbon-free world may be substantially diminished. Taking a page from the playbook of past environmental challenges, Damascus Citizens for Sustainability, Inc. filed suit earlier this month against the Army Corps of Engineers, Fish and Wildlife Service, National Park Service, Department of the Interior, EPA and Delaware River Basin Commission (DRBC), as well as various officers in their official capacities to block hydraulic fracturing ("fracking") activities in the Delaware River Basin. The gravamen of the complaint (attached) is that the agencies have violated federal law by failing to require the completion of an environmental impact statement before promulgating regulations allowing natural gas development within the Basin.  Plaintiff seeks declaratory and injunctive relief.  DCS is a non-profit conservation group whose members "live, work and recreate" in the Basin. Complaint ¶ 11.  Members of DCS include organic farmers, bird watchers, hunters and fishermen. Id. ¶ 12.  Some will take offense at the disengagement of some of the plaintiff's members who "escape on weekends and vacations to their refuge in the Upper Delaware Basin where they can commune with nature in the bucolic setting of the Basin."  Id.  As summarized by the complaint, "For each member of DCS, the Basin's unspoiled resources are his or her own Walden Pond."  Id. Defendants are government agencies responsible in one way or another for the watershed.  As such, effects from fracking (which, according to the complaint, will result in between 15,000 and 18,000 natural gas wells in the Basin, id. ¶ 62) fall under their jurisdiction. A substantial hurdle in plaintiff's suit is whether the National Environmental Policy Act (NEPA) (which requires EISs) even applies to an interstate commission such as the DRBC. As the complaint acknowledges, "DRBC has stated that it is not subject to NEPA, noting that four of the five commissioners are appointed by states.  DRBC thus refuses to comply with NEPA."  Id. ¶ 32.  There is support in the case law for this position:  "That DRBC is a federal agency for purposes of NEPA is very doubtful."  Delaware Water Emergency Group v. Hansler, 536 F. Supp. 26, 35 (E.D. Pa. 1981).  DCS argues that, among other things, the DRBC is a federal agency as it was established by federal legislation, publishes its regulations in the Code of Federal Regulations, publishes its activities in the Federal Register, is listed as a U.S. Government Agency by USA.gov and is viewed as a federal agency by the Council of Environmental Quality, which oversees the federal government's compliance with NEPA.  Complaint ¶¶ 26, 28, 29. If DCS gets past that hurdle then numerous aspects of fracking may come under the microscope.  Allegations include:  highly contaminated return flows of water, gas and other materials, confidential fracking fluid formulas containing "carcinogenic, acutely toxic, chronically toxic and bioaccumulative" materials, methane emissions as greenhouse gases, "systematic evidence of methane contamination of drinking water from gas extraction activities", "large-scale changes in land use and increased water withdrawals," "significant air pollution from truck exhaust emissions," "serious vehicular accidents,"  "significant public health problems" and  permanent change to the rural and scenic character of the area.  Id. ¶¶ 50, 51, 54, 59, 62, 63, 65 and 66.  It is obvious that full development of all these topics will substantially delay the development of the Marcellus shale. To focus on just one aspect of the allegations, it is worth looking at greenhouse gas emissions.  The conventional wisdom is that because natural gas is composed of lighter, less complex hydrocarbons, and therefore when combusted it emits less carbon dioxide per BTU than other fossil fuels, it is to be preferred over oil and coal.  NaturalGas.org reports on its webpage that "The combustion of natural gas emits almost 30 percent less carbon dioxide than oil, and just under 45 percent less carbon dioxide than coal."  (Particulates, SOx and NOx and mercury are likewise much lower.)  Methane, an even more potent greenhouse gas than carbon dioxide, and a significant component of natural gas, likewise is reported to have better characteristics in natural gas. An EPA/Gas Resources Institute 1997 study concluded "that the reduction in emissions from increased natural gas use strongly outweighs the detrimental effects of increased methane emissions."  Id.  Accordingly, many believe that if one substitutes natural gas for coal and oil, one could continue to grow the economy while at the same time reducing greenhouse gas emissions. This proposition is under attack.  Citing a 2010 EPA study, DCS pleads that EPA "revised its estimated potential emissions from gas well completions from 0.02 tons of methane per well to 177 tons of methane per well."  Complaint ¶ 63. We tracked down the EPA study and some additional scholarship.  In Greenhouse Gas Emissions Reporting from the Petroleum and Natural Gas Industry, Background Technical Support Document, the EPA walks away from its earlier study:  "new data and increased knowledge of industry operations and practices have highlighted the fact that emissions estimates from the EPA/GRI study are outdated and potentially understated for some emissions sources."  Background Technical Support Document at 8.  One of those sources is unconventional natural gas production, aka fracking.  Appendix B of the study lays out the sources of the new data and they are thin: four presentations at a 2007 EPA Natural Gas STAR Production Technology Transfer Workshop .  Nevertheless, they may be a game changer. Cornell researchers Howarth, Santoro and Ingraffea took the new numbers and applied them to the proposition that natural gas should be used "as a transitional fuel, allowing continued dependence on fossil fuels yet reducing greenhouse gas (GHG) emissions compared to oil or coal over coming decades."  Howarth at 2.  They concluded that shale gas has a greenhouse gas footprint substantially larger than previously thought and that, depending on circumstances, the footprint of coal can be superior to that of shale gas (i.e., smaller).  Id. ¶ 8.  Thus, "the large GHG footprint of shale gas undercuts the logic of its use as a bridging fuel over coming decades, if the goal is to reduce global warming."  Id. One thing that was striking in the EPA study was the acknowledgment of "great variability in the natural gas sector and [that] the resulting emission rates have high uncertainty."   Background Technical Support Document at 86.  EPA also noted that its results do not include reductions due to control technologies.  Id. at 87.  Howarth et al. acknowledge the efficacy of technology and that "methane emissions during the flow-back period in theory can be reduced by up to 90%."  Howarth ¶ 7.  In practice, they assert it does not happen.  If Damascus Citizens for Sustainability has anything to say about it, we will know more. Damascus Citizens for Sustainability, Inc. v. U.S. Army Corps of Engineers et al, 11-cv-03857 Complaint (Aug. 10, 2011).pdf (828.33 kb)

Carbon Dioxide | Carbon Emissions | Climate Change Litigation | Greenhouse Gases | Sustainability

American Electric Power v. Connecticut: 8-0 the Supreme Court Rules Federal Common Law is Displaced

June 20, 2011 20:25
by J. Wylie Donald
The moment we have been waiting for since 2004 (when the first climate change liability case was filed) finally arrived. The Supreme Court today rendered its opinion in American Electric Power Co., Inc.. v. Connecticut.  As many predicted following oral argument, the use of the federal common law of nuisance to limit carbon dioxide emissions simply is not a viable theory because it has been displaced by the Clean Air Act and the EPA's steps to implement the Act. For those who have not yet read the opinion, it is straightforward. Following the Supreme Court's 2007 decision in Massachusetts v. EPA, the EPA undertook to begin the regulation of carbon dioxide emissions. AEP at 2.  Within the framework of the Clean Air Act it issued its "Endangerment Ruling" (76 Fed. Reg. 66496), and then adopted final rules regulating emissions from light-duty trucks, initiated a joint rulemaking covering medium and heavy-duty vehicles, began phasing in requirements for best available control technology for major greenhouse gas emitters, and commenced a rulemaking on emissions from fossil-fuel fired power plants. Id.at 2-3.  That rule is due to be final in May 2012.  Id.at 3. With those steps, and the comprehensive activities authorized under the Clean Air Act (id. at 10-11), the Court applied the simple test:  "whether congressional legislation excludes the declaration of federal common law is simply whether the statute 'speak[s] directly to [the] question' at issue." Id.at 10. The Court held:  "the Clean Air Act and the EPA actions it authorizes displace any federal common law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants." Id. The Court responded to arguments that the EPA was only beginning to regulate but had not yet finished the process by emphasizing that it was the "delegation [that] displaces federal common law.". Id.at 12 (emphasis added). That is, even if the EPA chose not to regulate carbon dioxide emissions, "the federal courts would have no warrant to employ the federal common law of nuisance to upset the agency's expert determination." Id. Some may recall that the political question doctrine was front and center in the decisions below. See id. at 5-6.  Here, however, the Court mentions it only indirectly.  In describing the "prescribed order of decisionmaking" (i.e., expert agencies and then federal judges), "the expert agency is surely better equipped to do the job than individual district judges issuing ad hoc, case-by-case injunctions." Id.at 14. Notwithstanding the apparently simple rule and its application, we do not expect AEP to end climate change liability litigation.  State nuisance law (which plaintiffs pleaded) remains. Although the Court offered no opinion on such a theory's efficacy, it did give a hint of where it might land:  "the Clean Water Act does not preclude aggrieved individuals from bringing a 'nuisance claim pursuant to the law of the source state.'" Id. at 15-16 (citing International Paper Co. v. Ouellette, 479 U. S. 481 (1987)). Accordingly, the case was remanded to the Second Circuit. Further, the significance of Justice Sotomayor's recusal (which we called in an earlier post) manifested itself. The Court split 4-4 on the issue of standing (which compelled it to hear the case on the merits).  Id. at 6.  This jurisdictional dispute could surface in the future when Justice Sotomayor is included in the full panel. She presumably would be in favor of broader standing, which is likely to support more claims of aggrieved climate change plaintiffs. Last, the Court offered some helpful commentary for future carbon-dioxide liability insurance coverage cases.  We have written often on how carbon dioxide should not fall within the meaning of pollution in a comprehensive general liability policy's pollution exclusion.  The Court appears to agree.  In discussing the scope of legislative activity needed to preempt federal common law, the Court stated:  "Congress could hardly preemptively prohibit every discharge of carbon dioxide unless covered by a permit. After all, we each emit carbon dioxide merely by breathing." Immediate effects of the decision will be filings by the defendants in the Kivalina v. ExxonMobil case before the Ninth Circuit for dismissal.  Undoubtedly the justices deciding Steadfast Insurance Co. v. AES Corp. will read the decision; how it will affect them is hard to say.  It should have no effect on the multiple climate change lawsuits orchestrated by Our Children's Trust.  And over the long term, it likely will have the effect of forcing plaintiffs' to come up with new climate change liability theories.  That will not be necessary, of course, if (as has been suggested) Congress acts to remove carbon dioxide from EPA's jurisdiction.  In that case, we just might find AEP revived.

Carbon Dioxide | Climate Change Litigation | Legislation | Supreme Court

Our Children's Trust Unleashes Wave of Climate Change Litigation

May 5, 2011 10:40
by J. Wylie Donald
When we wrote last month concerning the implications of the upcoming decision by the Supreme Court in American Electric Power v. Connecticut, we were fully expecting to wait for the decision to test our powers of prognostication.  We were very wrong.  In a collection of lawsuits and regulatory filings across the nation, environmentalists have joined the climate change litigation fray in a very big way.  Here is what we wrote:  "[A dismissal of Connecticut] says nothing about state law nuisance claims, nor new theories that have not yet been tested, nor even thought up. We strongly believe that carbon dioxide liability suits will be with us for a while yet. Our reason: climate change is ongoing and those whose interests are harmed will look for succor. So theories of liability will be spun and suits will be brought. And such suits will require a defense." Here is what has happened:  On Monday, May 4, in state courts across the nation lawyers representing children and young adults filed (and apparently will continue to file) suits seeking to compel State governments to recognize the application of the public trust doctrine to greenhouse gas emissions and to take action to abate those emissions.  The environmental group coordinating these actions is Our Children's Trust, based in Eugene, Oregon.  Its mission:  "Protecting Earth's Climate for Future Generations."  It is joined by Kids vs. Global Warming, whose "youth activists" are named plaintiffs in a number of the actions.  So far (according to the Associated Press), cases have been filed in California, Colorado, Minnesota, Montana, New Mexico, Oregon, and Washington, and also in federal court in California.  Our perception is that these jurisdictions are friendlier to environmental issues than other places.  In those other places regulatory petitions are being filed. We won't go into the details of all of these filings but here is the gist of the claims brought in New Mexico: Sanders-Reed v. Martinez.  New Mexico is at risk from the effects of climate change.  From loss of snowpack to drought to extreme heat waves, as temperatures rise life in New Mexico is being degraded.  Enter the State.  Before the current administration of Governor Martinez, New Mexico was taking steps to limit the discharge of greenhouse gases within New Mexico.  State agencies studied the problem and made recommendations.  The governor issued executive orders.  The Environmental Improvement Board promulgated greenhouse gas regulations.  New Mexico joined the Western Climate Initiative.  Id. ¶¶ 61-73, 76.  Then Governor Martinez took office at the beginning of this year.  According to the complaint, she attempted to block the publication of the greenhouse gas rules and announced that she would keep New Mexico from joining a regional cap-and-trade program. She also removed all of the members of the Environmental Improvement Board because she believed the Board was anti-business.  The Small Business-Friendly Task Force, created by the Governor, has recommended that New Mexico shift to “observer” status in the Western Climate Initiative. Id. ¶¶ 74-76.  Plaintiffs, one teen-ager (a member of Kids vs. Global Warming) and one environmental group, sued under the public trust doctrine, which has not yet been applied to the atmosphere.  In a nutshell, plaintiffs assert that "Defendant State of New Mexico has failed in its fiduciary duty to recognize and protect our atmospheric public trust resource, thereby injuring these Plaintiffs."  Id. ¶ 19.  In more detail, plaintiffs desire a declaration by the New Mexico court that "(1) the public trust doctrine is operative in New Mexico and, pursuant to this doctrine, the State holds the atmosphere in trust for the public; (2) the State has an affirmative fiduciary duty to establish and enforce limitations on the levels of greenhouse gas emissions as necessary to protect and preserve the public trust in the atmosphere; (3) the State’s fiduciary duty to protect the atmospheric trust is defined by the best available science; and (4) the State has breached its fiduciary duty to protect the public trust in the atmosphere by failing to exercise its right of control over the atmosphere in a manner that promotes the public’s interest in the atmosphere and does not substantially impair this resource."  One will note that the claim is for declaratory relief, but not damages.  Plaintiffs' goal is to stabilize before 2100 the earth's atmosphere at 350 ppm carbon dioxide.  Id. ¶¶ 51-53.  Today it is at 390 ppm and increasing.  Id. ¶¶ 43, 45.  Failure to achieve such stabilization will lead to catastrophe.  Id. ¶ 46. (If you wish to read other complaints and petitions, visit Our Children's Trust's website.) There are a host of issues before these lawsuits are successful.  First, is the atmosphere subject to the public trust doctrine?  Second, can private parties require the State to act to preserve that trust?  Third, what are the elements of standing for those parties?  Fourth, what is the "best available science"?  Fifth, could federal preemption apply?  And probably many more.  But plaintiffs have a lot of opportunities to address these questions and will undoubtedly learn from one case so as to improve the others. In the meantime, the battle for control of the public dialog will continue.  Environmentalists have chosen a broad-based attack and will certainly make the most out of any successes they have.  Further, although we will not link the Tuscaloosa tornadoes and this year's record Mississippi flooding to climate change, some certainly will because more extreme weather is a central prediction of the climate change story.   Those kinds of extreme weather events may be all that is necessary to push climate change back onto the federal agenda.   Perhaps the most interesting facet of this set of cases is how it juxtaposes with Connecticut.  In that case, States are suing private parties to compel them to abate carbon dioxide emissions.  Commentary on the Supreme Court argument suggests that the Court may have some sympathy to States who are trying to remedy a problem that the federal government is ignoring.  Now private parties are suing those same State governments asserting that they are not doing enough either. And where does all this leave our prediction.  We are right about new theories, right about claims of ongoing injuries and right that more suits would be brought.  We are wrong that those suits would be suits for liability.  We are wrong today, anyway.

Carbon Dioxide | Climate Change | Climate Change Litigation | Greenhouse Gases | Supreme Court

The Implications of American Electric Power v. Connecticut for the Duty to Defend

April 24, 2011 18:52
by J. Wylie Donald
We were interviewed by Business Insurance last week after the Virginia Supreme Court heard argument in AES Corp. v. Steadfast Insurance Co. The topic du jour:  what would be the effect of the U.S. Supreme Court's decision in American Electric Power v Connecticut. Obviously, an insurance readership would very much like to know if carbon dioxide liability was something they needed to continue to worry about. Much of the blogosphere has concluded that the justices didn't give much credence to the public nuisance theories of the plaintiffs (we reserve judgment on that conclusion - there were some pretty tough questions posed to the appellants too). If that is so, then carbon dioxide liability is something like Y2K, right? Unfortunately, we fear that is not the case. The concerns over Y2K reached their zenith at 1159 on December 31, 1999. By 1201 on January 1, 2000 most everyone had slapped each other on the back and moved on. Story over. Concerns over carbon dioxide liability are unlikely to have that sharp crest.  If a decision favorable to carbon dioxide emitters is issued by the Supreme Court, that will only mean that federal common law nuisance claims cannot move forward. It says nothing about state law nuisance claims, nor new theories that have not yet been tested, nor even thought up. We strongly believe that carbon dioxide liability suits will be with us for a while yet. Our reason:  climate change is ongoing and those whose interests are harmed will look for succor. So theories of liability will be spun and suits will be brought.  And such suits will require a defense.  All of which leads us back to AES v. Steadfast.  The Virginia Supreme Court will render a decision on one state's law on likely only one issue. Indeed, at oral argument, Steadfast's counsel conceded the result would be different in other jurisdictions. Thus, insureds concerned about carbon dioxide liability should be paying attention to choice of law rules, and to the range of issues where choice of law matters. Let's look at just the two issues in dispute in AES, the application of the pollution exclusion and the meaning of occurrence. The Wisconsin Supreme Court has already ruled that exhaled carbon dioxide is not a "pollutant" and numerous jurisdictions have held that a so-called "absolute" pollution exclusion is not absolute.  Donaldson v. Urban Land Interests, Inc., 564 N.W.2d 728, 730 (Wis. 1997); Am. States Ins. Co. v. Koloms, 687 N.E.2d 72 (Ill. 1997) (carbon monoxide); W. Am. Ins. Co. v. Tufco Flooring E., Inc., 409 S.E.2d 692 (N.C. Ct. App. 1991) (floor sealant); Cont’l Cas. Co. v. Rapid-Am. Corp., 593 N.Y.S.2d 966 (1993) (asbestos); Keggi v. Northbrook Prop. & Cas. Ins. Co., 13 P.3d 785 (Ariz. Ct. App. 2000) (bacteria).   As for occurrence, in many jurisdictions there is no question that an occurrence is determined by looking at the intentionality of the injury from the subjective standpoint of the insured, rather than the reasonably foreseeable standard argued by the insurer in AES. Compare Ohio Cas. V. Henderson, 939 P.2d 1337 (Ariz. 1997); Am. Family Mut. Ins. Co. v. Pacchetti, 808 S.W.2d 369 (Mo. 1991) with Brief of Appellee, AES Corp. v. Steadfast Ins. Co., No. 100764 (Va. Sup. Ct. Oct 8, 2010).  Accordingly, it would be extremely shortsighted for insureds to assume every jurisdiction is like every other.  Potential carbon dioxide liability defendants should take two steps going forward. They should ascertain what state's law will be applied on the liability contract they are purchasing today and how that law is likely to address the carbon dioxide liability coverage questions. And they should be asking the same questions for past occurrence-based policies.  And of course, if the oracles and seers who have channeled the Supreme Court turn out to be wrong, the need for coverage and the answers to these questions will manifest themselves much sooner. Brief of Appellee, AES Corp. v. Steadfast Ins. Co..pdf (182.69 kb)     

Carbon Dioxide | Climate Change Litigation | Insurance | Supreme Court

Oral Argument in Steadfast v AES Seemed to Favor AES

April 20, 2011 07:25
by J. Wylie Donald
Supreme Court argument is delicious - for lawyers anyway. Following months of preparation, thousands of pages of research, and draft after draft, finally the parties are called to the fore and bluntly told: "Make your best arguments, counsel." In that context, I ventured to Richmond, Virginia this morning to hear the able presentations on behalf of The AES Corporation (appellant - insured) and Steadfast Insurance Company (appellee - insurer). The parties were locked in a contest over who should pay for the defense of Native Village of Kivalina v. ExxonMobil Corp., the climate change liability suit emanating from the northern shores of Alaska, where native Inupiat residents assert that various utilities, oil companies and a coal company are liable for the emission of carbon dioxide, which resulted in global warming, which melted winter sea ice, which loss permitted fierce winter storms to erode the peninsula on which the residents made their home. The case is the first climate change coverage case with all the implications primacy may have. In the proceedings below, the trial court had initially denied the insurer's motion for summary judgment based on (as argued by the insured) the existence of factual issues. The court specifically held that it could not decide whether the pollution exclusion could be applied. The insured then turned around and filed its own summary judgment motion on the duty to defend. The insurer cross-moved and argued that there was no "occurrence" as the allegations in Kivalina were all intentional acts leading to reasonably foreseeable injury. It also argued that the policies' pollution exclusions applied. The court issued a terse order: "no 'occurrence' as defined in the policies has been alleged in the underlying Complaint." With this prelude, the parties crossed lances before seven justices of the Virginia Supreme Court. In our view, the insured carried the day (and, as explained below, this is not just because AES cited our law review article in their reply brief). Counsel kept it simple. First he opened with a nod to the pollution exclusion and emphasized what was clearly set out in the briefs: the pollution exclusion issue was decided in the insured's favor (the court ruled a fact issue existed) and the insurer did not assign cross-error in its response to the insured's appeal. Accordingly, there was no issue before the Court. Next he turned to the issue that was appealed: whether an allegation of negligence, even if mixed in with numerous allegations of intentionality, constituted an "occurrence." More specifically, did the allegations of Kivalina contain an "accident"? Accident was undefined in the policies, but well-defined under Virginia law. Even if the act was intentional (such as the emission of CO2 by a utility), if the harm was unplanned, the carrier was required to defend. An allegation that the alleged tortfeasor "should have known" (as was asserted in the Kivalina complaint) was sufficient to establish the duty to defend. In keeping with his theme, counsel provided a simple example: if he intentionally changed lanes, but failed to look in his rear-view mirror and clobbered someone, surely that was covered. And it would be covered even if it was reasonably foreseeable that someone would be injured if he failed to look. It was a good example (as we will discuss). Counsel for Steadfast likewise appeared to be starting her discussion with the pollution exclusion. Labeling it a "toxin" (a poisonous substance that is a specific product of metabolic activities ???), she then proceeded to make the point that the insured was sued for its routine business decisions, which insurance does not cover. Further, if the four corners of the policy are compared with the four corners of the complaint (the so-called 8-corners rule which is adopted in Virginia) then it is beyond cavil that the Kivalina plaintiffs alleged that AES knew it was emitting carbon dioxide and knew that that would cause harm. At which point Justice Mims interrupted and attempted to pin down the parties' positions. As he heard it, the insurer argued that there was no coverage for intentional acts with known consequences, and AES argued coverage was lost only for intentional acts with intentional consequences. Insurer counsel refined that slightly: coverage was lost for intentional acts with reasonably anticipated consequences. And then that automobile example resurfaced - embraced by the chief justice. Frankly, I did not follow insurer counsel's rejoinder but I will attempt to recreate it. First, the policy's terms address "accidents" not negligence. Negligence is not necessarily the same as an accident. For example, while speeding and hitting someone would be both an accident and negligent, drag racing and hitting someone might be negligent but it would not be an accident. Furthermore, mere words in a complaint (like the "negligence" used in the Kivalina complaint) were not sufficient. The court must look, counsel argued, to the "facts and circumstances," which showed that there was no error, no mistake, no mishap. It was volitional and deliberate conduct. Counsel then turned to the pollution exclusion and pointed out that the Kivalina complaint talked about pollution everywhere. "But," pointed out Chief Justice Kinser, "isn't the only ruling below that there was a fact issue precluding summary judgment?" Justice Mims chimed in and emphasized the failure to assign cross-error. Although insurer counsel asserted that it was argued on the second motion, Chief Justice Kinser spoke again and affirmed that there needed to be cross-error assigned. Rebuttal was quick. Counsel stated: "We won the pollution exclusion issue and the trial court never ruled differently." And he effectively brought up again his lane-changing example. "If the Court adopts the insurer's position there will be no coverage in lots of areas because foreseeable harm is common. The issue is whether the harm was intended." Prognostication is the devil's own but one can't help oneself. The pollution exclusion issue seems that it will be decided entirely on procedural grounds: as it was not raised below, it was not preserved for appellate review. The occurrence issue is a little more difficult but, as was effectively pointed out in the moving brief and in argument, the Kivalina plaintiffs chose their words and they chose negligence. How could the Court possibly ignore that?

Carbon Dioxide | Climate Change | Climate Change Effects | Climate Change Litigation

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Oral Argument is April 19 in American Electric Power v. Connecticut and in AES Corp. v. Steadfast Insurance Co.

April 5, 2011 21:09
by J. Wylie Donald
Where I grew up (outside of Boston) April 19 is of singular moment. On that day, over 200 years ago, the British marched from Boston to destroy the military stores in Concord. But Paul Revere and William Dawes got the word out first and the Minutemen gathered at the Old North Bridge, stood their ground and then chased the British back to Boston. The locals celebrate by "marching to Concord" every year to witness the reenactment. April 19 this year also has significance, but the action will not be "by the rude bridge that arched the flood."  Rather, readers of this blog will be focused on two Supreme Courts - one in Washington and the other in Richmond. On the docket?  Two climate change cases. In Washington, the U.S. Supreme Court will hear oral argument in American Electric Power v. Connecticut.  This case is the bellwether for climate change liability suits and will test whether public nuisance under federal common law provides a viable theory for shifting damages arising from climate change to carbon dioxide emitters. Almost four dozen amicus briefs have been filed and where the Court will land is anybody's guess. EPA is attempting to regulate carbon dioxide using the Clean Air Act but other lawsuits and Congress challenge that effort. Will that eviscerate the argument that carbon dioxide regulation has been committed to the political branches of the federal government?  Does the fact that the case was brought by state attorneys general prima facie establish that this case is all about a robust federalism?  We hope to have a better inkling on where the Court will land after we hear the oral argument. Across the Potomac and several miles down the road, the Virginia Supreme Court is hearing AES Corp. v. Steadfast Insurance Co. on the very same day.  (It seems too unlikely to be a coincidence.  Readers will remember that Stop the Beach Replenishment, Inc. was heard the same day the New Jersey Supreme Court took argument on City of Long Branch, both beach replenishment cases, see climatelawyers.com).  That case tests whether there will be insurance coverage under general liability policies for carbon dioxide liability. The insurer filed the case as a declaratory judgment action disclaiming coverage for one of the utilities sued in Native Village of Kivalina v. ExxonMobil Corp.  The trial court, in the briefest of opinions, held that because "no 'occurrence' as defined in the policies [was] alleged in the underlying Complaint," there was therefore no coverage. AES appealed directly to the Virginia Supreme Court, which granted certification.  Before the court are arguments about the scope of an "occurrence", but also over whether a pollution exclusion applies, even though the trial court rendered no opinion on that topic.  The implications of a decision are potentially colossal, especially if the U.S. Supreme Court permits Connecticut to move forward. Steadfast is the first climate change liability coverage suit and, to our knowledge, not a single climate change liability defendant has been defended by its insurer in any of the three damages cases (Comer v. Murphy Oil, California v. General Motors, Kivalina). Two hundred years ago on April 19th was fired the "shot heard round the world."  The metaphor is not perfect but this month on the same day similarly significant salvos will be set off in the climate change liability and coverage wars. Stay tuned. 20100205 Order for Summary Judgment for Steadfast against AES.pdf (120.02 kb)

Carbon Dioxide | Climate Change Litigation | Supreme Court | Utilities

Twentieth Century Reanalysis Project Provides Tool to Assess Extreme Weather - Part I

February 15, 2011 21:07
by J. Wylie Donald
What if we had it all wrong?  What if the weather really wasn't getting more extreme, wasn't getting hotter (or colder, wetter, drier), wasn't changing?  Then  any efforts to rein in carbon dioxide emissions would be misguided and, worse, costly.  Is there any evidence that scientists are getting it all wrong?  The Twentieth Century Reanalysis Project is working on figuring that out.  An international team of climatologists enlisted millions of hours of supercomputing time and plugged in over a century of weather data.  The goal is to permit climate researchers to better address issues such as the range of natural variability of extreme events such as floods, droughts and hurricanes. To quote the study's lead author, Gil Compo of the National Oceanic and Atmospheric Administration, "This reanalysis data will enable climate scientists to rigorously evaluate past climate variations compared to climate model simulations, which is critical for building confidence in model projections of regional changes and high-impact, extreme events." For those of you who remember the moment in the sun (of the popular press) of chaos theory, there was something called the Lorenz Butterfly Effect, that affirmed that the flapping of a butterfly's wings in Brazil could, through various weather processes, lead to tornadoes in Texas.  It may frustrate lawyers to learn that proximate cause does not hold in weather analyses.  Very small changes in initial conditions can result in very large differences in weather outcomes.  Hence the importance of the Reanalysis Project in assessing actual weather conditions and changes over time. Small differences in words may also make a difference.  Query whether there is a difference between "extreme weather" and "extreme weather disasters".  Anne Jolis of the Wall Street Journal European Edition set off a small controversy this weekend when she or her editors dropped a word from a quote from one of her climate research sources when she provided the Journal's spin on "climate alarmists."  Ms. Jolis offers an antidote to climate change-induced extremes in weather:  "There is at least one climate lesson that we can draw from the recent weather: Whatever happens, prosperity and preparedness help."  That is, countries that are economically advanced are more likely to fare better in the face of Mother Nature's onslaughts.  She compares Australia's response to Cyclone Yasi (only one death) to that of Myanmar when Cyclone Nargil ultimately caused the deaths of 130,000 people.  Therefore, concludes Ms. Jolis, economic activity should be enhanced, not diminished as alarmists would do. The butterfly effect here is the quote relied on by Ms. Jolis:  ""There's no data-driven answer yet to the question of how human activity has affected extreme weather," adds Roger Pielke Jr., another University of Colorado climate researcher."  What Dr. Pielke actually said, as set forth on his blog, "There's no data-driven answer yet to the question of how human activity has affected extreme weather disasters."  So was the omission of "disaster" meaningful?  Dr. Pielke's peers apparently thought so and queried him, thus prompting the blog response.  We don't intend to resolve that question.  We do wish to point out, however, that such editing can call into question the validity of an entire article.  Ms. Jolis makes a fair point about economic growth being an important tool to address the problems of climate change.  But we think she loses some credibility when her sources assert they were misquoted.  As Dr. Pielke points out, ín the climate change debate "anything that can be misinterpreted usually will be."

Carbon Dioxide | Climate Change Effects | Weather

Climate Change and the Supreme Court Part II: Certiorari Granted in Connecticut v. American Electric Power

December 6, 2010 07:35
by J. Wylie Donald
It doesn't take much insight to conclude that today's granting by the Supreme Court of the petition for certiorari in Connecticut v. American Electric Power could be the start of a whole new era in climate change liability lawsuits. If the Supreme Court comes down on the side of the plaintiff States, it may become open season on utilities, coal and petrochemical companies, automobile manufacturers, and anyone else a litigation-minded plaintiff wishes to mulct in damages for carbon dioxide emissions and climate change. Potential defendants need to take steps now to identify their insurance coverage and be prepared to give notice. The Supreme Court last looked at climate change in 2007 when it concluded in Massachusetts v. EPA, 549 U.S. 497 (2007), by a 5-4 decision, that the Clean Air Act required the USEPA to consider whether carbon dioxide and other greenhouse gases were air pollutants within the meaning of the Act. The issue this time is whether the courts should be imposing judicial remedies for injuries allegedly arising from the emission of carbon dioxide, an alleged nuisance. Few reading this blog will need an introduction to Connecticut v. American Electric Power. I won't go over it other than to remind readers that it was filed in New York federal court in 2004 by several states against a collection of carbon dioxide-emitting utilities and was then consolidated with similar cases filed by public interest groups. The basic allegation was that the utilities' carbon dioxide emissions constituted a public nuisance and the plaintiffs sought injunctive relief compelling the utilities to reduce their emissions. On motion, the trial court dismissed the case concluding that the political question doctrine applied because only the political branches (i.e., the legislative and executive arms of the government) could appropriately balance the array of environmental, economic and other issues presented. An appeal followed to the Second Circuit, which reversed and held that the political question doctrine does not preclude federal common law nuisance claims. Following denial of a petition for en banc review, the petition for certiorari was filed on August 2, followed shortly by an amicus curiae brief from the Obama administration. The federal government asserted that the Second Circuit's decision should be vacated because the government was developing regulations and that the courts should stay out. Of course Connecticut v. American Electric Power is not alone. Private and public plaintiffs have brought suit for alleged climate change losses arising in Mississippi, California and Alaska. Although all three cases have been dismissed, the appeal of one was withdrawn, the appellate panel in the second reversed the dismissal, but which was then vacated when the en banc court accepted review and then could not muster a quorum, and the third is pending before the Ninth Circuit. See Cal. v. Gen. Motors Corp., No. C06-05755, 2007 WL 2726871 (N.D. Cal. Sept. 17, 2007), appeal dismissed, No. 07-16908 (9th Cir. June 24, 2009); Comer v. Murphy Oil Co., 2007 WL 6942285 (S.D. Miss. Aug. 30, 2007), rev'd, 585 F.3d 855 (5th Cir. 2009), reh'g granted, 598 F.3d 208 (5th Cir.), appeal dismissed, 607 F.3d 1049 (5th Cir. 2010); Native Village of Kivalina v. ExxonMobil Corp., 663 F.Supp.2d 863 (N.D. Cal. 2009), appeal pending, No. 09-17490 (9th Cir. Nov. 5, 2009). Quite clearly, the last chapter on these types of lawsuits has not been written. Reading the tea leaves on Connecticut v. American Electric Power will be difficult. To grant a petition for certiorari, only four justices need to approve. With the retirement of Justices Stevens (author of Massachusetts v. EPA) and Souter (who joined in the opinion), and the recusal from Connecticut of Justice Sotomayor (who heard argument at the Second Circuit but did not sign the opinion), a 4-4 decision in Connecticut is certainly possible. That would leave the Second Circuit's decision intact without a Supreme Court decision (which might bode well for the appeal of Kivalina before the Ninth Circuit). IMPLICATIONS FOR A DECISION Emitters of carbon dioxide are hoping for a clean decision that puts the climate change liability genie back in the bottle and lays the theory of federal common law nuisance in its grave. But what if that does not occur? There is certainly a fair chance that the justices either affirm the theory, or, 4-4, do not reject it. In that case, plaintiffs' lawyers are very likely to be emboldened and bring other suits. Some target industries have already been identified. When the results of USEPA's greenhouse gas reporting rule are collated, other industries may find themselves in the crosshairs. The time to identify insurance coverage is not when half a dozen claims have been filed in jurisdictions across the nation demanding an answer within 30 days. Climate change defendants and potential defendants should take steps now to prepare for future claims, most notably because of the risk they may lose insurance coverage for these claims if they are not reported timely. Many will rely on notice to their current insurer and that is a good strategy, so far as it goes and only if that carrier agrees to coverage. But besides one's current policy, one should also be considering prior "occurrence-based" policies, which could be triggered based on allegations of injury-causing events occurring over time. It does not require much imagination to analogize the time periods over which, for example, glaciers have melted, snowpack has become depleted, erosion has increased, and water supplies have been drawn down to other drawn-out injuries that established the "continuous trigger" rule that attached multiple policies. Some states have a bright line rule for notice. If it is not given promptly, dismissal based on late notice is a likely result. Other states are more lenient and require prejudice to the insurer. New York until recently was a no-prejudice-to-the-insurer state. But the law changed in 2009 to require the insurer to show prejudice (or the insured to show no prejudice) - but it was not retroactive. Accordingly, insureds with policies subject to New York law (which is often the case due to a choice of law provision in the policy) prior to 2009 still need to give notice promptly. Even in those states that require prejudice to be shown, one cannot know how the case law on prejudice will evolve in the context of climate change; hence prompt notice is a good idea in other states as well. Notice here is not as easy as it may sound. Unlike Superfund cases where the (alleged) responsible entity is identified by the claimant and therefore can be identified to the insurance company, carbon dioxide emission liability can fall to any fossil-fuel fired plant owned by the corporate entity, including potentially those operated by subsidiaries. Accordingly, those subsidiaries' policies may need to be tracked down and placed on notice as well. Taking liberties with Ben Franklin's adage, an ounce of protection is worth a pound of cure. Should climate change claims get the green light from the Supreme Court, policyholders would be wise to have located all of their protection ahead of time.

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