October 1, 2009

Climate Change Litigation: Ripe for Growth?

R. Trent Taylor, Esq.

For some time, the U.S. energy industry has feared the prospect of large-scale climate change litigation (CCL) that seeks to link emissions of greenhouse gases (GHG) to global warming. Thus far though, only a handful of such suits have been filed, and none has yielded any judgments against the energy industry. This begs the question of whether the energy industry can now stop worrying about CCL.

The answer is a resounding "No!" The CCL threat is far from over. The current state of CCL is akin to that of a toxic mold spore lying dormant in a basement. While harmless in its dormant state, if more favorable conditions are introduced, it can activate and experience explosive growth in a very short period. So it is with CCL.

CCL has the potential to explode out of its dormancy.

Current Major Lawsuits

Currently, three major federal climate change lawsuits are pending. Two cases, Connecticut v. American Electric Power (AEP) and Comer v. Murphy Oil USA, Inc., were dismissed at the trial court level on political question grounds and now are on appeal. The AEP case involves public nuisance claims brought by eight states against electric power companies based on their emissions. The Comer case is a class action lawsuit in which the plaintiffs allege that emissions from energy companies magnified weather events, including Hurricane Katrina. The third case, Native Village of Kivalina v. ExxonMobil Corp., is at the motion to dismiss stage in a California federal court. The plaintiff is an Alaskan village alleging that emissions from energy companies have contributed to global warming, resulting in erosion and threatening the village’s existence.