Global Warming - the Latest News
As Mike Aylward posted in his Year in Review post, global warming claims look to be a major issue in the coming year. Indeed, a study released Wednesday by Ernst & Young ranked climate change as the number 1 issue facing the insurance industry. A new action filed in San Francisco by the Alaskan Native coastal village of Kivalina is the latest in this trend. In the action, the village alleges that BP America, Chevron, Peabody Energy, Duke Energy and the Southern Company are responsible for the impact of global warming which has led to the forced relocation of the village due to flooding caused by the changing Arctic climate. The suit accuses the companies of creating a public nuisance. The village also alleges that the companies conspired to “mislead the public about the science of global warming” by “convincing the public at large and the victims of global warming that the process is not man-made when in fact it is.” The estimated cost of relocating the village is up to $400 million.
Similar public nuisance allegations have been previously dismissed on the basis that those cases required the courts to make impermissible political decisions. This includes the California Attorney General’s attempt to force car manufacturers to reduce vehicles' emissions of carbon dioxide that was dismissed last September by the federal district court in San Francisco. In Mississippi, property owners similarly filed suit against oil, coal and chemical companies, claiming that their activities contributed to climate change that magnified the effects of Hurricane Katrina. In denying a motion for class certification against the defendants for these global warming claims, Mississippi District Court Judge Senter commented “I foresee daunting evidentiary problems for anyone who undertakes to prove, by a preponderance of the evidence, the degree to which global warming is caused by the emission of greenhouse gasses.” Comer v. Nationwide Mut. Ins. Co., 2006 U.S. Dist. Lexis 33123 (S.D. Miss. 2006). Lawyers for the village of Kivalina have stated that the difference between its action and prior global warming actions is the inclusion of conspiracy claims against the defendant companies. The viability of this claim in the action, whether the defendants have coverage including the application of pollution exclusions, whether the harm is expected or intended and numerous other important and difficult coverage issues have yet to be addressed by the courts. One thing is certain however, this case appears to be far from the last type of action to be filed or addressed by the courts on global warming issues.
