It is proving very difficult for plaintiffs to survive a motion to dismiss, let alone obtain judicial relief associated with the alleged results of climate change.
Earlier this week, on May 20, 2013, the Supreme Court of the United States denied certiorari to plaintiffs in the Native Village of Kivalina lawsuit against various "energy companies." The plaintiffs were appealing the Ninth Circuit's dismissal of Kivalina's claims for damages under a federal common law claim of public nuisance, which the court held were displaced by the federal Clean Air Act.
Earlier this month, on May 14, 2013, the Fifth Circuit, in Comer v. Murphy Oil USA, ended the plaintiffs' suit against various "energy companies" that were allegedly responsible for the damages associated with Hurricane Katrina. This class action lawsuit of Mississippi residents had an unusual procedural path and was recently dismissed on procedural grounds, but this action left the prior substantive decision undisturbed.
Given the lack of success in the courts and the seemingly low likelihood of significant action by the U.S. Congress regarding climate change, it appears that the efforts of the administrative branch (and U.S. EPA in particular) will continue to serve as the battleground for climate change laws and policy in the near future
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