Coverage For Climate Change Claims, An Uphill Fight

Previously published in Los Angeles Daily Journal

On April 19, the U.S. Supreme Court, in the case of American Electric Power Co. Inc. v. Connecticut, No. 10-174, will hear oral argument on the question of whether states and private parties may maintain actions for nuisance under federal common law based on allegations that the defendants, electric utilities, contributed to global warming by their carbon dioxide emissions. The litigation should give pause to both industrial concerns and their liability insurers. Although the defendants advance strong arguments for dismissal before the Supreme Court, these arguments are for the most part specific to the federal forum (e.g., standing, the political question doctrine, the existence of a federal claim). It seems unlikely the Supreme Court will completely close the door on these suits, and climate change litigation, in one form or another, will continue.